United States v. Willie George Childress

America, Appellee, STATES UNITED CHILDRESS, Appellant. George

Willie 90-3230, 90-3222, 90-3223

Nos. to 93-3073.

and 93-3066 Appeals, Court

United States of Columbia Circuit.

District 1, 1995. March

Argued July 1995.

Decided Rehearing Suggestions for

Rehearings and Sept. Denied

En Banc

PER CURIAM: appeal This is a arising consolidated the second and third trials of members of a by Rayful narcotics led Edmond Edmond, III. See United States v. (D.C.Cir.1995). We remand the con- spiracy Hardy conviction of Robert and the weapons murder and convictions of Colum- Leckar, Stephen court, appointed C. proceedings, bus Daniels for further and we argued appellants Jeffrey the cause for L. addition, affirm remaining all In convictions. Thompson Raynice Thompson. appellants we remand the of all except cases Morgan Ronald resentencing. for Kohlman, Gary court, appointed by W. argued appellant for cause Constance D. I. INTRODUCTION

Perry. Appellants partici- all stand convicted of Garber, court, appointed by

William J. pating in or conducting business with the argued the appellant cause for Raehelle Ed- Edmond conspiracy, organized narcotics mond. enterprise quantities that sold massive cocaine in the District of Columbia the late Johnson, court, appointed by Stuart F. 1980s. The organization activities of the are argued appellant the cause for Robert Edmond, detailed in 1084-86. Hardy. McNeil Twenty-nine people originally were indicted on a Hart, conspiracy, number of counts of court, nareot- appointed by Dennis M. activities, offenses, weapons ics-related argued appellant the cause Ronald Mor- murder and other gan. crimes of violence. August the district court severed the McIntosh, Jr., appointed Ernest W. by the counts of alleging weapons the indictment court, argued appellant the cause for Willie offenses and crimes of violence from those George Childress. alleging conspiracy drug-related activity. The court further divided the defendants in- Levin, appointed by court, Arthur M. drug dicted crimes and into argued appellant the cause for Columbus groups according two to their roles Daniels. enterprise, designating prin- the leaders and Rosen, appointed court, Sol Z. cipal organization members of the Group I joint on the appellant briefs for Melvin E. peripheral and the more including all actors — Stewart. appellants Group here —as II. Bollwerk, Group Three trials were held. Helen M. I de- Atty., Assistant U.S. 1989; fendants were Holder, Jr., ap- tried late Atty., whom Eric H. their U.S. peals subject Fisher, are the of Chamovitz, appel- and John R. Edmond. The Richard L. in lants this case were Cooper, Fleischer, Group James R. tried the II and S. Hollis proceedings Attys., brief, beginning February Asst. U.S. 1990. argued were on the evidence, government’s The the which appellee. cause for is de- analysis scribed in detail in our of the defen- dants’ sufficiency, attacks on its indicated WALD, BUCKLEY, Before and fifty- Willie Childress made at least one WILLIAMS, Judges. Circuit kilogram delivery of cocaine to the Edmond organization; that Columbus Daniels was a Opinion PER CURIAM.1 local courier for group; the that Raehelle Separate opinion dissenting part filed large quantities Edmond stored Judge Circuit cash; STEPHEN F. group’s drugs WILLIAMS. Hardy and that Robert III, IV, VII, 1. opinion I, II, Parts and by Judge Buckley; VIII.A. of the parts are and and Wald; V, VI, by Judge parts are by Judge and VIII.B. & D. VIII.C. are WilUams. challenge convic- their appellants All now that Ronald enterprise; the ran errands II III and the Group and trials tions the kilogram of cocaine a purchased Morgan trial. joint for a new their motion denial of Perry count group; that Constance the from Morgan— but Eight appellants the of proceeds; narcotics deposited and ed —all length sentences. cocaine; challenge of their also the sold and ran errands Melvin Stewart objections all of the have considered Thompson We Raynice Jeffrey and and given enormous by appellants, but raised drugs for street of large amounts packaged involved, address of issues we number conspira of jury all nine The convicted sale. We re- meriting separate discussion. those with intent possess and to cy to distribute not discuss. We ject challenges we do those kilograms of co than five more distribute objections 841(a) joint and begin appellants’ §§ and of 21 U.S.C. in violation caine ones. proceed to their individual then five defendants convicted It also and Rachelle Edmond crimes: additional Jury II. Prooedures Act vio AND Courtroom convicted of Travel Thompsons were (18 theory U.S.C. on a lations challenge jointly the district Appellants unlaw 1952(a)); was convicted § Stewart Group II trial. overall court’s conduct (21 U.S.C. of cocaine ful distribution a fair trial they were denied They claim that 841(a)(1) (b)(1)(C)); Morgan was and §§ and empanel decisions to court’s the district to distrib possession with intent convicted sequestered, keep and it anonymous jury (21 cocaine U.S.C. grams of over 500 ute courtroom, and to in a secure to hold the trial (b)(1)(B)(ii)(II)). 841(a)(1) §§ notwithstanding its jury impartial find of these pretrial publicity. exposure to None murder weapons and trial on The requires a new trial.2 decisions place June trial —took charges third —the suggested evidence government’s 1990. The Jury Sequestered Anonymous and A. accompa- Daniels appellant Columbus Rayful Edmond kingpin Group I defen- organization trial of the Following nied drug jury with a dants, the two met nightclub where moved United from anonymous purchased kept narcotics Group who had trial be dealer in the II money argued about granted three The district court sequestered. Edmond. The Edmond, organization. States v. motion, dealer still owed the dealer (D.D.C.1990), ordering argument, Daniels shot F.Supp. After the killing him. signal, addresses, names, workplaces Edmond’s times on seven second-degree all Daniels from pool The convicted be withheld Group II venire order, carrying pistol justify and of its To murder while armed media. counsel attempts by mem- a license. numerous without the court cited their associ- group and of the Edmond bers granted district court August In and to Group I trial disrupt ates to acquittal of Morgan’s motion for appellant actual with threats intimidate witnesses grounds that charge addition, prosecu- it credited violence. of cocaine purchase single corroborated wit- potential that several declaration tor’s un- and his organization the Edmond II trial testify Group refused to nesses drug multiple confession corroborated agent’s sworn an FBI noted out of fear and he was not establish that dealings could that, according reliable infor- to a declaration enter- participant the narcotics regular street mant, available on the a reward appellants’ all of denied prise. key anyone who assassinated motions, United post-trial other Id. at 1146-47. witness. (D.D.C.1990). Childress, F.Supp. 1122 prospec- revealing the As a substitute September sentenced Appellants were addresses, names, places of and jurors’ tive 1990. argu- that this offending in context statements district Appellants of the cite number also frivo- on the effort to merit and borders in an is without judge's out of context ment comments curry judge trying to favor show that the lous. reading the jury; upon obvious it is business, employment joined Second, Third, Seventh, or id. at and Elev- gave twenty- the venire members a approving enth Circuits in of their use in Edmond, three-page questionnaire designed to 1080; solicit some cases. See 52 F.Sd see demographies, gener- (2d information about their Wong, also United States v. 40 F.3d 1347 work, familiarity Cir.1994); Ross, al lines of and with the United States v. 33 F.3d case, (11th parties Cir.1994); events and id. at 1159-65. 1507 United States v. Crock- (7th sought ett, It downplay significance Cir.1992); also 979 F.2d 1204 United jury’s anonymity (3d Cir.1988). sequestration. Scarfo, States v. 850 F.2d 1015 dire, Throughout the voir the court told may the We held that a district court empanel an keeping jury anony- venire anonymous jury members if it “conclud[es] that there sequestered prac- mous and was “a strong common is a jury reason to believe the needs many tice followed in protection cases federal court” ... pre- [ and] tak[es] reasonable unusual”; way “in being no it was any prejudicial done cautions to minimize effects your protect privacy “to ... [and] so that no on the defendant and to ensure that his say integrity one can later of the rights protected.” fundamental are Ed- process by mond, any improper was tainted outside (quoting 52 F.3d at 1090 Paccione, emphasized (2d contact or conduct.” The court States v. 949 F.2d Cir.1991)). potential jurors to the precautions that these nothing indicated guilt about the defendants’ Group appellants I assumed that repeated or innocence and it explanation its a trial court’s empanel decision to and se safeguards charge jury for the in its to the quester anonymous jury an was reviewable the close of the trial. discretion, only for abuse of an assumption Appellants argue now that the use of anon- implicitly followed court. Edmond ymous juries violates the Constitution be- Edmond, See 52 F.3d at (holding prejudicial cause create trial atmo- empaneling anonymous jury of an is “left deny sphere meaningful op- defendants discretion,” subject to the district court’s portunities to conduct voir dire and exercise above) the broad constraints noted (quoting peremptory challenges intelligently. In Paccione, 1192). Appellants F.2d at trial, they of their terms own claim that the case, however, assert these deci government’s danger potential assertions of sions should be reviewable de novo. We vague implicate to the were and did not disagree. sequestration Decisions on and an any defendants; specific Group II they also onymity require a trial court to make a sensi argue dangerousness Group I appraisal tive surrounding climate defendants and their behavior at the first prediction trial potential and a as to the justify empaneling anony- trial cannot an security publicity problems arise mous, sequestered jury in the second case. during proceedings. many With so fac Finally, they say, the district court’s re- calculus, entering tors varying each sub peated anonymity instructions and state- tly, appellate court’s de novo resolution of (state- anonymity ments that was routine merely duplicate issue would the trial obviously ments that in their view were judge’s yet yield nothing efforts and almost false), pressures combined with the of se- precedential value. “Fact-intensive dis questration, subliminally communicated to putes, unlikely those whose resolution is jurors especial- that the defendants were conduct, establish rules of future are re

ly dangerous likely guilty. and most viewed under a deferential standard because reject arguments. We these appellate No establishing role courts in court —state or articulating federal —has ever held that rules of law is not at stake.” anonymous juries per the use of Corp. A., is se uncon Mars Steel v. Continental Bank N. stitutional, (7th Cir.1989) (en banc) no federal court has ever overturned a conviction rendered an anon (discussing application of Rule ll’s “reason ymous jury for that inquiry” requirement); reason alone. In our able see also id. at “[fjact-bound upholding empaneling recent decision (noting of 936 resolutions anonymous jury trial, Group I through we cannot be made uniform appellate

703 relat were married or otherwise that an defendants review, and novo or otherwise” de Group I of the defendants. a case “is to one or more in such ed pronouncement appellate guidelines arguments, for low it was Contrary appellants’ clear unlikely to establish underlying courts; clarify it for the entirely appropriate nor will this context er law.”); Hart just & Gell v. principles dangers posed, Cooter court to consider 384, 405, 110 themselves, S.Ct. Corp., 496 U.S. man but Group II defendants by the (1990) (citing L.Ed.2d 359 110 conspiracy as well. by of the other members Further approval). quoting Mars with and (citing posed Wong, F.3d at 1377 risks 40 Cf. factors, more, such as of the relevant some gang fellow members by non-defendant by presented the de menace degree of jury); v. anonymous United States justify interest, intensity of media and the fendants Cir.1991) (2d 236, 240, Vario, F.2d captured in the only incompletely may be tamper grand-jury (attributing to defendant record, appeal are so that courts written co-conspirator noting that “de ing by second-guess ill-equipped particularly history or of obstruc likelihood monstrable Scarfo, F.2d at judgments. these Cf. part defendant or justice on the of the tion of em of decision to (noting that review justifies ano acting on his others behalf” jury particularly anonymous “must be panel added). nymity) (emphasis judge, familiar as he is to the trial deferential ambiance”). fact, experience with district court’s Finally, the fac the local with provided it with Group arguably court’s I trial counseling to the trial deference tors anony- anonymous jury apply justifying an empanel an evidence decision to more relevant sequestration. possessed See equally to its decision in this case than it mous Persico, trial, Group v. I United States around. Prior to the first time Cir.1987) (2d (“[sjequestration is a matter just the defen- primarily knew the court of the trial to the sound discretion committed enter- allegedly belonged to a criminal dants court, not constitute its decision will on the streets prise that had used violence showing of actual absent a reversible error informants had heard government and that therefrom”); arising United States prejudice say would father he the lead defendant’s (5th Cir.1986) Greer, 557-58 witnesses; the court’s conclu- “take care of’ (similar). colleagues or their that the defendants sion proceedings tamper upcoming with the might not abuse its district court did proper leap, albeit required an inferential Group jury. II empaneling discretion proved inference first trial one. But that po reasonably found the serious The court that associates court now knew correct: The during juror and after intimidation tential actually organization were Edmond pre justify extreme that would the trial with the criminal willing and able to interfere sequestration. anonymity and cautions of members, only neces- and the group trials than their perhaps peripheral more Though they might continue sary inference II counterparts, Group defen Group I Group I During the transgressions. such partici alleged still themselves dants were trial, mother was of one witness’s the house extremely violent pants organized in an testimony, a in the middle of her firebombed group— conspiracy, of this criminal and one after let- was found shot potential witness commit accused of appellant Daniels —stood accidentally sent to prosecutors was ter from in furtherance ting a brutal murder defendant, with a a house she shared organization retained conspiracy’s ends. The trial, during the bomb threats court received jurors, and harm capacity to threaten personnel judge and courtroom and both the jail. highest were though its leaders even communicating members audience observed Furthermore, reasonably the district signals and hand the defendants or their Group I defendants thought that the jurors. menacingly at witnesses glaring interfere with be inclined to associates would Furthermore, submitted the declarations trial, Group given that most of the the second that similar abus- suggested family were close friends II defendants Such trial. might occur at the second es in the first people convicted members of interfere with witnesses willingness to round; fact, Group II five of the nine bench). box, proceedings danger trial indicates a real and Two videocameras were might top defendants threaten or otherwise tam- located the rear corners of the court- Edmond, jurors. per with See 52 F.3d at room. The record indicates that there were Finally, judge security personnel 1092. the district knew more courthouse than experience with the first trial throughout proceedings, the usual on hand the Group proceedings likely although II would many attract we have no record as to how increasing they progress- trial, media attention actually present officers were at where ed, heightening danger stationed, the they information the courtroom were wheth- jurors identifying public uniformed, they could become er were and the like. It is potentially exposing and any them to intimidation also uncertain whether there was addi- consideration, too, (metal security detectors, harassment. This equipment was tional proper. example) See id. in or outside the courtroom. Appellants jointly petitioned to move their alsoWe find that the district court trial out of the secure courtroom and to appropriate precautions took any to minimize security personnel reduce the number of prejudice might to the defendants have present, claiming that “im- these measures way jury resulted from empan permissibly impression ereate[d] the eled. searching The conducted a voir assemblage group desperadoes.” of a of wild gave jurors dire question and an extensive The requests, citing district court denied the naire, scope appellants of which do not security manageability and pre- concerns challenge. judge’s repeated The statements by large sented a trial with such number of downplaying significance anonymity involving defendants and organization “an sequestration stressing and their irrele purchased place its community guilt vance to the defendants’ or innocence through spilling During of blood.” Edmond, appropriate. were likewise See selection, however, Group jury II the court (approving F.3d at 1093 identical instruc did instruct ignore the venire members to tions); Ross, 33 F.3d at (ap 1521-22 n. 27 security precautions: judge the extra The proving of downplay similar combination of many noted that different civil and criminal ing safeguards highlighting presumption courtroom, trials were held in that same innocence); Crockett, 979 F.2d at 1216-17 partitioned design courtroom was com- (same); Tutino, mon in country, courthouses across the (2d Cir.1989) (same). Further, security personnel that uniformed al- were the absence of some concrete reason to be ways present at criminal trials “in direct jurors lieve that would judge’s discredit the proportion to the number of defendants on suggestions procedures that these com were repeatedly trial.” The court made clear that monplace, indulge we will not appellants’ as none of these anything measures had to do sumption jurors suffered some sort guilt defendants, with the or innocence of the cognitive they dissonance between what it confirmed several times that the veni- knew of they the conduct of trials and what re members understood the instructions. saw, much less that would be led to infer that guilty. defendants were Appellants now claim that these extra short, we find error in neither the district security especially in combination measures — empanel court’s initial decision to and se jury’s sequestration anonymi with the quester anonymous jury Group II ty-denied signaling them fair trial trial doing nor its manner of so. jurors danger that the defendants were likely guilty. They ous and most correctly Heightened B. Security Courtroom point out that the presumption constitutional Group place II trial took innocence be undermined “secure courtroom” of the physical guilt; United States indicia of criminal defendants Washington. Courthouse That right courtroom do have a court-imposed to be free of twelve-foot-high plexiglass had a partition physical appearances unfairly sug that are separating spectator See, gestive section from the guilt. e.g., of their Estelle v. (i.e., tables, Williams, well of the court counsel 425 U.S. 96 S.Ct.

705 (1976) members seem more than tions to the venire (holding unconstitutional 126 L.Ed.2d pris any prejudice appear adequate to alleviate incidental that defendant requirement trial). hand, other On the have resulted. garb at every practice tend ... “does not mean ' everyone single out the accused ing to Publicity Pretrial C. down,” must be struck in the courtroom else trials, Prior to the severance of the 106 Flynn, 475 U.S. Holbrook v. jointly change appellants moved for a of ven (1986), 1340, 1345, espe L.Ed.2d 525 89 S.Ct. ue, claiming that the attention focused media legiti proceedings present cially when the proceedings make a fair trial in on the would security presid to which the concerns mate jurisdiction impossible. The motion stat respond. Like the decision ing judge must publici that the ease had attracted lots of ed anonymous jury, the trial empanel an drugs ty large quantities of the of because security proce courtroom court’s choice of brought enterprise alleged to have was reading of the imme requires a subtle dures District, into the the number of homicides poten atmosphere prediction diate defendants, potentially connected to the nearly impossible judgments tial risks — associated with fact that several defendants second-guess after the appellate courts University Georgetown reason, members bas balancing of the For that fact. team, and the District’s recent anoint of ketball presumption for the competing concerns capital murder of the nation. integrity of the court ment as the and for the innocence Thirty-eight newspapers articles from local proceedings is best left to room and its See, motion, many dealing judge. e.g., to the of the trial were attached sound discretion 1024; proceedings, at States v. the defendants’ but others Scarfo, 850 F.2d with (5th Cir.1988). Nicholson, violence, simply discussing drug 846 F.2d narcotics ar rests, generally. district gangs security concerns noted light change court denied the motion for large number of defendants above and the venue; however, Group II it included say the trial we cannot proceedings, questions asking juror questionnaire several Appellants do judge his discretion. abused exposed members had been whether venire any prejudice actual point to evidence of coverage media of this or related to the resulting security measures taken from the eases, individually questioned prospective it presume preju trial. Nor will we their question jurors had indicated on their who judge agree another district dice: We they exposed, and it had been so naires in the secure courtroom who has held trials repeatedly pool whether asked the venire partition and the video- plexiglass any opinions formed put could aside opin (meticulously in his cameras described publicity. from this ion) intrusive, minimally not come do are jury and the defendants or box between conviction, moved appellants After their witnesses, stigmatizing and are far less than upon the acquittal or a new trial based for an security as the many other measures — such change venue. The district denial of the dangerous unruly, flight-prone, or shackling of motion, holding that court denied in other courtrooms de fendants — used case, extensive, though coverage media See United upheld other circuits. factual, that the dispassionate had been Whitehorn, F.Supp. 835-41 States v. extensively potential court had screened (D.D.C.), grounds sub rev’d on unrelated bias, appellants’ counsel had leftover and that Rosenberg, nom. United States they could challenges with which peremptory (D.C.Cir.1989). Appellants have like thought poten- any juror they have stricken that the number wise failed to demonstrate Childress, F.Supp. tially prejudiced. See present during pro security officers at 1138-40. ceedings disproportionate to the number was specifically chal- Appellants now do not being tried or that the officers of defendants change for a of their motion lenge the denial way in a in the courtroom were stationed venue, they challenge scope jury. nor do might particularly influence voir dire. questionnaire or the district court’s lengthy instruc- Finally, the district court’s

Instead, they argue that the media attention while on work release and the crime had surrounding inflammatory was so the case during presidential campaign occurred could not have rendered a fair highlighting by furloughed similar crimes in- Although they point any verdict. cannot Mu’Min, 428-30, mates. 500 U.S. at single juror actually that a indications S.Ct. at 1906-08. The Mu’Min Court prejudiced by pretrial publicity, appel- importance community stressed the urge prejudice lants us to infer from the fact context, part which as here was of the “met- twenty-seven that members the venire ropolitan area, Washington statistical which pool they exposed indicated that had been to population has of over 3 million and in coverage. the media which, unfortunately, hundreds of murders 429, year.” are committed each Id. at 111 reject this claim. We The mere exis S.Ct. at 1907. pretrial publicity tence of intense is not unfair, enough to make a trial nor is the fact Simply put, high, ap- the standard is and jurors potential exposed have been pellants Appellants do not merely meet it. publicity. Although the Constitution is newspaper they rehash the articles submit- require understood to that defendants be original change ted with their motion for a judged by panel jurors,” “a of indifferent trial; Group venue before the I the latest of jury totally those members “need not be these stories ran seven months before their ignorant involved,” of the facts and issues fact, own trial started. In counsel for several Dowd, 717, 722, Irvin v. 366 U.S. 81 S.Ct. appellants argued to the district court that (1961). 1639, 1642, Rather, 6 L.Ed.2d 751 “it just coverage media Group before the II trial juror lay is sufficient if the can aside his jury had thin sequestration been so impression opinion or and render a verdict anonymity unnecessary. Twenty-seven were presented based on the evidence in court.” pool may members of the venire have been 723, Id. at 81 at S.Ct. 1643. We review the exposed was, publicity to whatever there but finding juror trial impartiality only court’s only people two of these made it onto the error,” for Virginia, “manifest Mu’Min v. jury only and then questioned after the court 415, 428-29, 1899, 1906-09, 500 111 U.S. S.Ct. individually appellants’ them counsel did (1991); Yount, 114 L.Ed.2d 493 Patton v. 467 object. short, In we find no “manifest 1025, 1031, 2885, 2888, U.S. 104 S.Ct. 81 error” in the district finding court’s (1984); L.Ed.2d 847 showing and absent a Childress, jurors impartial, were F.Supp. 746 jurors actually preju individual were at 1139-40. As the Edmond court found in standard, diced and unable to meet this we reviewing trial, Group I “there is no prejudice only will infer in those “rare” concluding reason for population eases, Stuart, Nebraska Press Ass’n v. 427 Washington, against D.C. was so aroused 539, 554, 2791, 2800, U.S. 96 S.Ct. 49 L.Ed.2d appellants unlikely objec- and so to be able (1976), community 683 in which the has been tively judge guilt their or innocence on the particularly saturated with damning publici presented basis of the evidence at trial” that ty. Supreme presumed jury prej The Court right their to a fair trial was violated. Ed- udice, example, where a defendant’s mond, (internal quotes 52 F.3d at 1099 omit- videotaped murder confession was broadcast ted). nights on three consecutive to audiences of 24,000, 53,000, 29,000 people rural 150,000

parish of residents. Rideau v. Loui III. CONSPIRACYIntent InstRuction siana, 373 U.S. 83 S.Ct. 10 (1963). Appellants challenge L.Ed.2d the trial court’s presumption But such a refusal to instruct egregious specific is reserved for in most cases. Court, example, conspiracy. tent is an element of presume would not con We prejudice clude even where a that the district court defendant’s crime erred instruct provoked ing had that a pub possess “substantial” unfavorable and distrib licity (1988) drugs § than would have ute under 21 attended most U.S.C. is a —more capital crime, general murders because the defendant was intent but this error was charged committing inmate murder harmless correctly because its instructions (Mar. 30, Jury Instructions intent Modification jurors of the elements of apprised 1990) 2, reprinted in II J.A. at 158. The in order to convict had find rejected requests, these adher- district court conspiracy. appellants conspiracy under position its jury that instructed The district court general § intent crime. 846 is a to a two elements there are Bailey, U.S. first, agreement § that an charge under 846: (1980), L.Ed.2d 575 S.Ct. persons to dis- two or more between existed be- Supreme discussed the distinction Court to distribute possess with intent tribute Noting general specific intent. tween or cocaine of cocaine requisite amount ... has been distinction that the “venerable second, “know- base, that the defendant confusion,” the good deal of source of joined conspiracy.” voluntarily ingly and that, sense, general a “[i]n Court observed (“J.A.”), Tr. at Appendix XIV Joint 3/30/90 loosely corresponds with the com- ‘purpose’ con- instructed the The court also intent, while concept specific of mon-law general “require[d] a charged spiracy loosely ‘knowledge’corresponds with the con- so, it shown this is is intent.... Where 403, 405, general intent.” 444 U.S. at cept of knowingly committed an person that a has 631, at 632. As to the difference 100 S.Ct. crime, intent makes a act which the law the knowledge purpose, Court between J.A., doing the act.” XIV inferred from be explained that on the In elaboration Tr. at 65. 3/30/90 particular a result is person who causes elements, explained that the court requisite consciously purposefully if he said to act (1) required prove to government the result, the likelihood whatever conspiracy “came to desires that the members conduct, happening from his accomplish un- of that result understanding an to a mutual knowingly if he is is said to act unlaw- while he purpose by purpose or lawful lawful (2) practically is certain 62, aware that result means,” J.A., Tr. at XIV ful 3/30/90 conduct, defendant, from his whatever to follow acts of a fact the that “the may be as to that result. desire merely happen further knowledge, to without conspiracy, objectives the purposes or of the (internal 404, at 631-32 444 100 S.Ct. U.S. at a member of the defendant does not make omitted). The further ex- quotations Court (3) 63, “if a defen- conspiracy,” id. at knowing proof of action is plained while dant, understanding of the unlawful with con- adequate support to criminal generally knowingly conspiracy, en- of character viction, “spe- of merit classes crimes certain furthering courages, or assists advises culpability.” “heightened cial attention” conspiracy, defendant purpose of 405, Among these at 632. at 100 S.Ct. Id. voluntary knowing and thereby becomes crimes, conspiracy: “An- the Court identified conspiracy.” and member of the participant inchoate example is the of law other such Id. conspiracy, attempt such as offenses separates heightened mental state where a objected to these instructions Appellants innocuous criminality itself from otherwise evidence, arguing that close of the at the Id. behavior.” Rac- specific intent conspiracy is a crime. mind, understanding in it is clear instance, Edmond, un- With this argued that helle crime. “specific is a intent” only that conspiracy law a defendant “not der conspiracy is of law definition ... to The common knowledge, ha[s] but to have ha[s] “ ... persons of two or more ‘a combination the con- intentionally [of a member become pur unlawful some criminal or accomplish a member spiracy] and ... become accomplish purpose, some objects pose, or to furthering intent specific unlawful, by or criminal or J.A., at 73. itself criminal Tr. conspiracy.” XIII 3/28/90 ” Scott, 2 LaFave & Sub means.' unlawful Thompson proposed an Raynice instruction (1986) § at 86 Law 6.5 stantive Criminal jury must find that defendants (4 Hunt, v. 45 Mass. (quoting in- conspiracy “with the Commonwealth participated Met.) (1842)). Thus, purposeful intent 111 object purposes of tent to see that the “result,” to achieve desire” Proposed or “conscious achieved.” conspiracy were Bailey, persons any at 631—is that “one or of such do act U.S. S.Ct. more conspiracy. Accordingly, object conspiracy,” the essence of to effect the while explained past, proof requirement. § con- we have 846 contains no such statutory spiracy requires proof specific requirement intent absence of a of an act, controls, conspiracy’s objective: single “A further the overt the common law and the — proven required if common is the evidence estab- law no overt act. See at -, conspirator specific lishes that each had the at 384. U.S. S.Ct. objec- intent to further the common unlawful respect requirement, to the intent With Tarantino, tive.” v. 846 F.2d United States contrast, there is no textual basis for a dis (D.C.Cir.1988); see also United 846; § § tinction between 371 and are Clarke, 24 F.3d 264-65 equally pro silent on issue. Section 846 (D.C.Cir.1994) (to convict defendants of con- “[a]ny person attempts vides that who or spiracy possess drugs with intent to dis- any conspires to commit offense defined tribute, “the had to establish ... subchapter [Control and Enforcement of purposefully agreed that the defendants to Drug subject shall be Abuse] same partnership”) (emphasis original); act in offense, penalties prescribed as those for the Haldeman, United States v. object the commission of which was the (D.C.Cir.1976) (“[T]he specific intent re- attempt conspiracy.” pro Section 371 quired conspiracy for the crime of is ... persons conspire vides: “If or two more ...

intent or further the unlawful advance any against to commit offense the United object conspiracy”). of the States, persons ... one or of such and more Indeed, argument government any at oral object do act to effect conspir of the charged conspiracy acy,” conceded that guilty conspiracy. is a each shall be As specific briefly intent crime. explicit require We address neither establishes an intent ment, ourselves to the district court’s governed by general reasons for each is law of concluding Recognizing conspiracy, otherwise. that con- and the case law in circuit are, spiracies general, specific in conspiracy specif intent and others is clear that is a crimes, See, Tarantino, the district court ic e.g., supra; nevertheless con- intent crime. (7th Rivera, 431, § conspiracy cluded that a 846 is different United States v. 6 F.3d 443 (1) Cir.1993) (“[B]ecause Congress legislated because drug a distinct conspiracy is a 846, crime, conspiracy specific § definition of government see United intent must Childress, 8, offense.”) v. F.Supp. prove 746 at 1128 n. intent as an element of the (2) (internal omitted); and several other circuits have construed citation United States v. (1st Cir.1988) § conspiracy 800, the elements of a 846 require Rengifo, 858 F.2d 808 “ (“While government only prove ‘the must conspirators association with is evi it, that, the defendant participation knew of with dence of conspiracy, knowledge, voluntarily the defendant something beyond became is more needed to show a ” part a conspiracy,’ (quot- deliberate, id. at 1127 knowing, reasonable doubt v. Terzado-Madruga, specific join United States 897 and intent of the defendant to (11th Cir.1990)). 1099, (internal omitted). 1121 conspiracy.”) Neither quotation ground persuasive. is In support further of its conclusion that a

Although conspiracy § § a conspiracy 846 is general different 846 is distinct from the general conspiracy statute, from a federal certain specific with no intent respects, they requirement, other do not pointed differ the court to several “ required. intent Supreme opinions As the Court holding held circuit court ‘[i]n or- — Shabani, U.S. -, in United States v. der to convict a defendant of a Section 846 -, 382, 383, conspiracy, 115 S.Ct. prove 130 L.Ed.2d 225 must (1994), § conspiracy, it, a conspira- that, 846 unlike a that the defendant knew of cy general knowledge, under the federal voluntarily stat- the defendant became ” ute, (1988), § 18 requires part conspiracy.’ U.S.C. 871 no F.Supp. overt 746 at act. But this (quoting distinction is the text of the Terzado-Madruga, 1127 897 F.2d at cases). respective § requires proof statutes: 371 collecting 1121 & These cases do not under these instructions without find- convict court’s conclusion district support specific “the intent to requirement ing what amounts to specific intent is no there Although objective.” “loose[]” is a there common unlawful conspiracy. further “ ‘knowledge’ Tarantino, light between “eorrespond[ence]” 846 F.2d at 1392. intent,” general concept of instructions, ... [and] the district court’s incor- these 632, 405, at 100 S.Ct. Bailey, 444 U.S. of the crime as one of rect identification requiring of a crime as characterization was harmless. “general intent” preclude its own force knowledge does not of requirement. To the con specific intent Single IV. Multiple v. CONSPIRACIES Circuit, one of the dis

trary, the Eleventh at trial Appellants argue that the evidence authorities, requires principal trict court’s it estab- the indictment because varied from prove intent in order to proof specific conspiracies rather than a multiple lished voluntary” participation: “knowing “[t]o prejudiced by single and that were one knowing and volun defendant’s] prove [the argument, In a related several this variance. the Government must tary participation, argue that there was insuf- appellants [he] doubt that prove beyond a reasonable deliberate, knowing, specific intent to convict them of the ficient evidence had a join conspiracy.” United States the individual suf- charged conspiracy. Like (11th Cir.) (internal Harris, 445, arguments, 20 F.3d ex- fieieney-of-the-evidence “[t]he omitted) added), (emphasis cert. quotation single conspiracy multiple of a istence — 434, denied, -, U.S. S.Ct. primarily question of fact conspiracies is — denied, U.S. -, cert. L.Ed.2d Tarantino, at 1391. jury.” for the — denied, L.Ed.2d cert. S.Ct. of both claims is therefore limited Our review -, 130 L.Ed.2d 521 115 S.Ct. U.S. there is sufficient evidence— to whether (1994). Thus, “knowing” although the light most favorable to when viewed always used with “purposeful” terms are jury finding of support a the —to is, consistency, far as we can perfect there so agreed single conspiracy a to the individu- § see, dispute that a 846 fundamental no togeth- the claims appellants. al We address specific intent crime. conspiracy is a er. court thus erred Though the district Conspiracy Trials A. Variance conspira § instructing jury that a the crime, cy “general this error was is a intent” can establish a variance A defendant the district court’s instruc harmless because by showing that the evidence established jury adequate guidance on the gave tions the single multiple conspiracies rather than required. the district court’s intent Under Even charged in the indictment. conspiracy instructions, jury to find that each had variance, a if establishes such the defendant conspiratorial agree defendant entered only if the defen grounds is for reversal it furthering purpose of the ends ment with the substantially that he was also shows dant (1) “came to a conspiracy he —-that instance, by, for prejudiced by the variance — understanding accomplish an un mutual from other spillover effect of evidence (2) an understand purpose” lawful and “with party. not a conspiracies to which he was conspira ing character of the of the unlawful Tarantino, F.2d at 1391. See encourage[d], or as cy, knowingly advise[d] purpose of the con furthering sisted] Conspiracies Single Multiple B. characterizing In the elements spiracy.” so drug common in distribution As is crime, clearly in the district of theory in cases, this case is government’s of jury purposeful that a state structed the single “chain” establishes a that the evidence jury could not find required mind was —the long recognized conspiracy. have Courts voluntary” “knowing and someone to be drug distri participants in a continuous finding without participant single parties to a enterprise can be bution mutual understand “came to a that he or she know one if do not all conspiracy even purpose.” an unlawful We accomplish another, that his own long as each knows so jury could not thus satisfied that are drugs suppliers ... it in the distribution of and the from several and resold role participation from his de- benefits he derives both wholesale distributors and street level As the pend “likely on the activities others. ... ... manifested] dealers” several concluding explained in Second Circuit conspiracies single overarching rather than a middlemen, groups smugglers, separate of one”), rehearing en banc ordered on unrelat single conspiracy retailers could form a (D.C. grounds, ed 1995 WL 79398 Feb. import drugs, smugglers “the knew that 1995) (en banc); Townsend, United States v. retailers, must sell to and the the middlemen (7th Cir.1991) 1385, 1391, 1395-1402 924 F.2d buy retailers knew that the middlemen must (finding separate conspiracies three between importers of one sort or another. Thus suppliers pur a common three different conspirators at one end of the chain knew chaser; liability “the of the dis members not, the unlawful business would predicated upon chain is the notion tribution not, stop buyers.... their That could participants at different levels in the true, being jury might have found that all chain know that the success of those at each venture, upon the accused were embarked hinges upon level the success the others parts participant.” in all of which each was a cooperate mutual ben and therefore for their Bruno, (2d United States v. efit”). Cir.1939). Thus, proof while however, up In this case we do not run requires proof agreement, may below, against such limits. As detailed we agreement from the infer defendant’s against appellant find that the evidence each knowing participation in a distribution net- him was sufficient both to tie to the core of organized along princi- work division of labor drug operations sup- distribution and to ples necessarily which his own role de- —in of, port jury’s inference that he knew cooperation parties pends on the of other on, depended agreed to the related activ- “The network: existence of such a verti- co-conspirators. carried out ities cally integrated, loose-knit combination conspirator raise the inference each has Overview the Evidence. (some agreed specific trial, with the others whose government presented course of the unknown) identity may be to further com- single drug of a evidence coordinated distri objective, e.g., mon unlawful the distribution network, by Rayful bution orchestrated Ed Tarantino, of narcotics.” geared III mond toward retail trade on (internal omitted). quotation Strip,” “the a residential area the 600 Place, blocks of Morton Place and Orleans course, metaphor, The chain of is not with N.E., sepa with additional distribution ability single out limits in its to establish a rate Bates Street area of Northwest Wash if, instance, conspiracy. Even for ex there ington. police Between 1986 and ob core, single conspiracy, chain ists “certain steady trafficking served in cocaine and players may performed wholly have activities Strip, crack on the several overseen co- conspiracy.” unrelated to the aims of the conspirators Group who were tried in the I Tarantino, addition, 846 F.2d at 1393. In trial, Sutton, including Jerry Emanuel Mill some courts have been reluctant to conclude Monford, ington, Jones, John James Antonio chain construct can auto Cooper, Keith and Patrick McDonald. In matically participants drug bind all in a dis 1988, police obtained search warrants enterprise single agreement tribution into a Strip several stash houses on the and carried participants certain when are involved searches, separate finding out five firearms enterprise during radically pe different time significant quantities and of cocaine riods, Borelli, see United States v. 336 F.2d and/or (2d money Shortly on each occasion. after one Cir.1964), 383-85 or when there are searches, police of these found James interdependence no indications of between Jones, Jerry Millington, Antonio and Patrick participants, the various see United States v. (D.C.Cir. Anderson, 331, 337, directing clean-up in a McDonald others 1994) (evidence occasion, govern “an the house. On another extensive cocaine dis agent purchased organized managed grams tribution network and ment of cocaine by” single kingpin “purchased appellant who cocaine from Melvin Stewart in the base- and, Strip, apartment ment of one of the houses on the Jerry she shared with Millington. upon drugs execution of a search warrant of the Once the packaged, they were were evening, police picked up by house that found Stewart in Edmond coop- couriers such as along co-conspirators erating Kathy Sellers, the house with other witness assisted on at large quantities drugs money. least one occasion and and Rachelle Edmond. The couriers drugs daily would then deliver to the In supply Strip order to and the Bates early stash houses morning, in the unless operation, conspirators arranged large Street told not to. drug purchases Angeles, using from Los These same couriers also appellant couriers such as retrieved the Willie Childress to proceeds sales ferry Strip brought and money drugs and back and forth money locations, back to various includ- country. across the Edmond “lieutenants” ing apartment Rachelle Edmond’s and later such as Dave McCraw and James Minor took her house. On one occasion Sellers delivery drugs of these from the couriers and appellant Perry observed Constance in the Strip distributed them to safe houses on the basement of Rachelle Edmond’s house count- apartments and Bates Street and to the ing large sum money money with a conspirators storage, packaging, various counting government machine. The pre- also transport. and further On at least four occa- appellant sented evidence that Perry brought sions in the summer of McCraw and envelopes paper bags old, sent full of Minor retrieved cocaine from cour- California dirty bills in deposit small denominations for Street, iers and drove it to Bates where into different credit union accounts once or by appellant were Hardy assisted in deliver- Once, twice a Rayful week. she and Edmond drugs Eighth to a house at Street $19,000 brought III in old in exchange bills and Rhode Island Avenue. for a treasurer’s check. The large conspirators A cohort of assisted in showed that Rachelle Edmond maintained a storing packaging drugs for retail bank significant account with deposits cash purposes, sale. For our the most relevant during the participation time her appellant evidence is that spent Stewart sev- conspiracy. packaging sale, eral hours cocaine for retail Raynice Jeffrey Thompson sum, regular- In government presented ly packaged 1-2 kilograms of crack overwhelming three evidence of a classic chain con months, times a period spiracy week over a of three operating between 1986 and 1989 to regularly possess that Rachelle Edmond stored and distribute narcotics in the Dis drugs made available for retrieval at the trict of Columbia.3 multiple addition, In her individual articulation of the worked under Edmond's direction. conspiracies argument, Rachelle Edmond as- significant overlap heard evidence of serts, elaboration, without "[t]he evidence Strip between the and the Bates Street enter- separate conspiracies involving would admit of McCraw, prise: James Minor and Dave Edmond, III, another, Rayful Tony Lewis in conspiracy principally responsi- members of the and, Butler brothers and Bennett in California of taking delivery ble for of cocaine from California course, Zanville, Alta Rae who was involved in couriers, deeply operations were involved in at several, including Ap- others unknown at trial.” Strip both the and Bates Street. Minor and pellants' Brief at 149. quantities McCraw delivered multi-kilo of co- packaged caine to Bates Street and also crack find, however, We that there is sufficient evi- Strip; government and delivered it to the the dependence opera- dence of mutual between the presented evidence of one incident when Strip support tions at the and at Bates Street to McCraw and Minor obtained a block of cocaine juiy’s finding single conspiracy. the of a The powder bagged from Bates Street and it for retail government presented wiretap conversations in Further, Strip. sale on the Minor and McCraw Rayful which Edmond III —the overall leader— paid by Millington, were for their work identified Tony supervised operations and Lewis—who at by government witnesses as an Edmond "lieuten- arrangements Bates Street —discussed their evidence, Strip. ant” on the From all this the drugs retrieve from California couriers and the jury certainly could inventory have concluded that the drugs, current and location of their operation Strip part and Edmond Bates Street and the directed Lewis to whom he were of should provide drugs single conspiracy by Rayful for retail the distribution. These con- led Edmond III. permit juiy suggests versations a to find concerted action Rachelle Edmond further that there multiple between Edmond conspiracies and Lewis and that Lewis were because certain con- drugs to packaged handed the and further at time Participants. We The Individual govern- transport. The Kathy for Sellers evidence was sufficient there conclude Thomp- evidence of the also introduced ment appellants to conclude of the against each during unexplained affluence purposes sons’ otherwise agreed to further or he that she They of thousands below, invested tens period: this single conspiracy. As detailed of early and late 1987 property of dollars evidence appellant was each there drugs the quantity of From the 1988. he that she or jury could infer which handled, the fact that personally Thompsons conspiracy, that the scope of the of the knew drugs preparing those knowingly they were depended on benefits individual’s own they sale, and evidence for street co-conspirators, and activities of related of direction doing personal so at the were agreed to further that, knowing, or he so she III, have in- could Rayful Edmond conspiracy.4 purposes of the Thompsons agree by the an intent ferred Thompson Raynice Jeffrey conspiracy to further a broad-scale to and argue that there Thompsons The narcotics. distribute agreed to they evidence insufficient was they knew conspiracy and that enter the Edmond Rachelle entire depended on the “that their benefits argues as well Rachelle Edmond Appellants’ at Brief venture’s success.” evidence that she that there insufficient they not im Thompsons note were participant willingly knowingly and became conspiracy’s activi of the plicated in several Edmond-Tony conspira Rayful Lewis they Strip, did never at the were ties — government never suggests that the cy. She bank, they deposits cash not make any as more implicating her succeeded in California. purchases drug never made rather conspirators of than than associate do, Thompsons did how Details what charged not participant. She was jury to ever, provided ample basis money laundering and maintains evi the con they agreed to enter conclude that drug that she laundered suggesting dence knowledge scope. Govern of its spiracy with conspiracy con money support not her does that, on testified witness Rae Zanville ment viction. at the direction or about December however, assertion, Contrary III, to Edmond’s Raynice Thompson Rayful Edmond presented of her evidence powder cocaine. helped bag her crack range conspira- in a wide January participation And, a week from three times activities, including drug cy’s core distribu- Thompsons, through March 1988 both co-con- III, lived with Rachelle Edmond Rayful tion. Edmond again at the direction Millington, was tried and spirator Jerry who kilograms two of crack bagged one to cut and side, but he is not automati- own on the California their spirators, Zanville and such as deals."). independently cally those side separately accountable for all of suppliers, worked conspiracy. scope Even if beyond Hardy appellants, and Con- Robert 4. Two of true, conspirators engage in that certain the fact challenge sufficiency of Perry, do not stance independent drug does on its transactions supporting convic- their evidence single conspiracy. negate of a own the existence against Hardy, we which evidence tions. The Tarantino, See United States addressing his the section in detail in discuss ("[E]ven (D.C.Cir.1988) determine if we claims, that he delivered individual established exists, may we still con- a chain large drugs packaged a large quantities outside the chain that certain actions were clude above, money. the evidence As sum of discussed Though conspiracy."). separate and formed genuine money Perry against extensive laun- centered on to not be side would attributable deals p. dering. supra From the fact that See 711. case, charged conspiracy in this neither the quanti- Hardy Perry extensive each and handled jury con- prevent the from would their existence money drugs over sustained ties of core, and/or single conspiracy also in cluding that a time, jury period conclude each of could simultaneously. States v. operation Saro, See United scope conspiracy, the necessi- (“[S]ome- of the of the (D.C.Cir.1994) knew by co-conspirators, ty of the activities undertaken drug conspiracy may belongs well one who to co-venturers, dependence on those activi- and or her own his in addi- that his be able to foresee ties, parties finding be to the overall both to agreement thus acting furtherance of tion to in them, agreement. conducting drug transactions with will be Group ipant with the I Al- conspiracy convicted defendants. agreed who to the Millington’s though conspiracy purposes. role in the furtherance of its Edmond’s, greater have been than there Melvin Stewart was extensive evidence that Edmond herself challenges Melvin Stewart also scope conspiracy knew of the of the sufficiency tying of the evidence him to the ways acted in several different further it. to conspiracy. single Stewart notes that a sale witness Sellers testified that Government drugs of is insufficient to support a conviction request spoke Millington her Edmond conspiracy argues that the core evi entry facilitate Sellers’ into the against just dence him consisted of such a courier, drug that Edmond was with Mill- single government transaction. The agrees ington apartment when came to Sellers their that evidence that grams Stewart sold 13 that, drugs to retrieve on a few occa- police cocaine to an undercover officer sions, gave Edmond herself cocaine to Sellers Street, N.E., basement of 407 M is “[e]entral delivery down the line. Sellers further proof to the of Stewart’s involvement accepted drug pro- testified that Edmond conspiracy.” Government’s Brief at 100. As $1,000 packages ceeds from Sellers in government notes, however, further this $10,000 Millington when was not at home. only piece was far from the of evidence Government witness Zanville testified connecting Stewart to conspiracy. Police same vein. She said that on one more they testified that when executed a search together occasions Edmond and Sellers re- warrant at 407 M evening Street on the same packaged trieved crack for street sale from purchased had drugs from apartment, Zanville’s and that Edmond was Stewart, along Stewart was at the house with Millington when Zanville delivered conspirators, cocaine, other large amount of packaged apartment. crack to their In addi- and thousands of dollars. Six hundred tion, government presented evidence of eighty himself, dollars was found on Stewart an FBI-recorded conversation between Rac- though purportedly even he was unemployed. helle Edmond and Zanville in which Edmond addition, other witnesses testified to Stew pending discussed police investigation art’s involvement sepa and efforts herself and others to avoid rate occasions. Government witness Denise During surveillance and detection. this con- day Johnson told how one in the summer of versation Edmond revealed detañed knowl- conspirators, 1987 she and several other in edge scope conspiracy stating, of the — Stewart, cluding packaged cocaine for street among things, co-conspirators pos- other government witness, sale. Another James guns, 36-pound sessed dealt in quantities of Mathis, who an served as undercover courier cocaine, and had California connections. conspiracy, for testified that he received payment approximately from Stewart a Finally, introduced evi- $5,000 drug sMpment brought for a he dence of unexplained Edmond’s wealth dur- Angeles WasMngton, Los From D.C. period. Notwithstanding her limited incidents, reasonably these could unemploy- income as a hairdresser and the knowledge infer conspiracy’s Stewart’s co-conspirator Millington, ment of her live-in scope agreement and his to further its aims. she maintained accounts with thousands of 1987-88, deposits dollars in cash pur- Willie Childress $6,000 chased a 1987 Volvo with a down payment, put $46,000 pay- a total of argues down Chüdress also that there was houses, $11,000 paid ments on two support insufficient evidence to his conviction telephone during mobüe peri- conspiracy. Mil the same He maintains that the evi od.5 This evidence in toto identifying is more than dence him as the California couri adequate support jury’s finding brought kilograms er who of cocaine to knowing voluntary partic- Edmond was a Crys- Dave MeCraw and James Minor at the claim, (“The Contrary proof laundering to Rachelle Edmond's 846 F.2d at 1396 of funds was money laundering support can a conviction of part plan to distribute cocaine Tarantino, drugs. to distribute See 714 tying Childress of evidence network stantial was too August Days Inn City

tal August 1988 delivery of drug pre- observed to the if all evidence thin, even and that jury delivery, the prior to recollected believed, not be tied could and he were sented was, indeed, Although govern- that Childress could conclude conspiracy. overall is admit- made the two deliveries. against “Captain” Childress who ment’s evidence the other than for circumstantial tedly more if the argues that even further Childress support to nevertheless suffices appellants, it “Captain” was that he jury could find conviction. Childress’s delivery Mi drug received who made alone, centered against Childress not, The evidence nor, from this transaction it could cocaine delivery kilograms of of 50 a conspiracy. around guilty of him find Cf. 1988, Minor accepted James (7th August Kimmons, v. States delivery the McCraw, and a similar Dave Cir.1990) (“The buyer relationship eye- no there was about which before week contemporaneous any prior or seller absent Mi- witness testimony. Government witness agree beyond the mere sales understanding re- McCraw that he and Dave nor testified (internal conspiracy.”) prove a ment does older package from an 50-kilogram a ceived omitted); v. United States accord citation whom McCraw glasses, bearded man (D.C.Cir.1988). Morris, tes- further “Captain.” Minor to as referred Medina, 944 F.2d But see United that he had told him that McCraw tified Cir.1991) (2d (“The for hold rationale delivery 50-kilogram from received another conspira not to be buyer a seller Although earlier. man a week the same scenario, buy-sell typical is that in tors of Chil- no in-court identification Minor made quanti a casual sale of small involves which dress, evi- pieces of circumstantial several drugs, there is no evidence ties of jury conclude that to permitted dence of, partici agreed to parties were aware “Captain” same in fact the was Childress However, in, conspiracy.”). larger pate (1) Wiretap evi- the deliveries: who made testimony credit Minor’s entitled to III tried Rayful Edmond dence showed drug two de “Captain” made that the same occupant of Room unsuccessfully to reach the Ed 50-kilogram magnitude to the liveries of City August 16. Crystal hotel on at of this Two deliveries organization. mond talking taped day next Edmond was continuity of relation magnitude suggest giving Tony about Lewis co-conspirator Edmond or and the ship between Childress ar- people who had two older something to support the inference ganization and van, of whom Edmond in a one rived in town organization Childress knew (2) The hotel rec- “Captain Willie.” called delivering a sizeable such he was which Days Inn Crystal City showed ords of the drugs involve a substantial must amount Chil- signing his name “Willie person two of these Evidence distribution network. dress,” as California listing his home state prove his is thus sufficient deliveries into van checked as a Chevrolet and his car conspiracy. participate agreement stayed more than August 5 and 226 on Room Daniels Columbus room records Although the night. one hotel argu “adopts” the likewise Daniels lost, logs indi- telephone August 7 were after evidence was insufficient ment that there period throughout the entire cated that Appel conspiracy conviction. support his made from August calls were late as partic no at 170. Daniels makes lants’ Brief that Chil- number to a California Room 226 and, in support of this claim argument ular (3) The as his own. elsewhere dress claimed sub of Daniels’ evidence the face of record license and signature on Childress’s driver’s conspiracy, it is participation stantial both in Days Inn were records Desiree Government witness unsustainable. argued that evidence, and the occasion and that on one Murphy testified identifiably the same man. were direction, personal Ill’s Rayful Edmond Highway (4) with a In an interview Missouri kilo 89 and 93 between Daniels retrieved officer, his nick- Childress said Patrol apartment a courier’s grams of crack from (5) trial, At Childress had “Cap.” name was ap- been City the courier had Crystal after sub- glasses. From this wore a beard addition, prehended Angeles. In po- prosecutor Los improperly acted on certain frequently Strip. occasions, lice observed Daniels on the of missteps prejudiced none Ms so occasion, On one Daniels fled from a Mer- appellant as to warrant reversal of a Street, N.E., parked cedes in front of 409 M conviction. $9,000 Strip, police on the and the recovered from between the seats which he and A. Legal Framework conspirator sitting. another had been From It is well established that pros a the facts that Daniels took direction from may ecutor bully-pulpit use the of a III, Rayful quanti- Edmond handled massive closing argument passions to inflame the drugs behalf, ties of on his and was seen on prejudices jury argue or to facts not in Strip large money, with amounts of North, evidence. See United States v. jury signif- could conclude that a Daniels was (D.C.Cir.1990). It is also the player icant in the conspiracy.6 Edmond that, law of this circuit challenges even where sum, In presented review of the evidence prosecutor’s closing to a argument have been example trial “disclose[s] classic of a preserved through timely objection, we will conspiracy.” narcotics sale and distribution reverse a require conviction and a new trial Gantt, v. United States 617 F.2d only if we determine that the defendant has (D.C.Cir.1980). appellants Each of the suffered Id. at 897- prejudice.” “substantial engaged and, varying an extensive de- 98. We have grees, continuing activity course of generally readily which the looked to three could find that factors deter- appellants mimng conspiracy’s scope improper by knew of the whether remarks agreed prosecutor purposes.7 sufficiently to further its prejudiced a defen- ease, dant: the closeness of the the cen- Closing Argument

V. trality error, the issue affected Appellants myriad challenges raise steps to the and the mitigate taken to the effects prosecution’s closing argument. Although of the error. We have also framed the test Appellants Jeffrey Raynice 6. Thompson, parity proof against any between the offered Childress, argue and Daniels further appellants these and their co-defendants. United Halliman, district court committed (D.C.Cir. reversible error fail States v. 923 F.2d grant 1991). their motions for severance because against co-conspirators the evidence tried Appellant Hardy particularized raises a more jointly greater, preju with them was much argument, severance addressed to evidence at spillover dicial effect. Under Rule 14 of the trial, which is discussed with his individual Procedure, Federal Rules of Criminal a district p. claims below. See 730 n. 13. infra may grant appears a severance if "it that a government prejudiced by defendant or the is Appellants argue also that the district court joinder.” prejudice Determination of the risk of admitting tape recording erred in of a conver- is "le[ft] ... to the sound discretion of the dis sation between informant Rae Zan- - States, trict coturts.” v. United U.S. Zafiro Perry against ville appel- and Constance all -, -, 933, 939, 113 S.Ct. 122 L.Ed.2d 317 except Perry. lants Out-of-court statements of (1993). co-conspirators “during are admissible if made district court The was well within its discretion conspiracy," the course and in furtherance of the denying appellants. severance to From the 801(d)(2)(E); otherwise are in- Fed.R.Evid. prosecution conspiracy, outset of the of this hearsay. admissible precautions preju- district court took to minimize substantially The district court admitted dice. The court severed those counts of the tape recording Group same in the charging trial of the I indictment crimes of violence and fire- defendants, panel and the Edmond concluded drug- arms offenses from the clearly that the district court did not err in con respect drug related counts. With to the cluding charges, that at least some split the district statements made court further the defen- recording groups, corresponding dants into were “in two furtherance their conspiracy” degree of and thus admissible. United involvement. Based on our review of Edmond, above, (D.C.Cir. 1995). persuad- the evidence summarized we are properly: challenge by appellants ed that the the absence district court acted of a Group any particular, prejudicial degrees II defendants shared similar statement in the re culpability, government presented cording “indepen- not have been "in furtherance against conspiracy, dent and accept pan substantial" evidence each of of” the we the Edmond appellants, holding recording these and there was no dramatic dis- el's was admissible. involved in the quantity drugs of cerning the severity of in terms of prejudice far, too prosecutor went conspiracy. The misconduct, the measures prosecutor’s drug however, that when he asserted misconduct, adopted to cure history of largest in the was the operation improper certainty absent the of conviction any introduced He had not the District. remarks. charge. Neverthe- support the evidence (internal cita- quotation marks at 895 Id. prejudice to be less, risk of find the we factors, omitted). we weighing these In tions drug traffick- of the insignificant. The scale jury acts with “com- presumed that have prosecution, and to the not central con- when sense and discrimination” mon appellants’ in- government’s evidence from a improper remark fronted charged drug distribution in the volvement to the district and owes deference prosecutor strong per- sufficiently conspiracy was of such a statement’s assessment court’s or the so close that the case was not suade us (internal jury. Id. impact on the prejudicial improper uncertain that convictions so omitted). quotation marks Moreover, appellants. prejudiced remark Application impact B. mitigated whatever the district might have had statement the erroneous challenges numerous Many appellants’ jurors instructing the to disre- repeatedly closing prosecution’s propriety of the to the the indictment’s gard character patently We ad- argument are meritless. on the charges, decide the based case sepa- only those claims warrant dress alone, that “[t]he and to remember evidence discussion. rate not evidence.” arguments of counsel are J.A., light Tr. at 107. XIV 3/30/90 drug conspiracy Largest strength of the and the these instructions closing argument, beginning of his In the evidence, conclude that the government’s we prosecutor stated: not improper does prosecutor’s statement obviously Now, gentlemen, as ladies of the convictions. warrant reversal indeed, heard, is, a sad occa- you this have history family you of a when have sion counsel on 2. Attacks defense womb nourished from the [sic ] that were argue in his rebuttal Appellants also dealing in in Wash- narcotics and has been prosecutor closing arguments, to their any- larger than ington, D.C. on a scale de- impermissibly accused repeatedly and in the thing have heard about that we jury. trying to mislead fense counsel city. particular history of this op attacks on have noted that We J.A., point 12. At Tr. at XIV 3/29/90 closing inappropriate are posing counsel objected, the defense counsel for various States, 437 argument, see Carter v. United objections. overruled their the district court (D.C.Cir.1970); gov and the prosecutor then continued: Id. The government the fact. The ernment concedes trafficking which of this narcotic The scale nevertheless, maintains, prosecutor’s ... is of in the millions of dollars made they repre were excusable because remarks magnitude. overwhelming attacks on the an effort to meet the sented argue these Appellants Id. at 12-13. veracity of and on the prosecution’s conduct they improper because were were statements by various de that were its witnesses made supported evidence record arguments. In closing their fense counsel intended arouse because were deed, lawyers for the defense certain jury. passions of the key prosecution wit suggested had a conse perjured nesses had themselves The find no reversible error. We Chil quence government coercion. See the narcotics prosecutor’s statement (district dress, court’s F.Supp. at “overwhelming magni trafficking was of an lawyer ac opinion noting that “one defense nothing more than did invite tude” shotgun holding a government of on cused the inference based to draw a reasonable wit- the heads of certain con- knowledge and the evidence common nesses”). prosecutor’s purpose suppressed was to search and were prior to trial. the attacks on his witnesses’ veraci- Perry testify and, discredit elected to in her defense ty by jury’s calling the attention to the de- cross-examination, prosecutor ques- lawyers’ misrepresentation pros- fense many tioned her about expensive im- ecution’s evidence. provements that had been made to her resi- purchased dence after she had it. In his Although we cannot condone this closing argument, prosecutor the asserted kind, response by in sort of attacks defense $70,000 spent had been on new furnish- prosecution may counsel on the taken be into ings objected for her home. Defense counsel assessing prejudice account when ground to the statement on the that it allud- prosecutor’s have resulted from a ex ed to a fact not in evidence. The district See, e.g., v. cesses. United States Rodri effectively objection, overruled the re- (1st guez-Estrada, 877 F.2d Cir. sponding jury’s that “the recollection [of the 1989); Saenz, v. 747 F.2d United States J.A., will evidence] control.” XIV Tr. 3/29/90 (5th Cir.1984). 939-43 United States Cf. at 19. 1, 11-12, Young, 470 U.S. 105 S.Ct. 1044-45, (1985) (prosecutor’s 84 L.Ed.2d 1 prosecutor’s The clearly statement was im- improper remarks rebuttal did not rise to proper government because the had intro- error, plain part level of because de duced no evidence of the dollar value improper closing argument). fense counsel’s furnishings. Indeed, government con- occasion, On at least one we have noted that harmless, cedes as much. We find the error prosecutor’s offending a statements “seemed Although however. prosecutor had failed response to be a to” defense counsel and precise introduce evidence of the dollar militating against treated this as one factor amount improvements attributable to the and Perholtz, reversal. United States v. furnishings, his extensive cross-examination (D.C.Cir.1988). 343, 361 that, revealed over a period, three-month costly improvements number of pur- and case, In this defense counsel ma chases had been made to and for her home. ligned witnesses, prosecution and its and fence, system, These included a an alarm prosecutor responded in kind. More swimming pool, dining sets of room and bed- over, rejected defense counsel an instruction furniture, wall, closets, room a mirrored new proposed that the district court to read to the carpeting, chandelier, new and a new bath- jury in any prejudice order to cure list, room. impressive Presented with this might have resulted from both the defense ample concluding had an basis for prosecutor’s counsel’s and the excesses. We tens of thousands of dollars had been owe deference to the district court’s assess spent improvements furnishings home and impact hyperbole ment of “the of both sides’ period. Accordingly, within this we think it North, upon jury,” 895; 910 F.2d at highly unlikely prosecutor’s that the improp- here, question we have no reason to er allusion to an actual dollar amount sub- prosecutor’s court’s conclusion that “the ora stantially prejudiced Perry any ap- other tory great was counterbalanced to a extent pellant. by equally fiery equally improper— — employed by rhetoric defense counsel.” George Derricott f Childress, (internal F.Supp. quo at 1135 omitted). Accordingly, tation marks we can trial, During government in appellants preju not conclude that suffered troduced evidence that connected a certain justify dice sufficient to the reversal their George particular Derricott with activities convictions. involving Perry Rayniee Constance Thompson. prosecutor The made reference Receipts improvements Perry’s for closing to that evidence his initial state home closing arguments, ment. In their counsel Receipts expenditures Perry Rayniee Thompson responded made to improve appellant Perry’s and furnish suggesting alleged resi that if the conduct had during occurred, dence were recovered an unlawful in fact would have Washington. In the Bates Streets along the other defen- with Derricott indicted attorney Hardy’s questioning, course of rebuttal, prosecutor reminded dants. in order to confine interrupted Robinson police officer jurors of a statement testimony to the contents of November by one of who, question to a responding 17 interview: counsel, police testified the defense you he Minor that after Q: Did Mr. tell seeking a warrant for Derricott’s

were then Tony and Bates Lewis at 1st suggested that met Mr. also prosecutor arrest. Lewis, Street, Tony mean- dropped off de- he might have been Derricott’s indictment with him a gone had somewhere opera- he part he was of another layed because another took him car then back investigation. under tion that was still Bates? at 1st and location rebuttal Appellants contend these time Mr. Minor A: There came a when alleged facts that were improperly comments told me— later however, instance, In this not in evidence. No, he said is in Q: I mean —what not were made statements prosecutor’s question. Did report. Let me strike that response to but in his case-in-chief part as day that he— that on the Mr. state Minor govern arguments that the counsel’s defense added). J.A., (emphasis 160 XI Tr. at impeached 3/22/90 Derricott failure to indict ment’s answer complete to his was unable Robinson the infer In order to rebut its case-in-chief. cross-examination, Robinson On on direct. them, suggest by prosecutor ence drawn subsequently in- had that Minor revealed innocence other than Derricott’s reasons ed kilograms had later him that the 35 formed him. failure to indict government’s by a transported to location another been J.A., (“maybe 22 Mr. Tr. at XIV See 3/30/90 Fila-Rob, Hardy’s which man named wasn’t in the name indictment Derrieott’s Thus, testimony as a whole alias. Robinson’s reason, maybe”). Supreme As the specific kilograms in fact did that 35 suggested Young, out United States pointed Court Hardy, via Lewis. go to must be examined remarks prosecutor’s trial to determine testimony, context of the “within the In on Robinson’s direct reliance prejudi amounted closing behavior to Hardy argued [his] whether in his state- counsel for 1, 12, 1038, testimony U.S. S.Ct. cial error.” 470 was inconsistent ment that Minor’s (1985). Here, ques rebuttal, report. 84 L.Ed.2d Robinson’s In with indicted had been tion of Derricott responded: whether prosecutor and, by as defense counsel was introduced Hardy’s there was a claim is that Robert noted, prosecutor’s “[t]he the district court officer, and written report that was respond more than substan ‘did no remarks writing report, that the course of during right scale.’” Chil tially in order the number of didn’t write down officer dress, Young, F.Supp. (quoting at that that Mr. had said other times Minor 1045). 12-13, 105 at at S.Ct. 470 U.S. drugs Hardy had —that were delivered Mr. Hardy, he tried to confine because to Mr. report 5. Police recall, officer, you specif- to a might date, come out and so that it would ic trial, Minor testified that At James officer of the you not hear from the would made five bulk deliveries cocaine he drugs had been deliv- occasions that other 35-kilogram Hardy, including one appellant Street area. Fila-Rob Bates ered to Hardy sought to delivery August of 1988. J.A., joint- Appellants Tr. at 10. demonstrating testimony by XIV impeach 3/30/90 individually reversal on ly Hardy prior seek with Minor’s it was inconsistent ground prosecutor’s statement delivery. 35-kilogram description of the effectively the content of relied on rebuttal Robinson Hardy called Detective John ad- report not been Robinson’s had concerning report of a No testify Robinson’s —which Minor’s evidence —to corroborate mitted into with Minor. On interview vember addition, Hardy testimony. contends examination, Robinson recalled direct suggested that prosecutor improperly had delivered 35 that he Minor admitted Minor’s tes- would have confirmed First Robinson Tony at a home at kilograms Lewis timony Appellants that he made other deliveries to Har- contend that this statement im- dy. permissibly referred evidence before the grand jury. government notes, As the how- reject argument appellants’ We ever, prosecutor’s statement referred prosecutor referred to the contents of Zanville, to the arrests of Sellers and report. Although agree Robinson’s we grand not to the jury testimony. content of prosecutor’s the district court that the rebut Moreover, merely it offered an alternative best,” tal comments were “convoluted at explanation for the lack of photographs that Childress, F.Supp. we believe Raynice Thompson’s lawyer referred to in reading passage that the most natural of this closing argument. her again, So once we it attempt by Hardy’s is that referred to the reject prosecutor the claim that the commit- scope counsel to confíne the of Detective ted an closing error statement testimony Robinson’s on direct rather than substantially prejudiced one or more of the report the content of a not admitted into appellants. troubled, however, evidence. We are more prosecutor’s suggestion that Robinson Hardy would have testified that had received VI. TRAvel ACT Convictions several other deliveries from Minor. While Robinson testified on cross-examination that provides, perti Travel Act 36-kilogram delivery way the found its to part: nent Hardy, he never testified as to the other Whoever foreign travels interstate or alleged by deliveries Minor. any commerce or uses facility the mail or however, Hardy, did not suffer substantial commerce, foreign interstate or with prejudice from this misstatement because the intent to— against particularly case him strong. First, 35-kilogram delivery the one alone, jury the could have inferred that Har- (3) promote, establish, ... manage, car- dy knowing player was a and trusted on, ry promotion, manage- or facilitate the charged Second, conspiracy. independent ment, establishment, on, carrying any or of

testimony Hardy conspiracy. linked to the activity, unlawful Childress, F.Supp. (recounting at 1135 performs and attempts thereafter or to against Hardy, including testimony evidence perform any specified of the acts in sub- helped that he had load a suitcase with (3), paragraph[ ... ] shall be fined not $2,000,000 purchase ship- cash for the of a $10,000 cocaine). imprisoned more than or not more Finally, of ment the court re- years, than five or both. peatedly rely instructed the to on its evidence, recollection own not on the 1952(a) (1988 1990). § 18 U.S.C. II Supp. & closing statements of argument. counsel activity” The Act defines “unlawful to include “any enterprise business involving ... nar- Raynice Thompson’s closing argument substances_” cotics or controlled 1952(b) (1988). § U.S.C. To obtain Travel argument, In her final counsel for conviction, government allege Act must Raynice that, Thompson asserted because (1) prove and interstate travel or use of a Jeffrey Raynice Thompson and had not been (2) facility in commerce with the intent to by police observed surveillance cameras in (3) promote activity an unlawful and 1988, early government’s against case performed attempted defendant contradictory. them was weak and In re thereafter perform performance or facilitated the sponse, prosecutor explained an act in overt furtherance of the unlawful Thompsons subjects had not been the See, activity. e.g., Hayes, police early United States surveillance in 1988 because the (4th Cir.1985); government 775 F.2d was unaware of their United involve (3d Wander, early ment until States v. 601 F.2d when Cir.1979). Sellers and Zanville were arrested. (indictments that Wander, at 1259 601 F.2d Sufficiency the Indictment

A. liberally challenged are construed tardily are Thompson, Jef Rayniee Appellants validity). in favor of argue Rachelle Edmond frey Thompson, and standard, conclude that we charging Employing this of the indictment the counts to state an construed can be failed to the indictment Act violations with Travel them that, accordingly, we need offense and an offense. had committed charge that Act on Travel convictions appellants’ declared reverse part, pertinent indictment which the of the cases on that basis. All 1988, to in or in or about March From al rely involved indictments appellants 1988, [Jeffrey Thompson, L. May about statutory re together to mention failed Edmond] and Rayniee Thompson Rachelle subsequent overt act quirement willfully, knowingly unlawfully, did facility in inter travel or use of a interstate in inter- to travel cause others travel and Hayes, 775 F.2d at See state commerce. commerce, Mary- from the State state Wander, 1259; 1282; Columbia, and else- District of land to the F.Supp. [Vazquez], 585 v. Sanchez carry promote, where, intent with the (N.D.Ga.1984). Thus, the indict 994-95 carry- on, promotion and facilitate the defense ments failed to alert activity, to wit: the an unlawful on of element government prove had to third possession intent of and with distribution crime; act namely, an overt subse base, and cocaine cocaine to distribute illegal that furthered quent to travel possess conspiracy to distribute Here, charges the activity. the indictment and co- cocaine intent to distribute offense, in conelu- albeit third element ...; [Jeffrey L. and thereafter caine base notes, at language. sory As Thompson, and Rac- Rayniee Thompson, upheld Travel Act four have least circuits attempt perform did Edmond] helle virtually indict identical convictions based acts, per- others to and did cause perform See, e.g., v. Muskov United States ments. acts, pro- attempt perform form and (7th Cir.1988); 1319, 1326-27 sky, 863 F.2d on, pro- mote, carry and facilitate Cerone, 938, 951 v. 830 F.2d United States said unlawful carrying on of motion and (8th Cir.1987); Stanley, 765 v. United States activity. (5th Cir.1985); 1224, United F.2d 1239-40 argue that Appellants at 27-29. I J.A. (9th Tavelman, 1133, 1138 650 F.2d v. States charge an because it did not offense count Cir.1981). they per- acts specify overt failed to what perform subse- caused others to formed or indict Assuming arguendo alleged travel. quent to the interstate technically because it ment was defective sufficient overt acts with they allege did failed to Appellants concede it nonetheless specificity, we conclude sufficiency indictment be contest the Travel Act charged an offense under the correctly note that Although they an low. elements of it set out the essential ground because challenged on be indictment appellants to chal crime. time for charge any up at time The that it to state failed than its lenge defects in the indictment other objection to including appeal, direct an to and long passed. charge has an offense failure on other “defects” must an indictment based 12(b)(2) (f); & Fed.R.Crim.P. trial or will be deemed raised before be (5th (f). London, 12(b)(2) 211 n. 5 & v. & Fed.R.Crim.P. waived. Cir.1977) (noting questions wheth “[t]he Moreover, a claim that indictment when sufficiently a de apprises er an indictment allege is made for first an offense fails him charges against and commenced, the indict fendant time after trial has offense are states an whether an indictment it is so defective “upheld be unless ment will proeedurally distinct” conceptually and not, any construc both by that it reasonable does prior to must be raised tion, the defen because former an offense for which charge trial). failed to ex Finally, appellants have v. States Gir convicted.” United dant [was] Cir.1985) (in any lack (7th prejudiced were onda, plain how 758 F.2d omitted). in the indictment. particularity See also quotation marks ternal Sufficiency Maryland B. of the Evidence residences in the District’s sub urbs, they placed large quantities of crack Jeffrey Thompson Appellants and powder packaged and cocaine for street dis argue Edmond in the Raehelle alternative tribution in the hands of a courier for the their Travel Act convictions are not conspiracy. They must have foreseen that at supported by gov sufficient evidence. The portion drugs least some of those sup would responds Thompsons ernment ply Rayful Edmond’s massive distribution properly Edmond were convicted for the Indeed, network within the District. the evi Act violation Travel committed their co- foreseeability dence of sufficiently strong was conspirator, Kathy partici Sellers. Sellers that the district court’s failure to discuss the pated as a courier who foreseeability requirement in its instructions regularly transported drugs Maryland concerning liability Pinkerton does not rise into the District of Columbia the cash plain to the level of error. United States proceeds drugs from the sale of from the Cf. Broadwell, (11th 870 F.2d Cir. Maryland. District into She testified that 1989) (finding prejudicial no error in district entry Raehelle Edmond facilitated her into “reasonably court’s omission of foreseeable” drug as a courier and that on instruction). portion of Pinkerton Accord picked up drugs numerous occasions she ingly, uphold we appellants’ Travel Act con Maryland apartment Edmond’s and delivered conspiracy theory liability. victions on a points them the District and that she Auerbach, See United States v. given drugs by either Raehelle Ed (7th Cir.1990). n. 2& companion, Jerry mond or her Millington. presented testimony also VII. SENTENCING Edmond, Rayful that at the direction of Jef frey Raynice Thompson bagged cut and A. Base Offense Level kilograms one to two of crack about three Appellants Childress, Hardy, Ed period. times a week over a three-month mond, Stewart, Perry, Jeffrey Rayn crack, Thompsons bagged After the had Thompson argue iee the district court “ ” Kathy pick up Sellers would the finished improperly used a ‘one size fits all’ meth product points and deliver it to in the Dis sentencing appellants by od attributing trict. kilograms appellant of cocaine to each on Relying Supreme explica- general Court’s finding the basis of its that the con conspiracy liability tion of spiracy in Pinkerton v. kilograms involved more than 50 of States, 640, 647, United 328 U.S. Appellants’ S.Ct. cocaine. Brief at 78. We hold 1180, 1184, (1946), 90 L.Ed. 1489 by we have the district failing court erred held that findings scope make individualized about the appellant’s conspiratorial agreement of each conspirator guilty can be found of a and the evidence that led it to conclude in upon

substantive offense based the acts of each of their cases that the 50 kilos distribut coconspirator his long so as the act was reasonably ed were foreseeable. We further done in conspiracy, furtherance of the was conclude that only this error was harmless scope within the of project, the unlawful Childress, respect appellant with who was reasonably and could be foreseen as a nec- by found the district court to have handled essary consequence or natural of un- personally full in 50 kilos furtherance of agreement. lawful conspiratorial agreement. Because Jef Sampol, United States v. 636 F.2d frey Thompson challenge drug failed to (D.C.Cir.1980). readily This standard is met below, attribution we review his for sentence here. Sellers’ services as a courier were plain only error and find none. scope both furtherance of and within the agreement Conspiratorial Liability the unlawful to distribute crack Under the Sen powder Thompsons tencing cocaine that the Sentencing Guidelines. Under the joined. Guidelines, Edmond had Her violation of the the district court determines a Act reasonably by Travel was also delineating foreseeable defendant’s base offense level Thompsons § and Edmond. At their his “relevant conduct.” U.S.S.G. 1B 1.3 regarding reasonable offenses, findings on “factual (1989).8 the base drug-related In appellant’s foreseeability it relates to each drugs the amount of depends on level offense Anderson, 39 conspiratorial participation.” See conduct.” in the “relevant involved 331, 353; (1989). also see con- F.3d at “Relevant Pt. D Ch. U.S.S.G. (7th Edwards, 1393-94 Cir. duct,” turn, encompasses the standard 1991). “con- conspirator is liable for that a principle the execution of others furtherance

duct activity criminal jointly-undertaken Individual Requirement The de- reasonably foreseeable that was cases, recent we have Findings. ized comment, (n. 1) 1B1.3, § fendant.” U.S.S.G. ensure in order to careful concluded (1989). conspiratorial principle of this Under co-conspi limitations on to these adherence then, limi- are two substantive liability, there sentencing, the liability in ratorial Guidelines for responsibility a defendant’s on tations particularized make must district itself by co-conspirators: Those undertaken acts agree scope of the findings both the about of’ the same be “in furtherance must acts and the entered into that the defendant ment has the defendant conspiracy to which drugs the amount of it finds basis on which reasonably foresee- must be agreed, de reasonably to that individual foreseeable defendant. to the able Edmond, 1104-06; F.3d at fendant. See (in Anderson, the context F.3d at 351-53 co-con conduct of Because uncertainty the district about whether con “in furtherance of’ the spirators that is the erroneous standard application of court’s joined may be has spiracy that defendant Saro, 24 F.3d prejudicial); had been defendant, proper attribu to the attributed (same). (D.C.Cir.1994) As articulated 288-90 scope of analysis of the requires tion Edmond, moreover, requirement of this joined— has conspiracy that the defendant procedural mandate: findings is strict agreement. scope conspiratorial of his likely supports Even where evidence conspiratorial scope of a defendant’s conspirato single conclusion there turn, depends analysis of agreement, defendants, joined by all the agreement rial First, engaged in have above: the sort we spell out sentencing must court at the district single conspira establish a the evidence does evidentiary basis in some detail the joined in has cy, in each which defendant “individualized It must make conclusion. scheme, conspiracies in multiple overall scope of linking appellant’s findings ... each second, agreements; volving separate quan conspiracy participation by co-conspirators any there “side deals” are Edmond, drugs to [him].” tum of attributed not attributable to that are convicting jury verdict 52 F.3d at 1105.9 A supra part joined by See IV. the defendant? single in a participation the defendants obviate the need that co-con does it is Once ascertained findings by the sentenc these individualized is furtherance spirators’ conduct speaks to the verdict agreed, court. Such a conspiracy to which the defendant only agreement scope of the defendant’s that conduct question is whether the next It not address the very general terms: does the defendant. reasonably to foreseeable was specific actions demon question of which can determine whether we Because in furtherance of that co-conspir at trial were by strated drug into transactions entered conspiracy were foreseeable single reasonably to the de were foreseeable ators only these And it is actions conspirators. by examining degree of the de fendant predicate for defen knowledge form the in and fendant’s own involvement depends dants’ sentences. conspiracy, this assessment suggesting the strongly existence then evidence those in effect at the 8. The 1989 Guidelines were single conspiracy to whether the is relevant sentencing. time of court's to make individualized district failure scope findings object about before the the defendant 9. When does defendant's plain error. See agreement level of drugs rises attributed district court to the amount him, p. appeal, 727. raising the issue for the first time on infra

723 J.A., conspiracy.” XV re co-defendants articulated similar circuits have Other Circuit, contrary, for in Tr. at To the Childress Sent. The Seventh quirements. under stance, “[e]very liability Sentencing sentence fol- explains that under Guidelines supported rea principles must be of con- the Guidelines lows from “the well-settled something Pinkerton, more means sons .... ‘Reasons’ spiracy law” enunciated important not distinction conclusions—a than at which hold U.S. at S.Ct. future is at whose only to the defendant conspirators responsible for conduct that is process.” Ed appellate but also to the stake “reasonably foreseeable” and “in furtherance (internal wards, quotation at 1399 945 F.2d i.e., joint undertaking,” within the of their omitted). a dis Accordingly, it insists that conspiratorial agree- scope of the defendant’s than state in “concluso judge do more trict Saro, 24 ment. F.3d at 288. drugs quantity of attrib ry” terms sentenc- The district court summarized its reasonably to the de foreseeable uted was opinion: in a It ing determination written Rather, judge must “set[ ] Id. fendant. inescapable conclusion that “reaehe[d] why particular amount the reasons forth fifty conspiracy involved more than kilo- him, reasonably drugs foreseeable cocaine,” grams of that each of these “f[ound] to the evidence before with reference reasonably or should have defendants knew Id.; v. Is court.” see also United fifty kilograms or more of co- foreseen that (11th Cir.1993); mond, F.2d during the course of caine were distributed Lanni, United States and, “[a]ccordingly, ... as- conspiracy,” (2d Cir.1992). 1093-94 offense level signed] each defendant base Applying Sentencing in this Case. Edmond, 746 of 36.” United States v. sentencing ap to the these standards (D.C.Cir.1990). F.Supp. The district challenges on this pellants raised below who reasoning sentencing the same court used Stewart, Childress, Edmond, Hardy, issue— defendants, Group Group II both the I and Raynice Thompson conclude Perry, and —we panel already the Edmond has ad- requisite court failed to make the the district ap- dressed itself to the infirmities of appellants’ pre findings. Reviewing these proach. reports record of their sen sentence and the ' explained, panel Edmond the dis- As the hearings, the district tencing we find “ scope duty to ‘determine the trict court’s requisite engage in the individ court did not agreement defendant] conspiratorial [the defendants, the analyses. As to most ualized ” by general joined’ cannot satisfied con- be con simply general district court stated conspiracy as a whole dis- clusions that by prepon ... that “the court finds clusion drugs. Ed- amount of tributed certain of the evidence that the derance Saro, mond, (quoting 52 F.3d at 1104 in convicted of which this defendant stands omitted), Rather, 288; internal citations kilograms of cocaine volved more than 50 specific spell out find- the district court must grams of cocaine base or more than 500 ings the individual defendants about quantity of cocaine was crack and that this order their relation to the reasonably this defendant.” foreseeable to conspiratorial scope of their determine the J.A., See, Perry Tr. at 14. e.g., Sent. XV analysis might be similar agreement. This Indeed, respect scope of the to the just engaged in with we have to the one Saro, are, agreement analysis, there appellants’ claims of variance relation to actively em that the court “was indications IV; evidence, supra part but see insufficient wrong legal focus ploying the standard” is, satisfy what conclusions do not our own foreseeability. exclusively on reasonable Edmond, procedur- the district court’s under Thus, at sentenc 24 F.3d at 289. Childress’s analysis in the first duty engage in this al stated, “We ing hearing, the district Edmond, Thus, too, the evi- in instance. about, sentencing pur talking for are not “strongly ... to the con- pointed quite dence talking theory. We are poses, the Pinkerton agreed appellants that each of these clusion namely, the con something ... about else scheme”; neverthe- join but we the overall that was foreseeability, possession cept of us, Court, District not that “the other less found reasonably part on the of foreseeable harmless. scope agree- that the error could not be deemed proper of determine [must] standard, Saro, 722; Op. Applying at 721. this strict we 24 F.3d at Op. ment.” at see also (“In course, indi must conclude that the failure to make conspiracies, of each some only in findings was harmless joined ... in the overall vidualized participant has Childress, scheme, for whom the district court scope conspiracy of the is case so that the personally finding that he handled But the here did made identical for each.... PSR (internal attributed, drugs kilograms analysis.”) quota- amount of engage in this omitted). J.A., of cocaine. See XV Childress Sent.Tr. the likelihood tions Whatever (“On 16, 1988, so, August at 50 Willie G. Chil the district court as the finder it would do kilograms of cocaine to sentencing phase is not bound dress delivered of fact in the ”). the David McCraw and James at the same conclusion about to arrive Minor — proven that we do structure Finally, Jeffrey Thomp turn to we By reviewing appeal. verdict son, challenge this below who failed to raise token, course, our remand in no the same only if prevail and thus can he demonstrates pertinent way suggests a that the sub- belief Saro, plain can be plain error. Under error met. stantive standards have not been the trial court fails to established where general court’s determination The district requisite findings and it is reason make the foreseeability equally con- of reasonable was ably likely that it would have made a differ simply clusory. may not The district court proper if it had ent attribution made foreseeability: It ar- reasonable must assert Saro, findings. 24 F.3d at 290. This stan support specific findings ticulate of its Jeffrey Thompson’s is not met in case. dard appel- “that individual determination each light In of our conclusion above that there participation in the made lant’s Thompson was sufficient evidence convict reasonably drug entire amount foresee- participation single conspiracy Edmond, him 52 F.3d at able to or her.” charged testimony and the trial Edwards, 1105; see also 945 F.2d at 1399 Thompsons personally packaged at least 36 (“[District judges inqui- should conduct this sale,11 p. supra kilos of crack for street see fashion, ry conclusory setting in a less forth reasonably likely we do not find it why particular amount of the reasons assigned the district court would have him, reasonably drugs was foreseeable to Thompson offense a different lower base with reference to the evidence before the requisite findings. if it level had made court.”).10 Weapons B. Enhancement must next consider whether this We case, any again except Morgan All error was harmless we of the defendants guidance. keeping challenge two-point In turn to Edmond for the district court’s en findings requirement is hancement of their offense level for the rea with its view mandate, procedural pan sonably possession firm of firearms the Edmond foreseeable Edmond, conspirators. logic error to The el found the be harmless where other Saro, specific finding applies equal court had force the district made and Anderson personally had the individual defendant the firearms enhancement. basis requisite drugs holding posses amount of defendants liable for firearms handled by co-conspirators conspiracy. furtherance of the all other sion is the same as the holding drug instances —even where the defendants were basis for defendants liable “managerial by co-conspirators: found to have exercised a role” transactions (which applied reasonably foreseeable and in to none of the defendants conduct case) Thus, conspiracy. panel this Edmond determined furtherance of the to hold —the Quantity example findings Drug 11. Under the Guidelines Table For an sort court, F.Supp. satisfy requirement, applied by our the district see 746 would see discus- findings support Thompson’s sentencing offense is avail- sion of the court's 203 n. base level upon possession guns able of either 50 kilos of of its conclusion that the attribution co-conspirators reasonably was foreseeable. In- cocaine or half a kilo of crack. See U.S.S.G. Table) (1988). pp. (Drug Quantity § 2D1.1 724-725. fra

725 and, therefore, tity ... the court finds that firearms possession liable for of a defendant reasonably gun must possession court of the was co-conspirators, the district by J.A., findings Perry as you”), Sent. Tr. same individualized foreseeable to XV make the drug by respect (possession eo-conspira- transactions: at 15 of firearms scope of that defen within the reasonably conduct was to this de- tors “was foreseeable agreement that it conspiratorial particularly dant’s in view of her wide fendant Although in as reasonably foreseeable. range knowledge scope of the of the con- of enhancement, the dis weapons signing the spiracy and its various members as demon- requisite specific find trict court made by the recorded conversations she strated foreseeability for several ings of reasonable con- with Alta Rae Zanville which were had failed in all cases appellants, it recorded”); J.A., sensually XV Sent. Stewart scope requisite analysis of the engage in the (“[T]his 27 defendant sold undercover Tr. at agreements. of their Young a half ounce of cocaine officer Darrell Street, very day M same that a out of 407 foresee respect to reasonable With and ... pistol was seized from location findings ade ability, court’s were the district Street, 407 M this defendant was inside appellants. The quate for several of the executing a Northeast when the officers were instance, concluded, that the use of court premises on that warrant for those search Hardy reasonably foreseeable guns was day.”). Hardy a sub personally “handled because drugs money.” XV quantity of stantial possession To conclude J.A., express Its Hardy at 56-57. Sent.Tr. foreseeable, however, reasonably guns was findings Hardy’s personal involvement about Saro, inquiry. 24 F.3d does not end the See large following: handled He included the (“[m]ere foreseeability enough”). not at 288 is money Bates Street drugs and at amounts of by the district gun All the uses mentioned occasions, including in one occasion on four Group I opinion involved court in its written cocaine, and he “also volving kilograms of 35 defendants, 206-07, F.Supp. see 746 at couple a of million help[ed] put in suitcases automatically within the uses are not such pur for the sent to California dollars be Group appellants’ conspira II scope of these agree at of cocaine.” Id. 57. We chase If, instance, agreements. the evi torial such ex findings that a defendant handled separate hub showed that there were dence of a quantities drugs the course tensive involving Rayful spoke conspiracies, each support adequate to the con conspiracy are one, III, merged into Edmond but by eo-eonspira guns that the use of clusion by participants in one hub could guns use of See, reasonably to him. foreseeable tors was participants to the anoth not be attributed Pessefall, v. 27 F.3d e.g., United States the users of the question — whether er. denied, (11th Cir.1994), U.S. cert. appellants in this case were guns and the -, 130 L.Ed.2d 115 S.Ct. requires single agreement merged into a Bianco, (1995); United States analysis neglected of a sort careful (1st Cir.1991). In several of the Friendly explained Judge court. As district eases, appellants’ the district other often ago, “[a]lthough it is usual and long findings to made sufficient individual likewise agree necessary in cases for the theory guns supplement its basic acts, proved to be inference ment of “the reasonably foreseeable because were agree remains the gist of the offense bagged, quantity purchased, large of cocaine ment, to deter and it is therefore essential conspiracy.” during and sold the life agreement kind of or understand mine what J.A., Thompson F.Supp. XV at See Borelli, defendant.” as to each existed testimony (crediting trial Sent.Tr. difficulty (discussing the F.2d at 384 up bags with 100 picked “five courier conspiracy to “what applying notion of “three to ziploc bags inside” of crack cocaine illegal of an busi is the conduct substance of this apartment from the four times a week noting the period years” and over a ness period some and his wife” for defendant to deal with “tendency in such cases concluding “[y]ou handled time and though it were quan- crime drugs, very substantial great deal of Hardy’s Conspiracy. Role in the Taken in group rather than an [of women] men (internal light government, to the agreement”) quotation omit- most favorable act of ted). trial that Har- the evidence at demonstrated dy frequent companion of the various intricate, na Because of the fact-intensive co-conspirators, particularly Tony Lewis. inquiry, proper it is for the ture of this co-conspirators testified about activities Two engage to it in the first instance district court Hardy engaged conspira- in on behalf quite strong points the evidence even where cy. that on at James Minor testified least ly appel that each of these “to the conclusion occasions, Hardy helped him four and Dave scheme, agreed join lants to the overall transport bags McCraw suitcases or athletic may proper sentencing for the ‘it well be containing cocaine within the Bates Street [appellants] hold re remand] [on occasions, ” area. On these Minor guns by co-conspir sponsible for’ the use of brought drugs Crystal City, from McCraw Edmond, (quoting 52 F.3d at 1105-06 ators. Street, Virginia, At Street. Bates Bates Saro, 289). panel at Edmond As the picked up Hardy McCraw and Minor on the concluded, findings re the individualized going to re- comer —sometimes after inside Court, quirement compels “the District Tony instructions from Lewis —and ceive us, proper scope agree to determine the him or blocks drove house six seven ment.” Id. away, point Hardy at which carried the con- tainer inside and came back out to be driven C. Conclusion back to Bates Minor Street. testified above, In accordance with the discussion “general” there was conversation when he appellants we vacate the sentences of all Hardy, inwas the car with McCraw and but remand, except Morgan. On the district J.A., did not detail it. VII Tr. at 128. 3/8/90 court must in each case make individualized provided testimony Rae Zanville the other findings scope about whether the of each Hardy’s activity conspiracy, describing appellant’s agreement encompassed the use picked up money an occasion when she Edmond, guns. appellants Hardy, For transport Tony apartment. from Lewis’s Stewart, Perry, Rayniee Thompson, we She testified that there were several million further direct that district court make apartment Rayful dollars at Lewis’s and that particularized findings quantity on the Hardy put III and Edmond some of that drugs be attributed to each of these money into her suitcases. appellants. trial, Psychological Report. Prior to Hardy consulting psy- was examined Aegumbnts

VIII. Individual chologist. Hardy psychologist This found le- gally effectively competent, but retarded. Hardy A. Robert reported Hardy He “belie[f]” could objects Hardy to the district court’s lawyer] sufficiently, “assist and suffi- [his request expert denial of his to introduce tes ciently helped be to understand the court timony functionally trial he was men system, trial,” competent so as to be to stand tally below, although As we retarded. detail Hardy’s but also found that Hardy significant drugs handled a amount of certainly behavior and limitations restrict money conspiracy, might for the one degree completeness some ele- significantly draw different inferences about gance provided. that he can be defense Hardy’s state of mind from these activities is, all, This after a man who can not read depending degree Hardy’s on the mental “himself,” “animal” or words such as who acuity. proffered We believe the evidence of accurately report cannot the direction of potentially mental retardation was ma thus rising, general the sun’s or the use of a Hardy terial as to whether entertained the thermometer, and who could not define specific purposes intent to further the “fabric,” “enormous,” words or “conceal.” conspiracy, accordingly and we hold that the categorically barring Lanning Joseph district court erred in E. Moldauer to Letter (Jan. 16, 1990), Virgilio reprinted II such evidence. J.A. condition becomes irrelevant Hardy’s ca- dant’s mental respect to mental With at 115. (inter- jury.” at 1143 confusing to a and Id. reported: psychologist the pacity, omitted). Hardy subsequent- quotations nal functioning Hardy to be Mr. ... found I motion, asserting that the ly renewed his range of mentally retarded just above did, he in testimony relevant to whether was (his 71, I.Q. was intelligence Full-Scale fact, to him as well the acts ascribed commit criterion the strictest points above two district specific intent. The as to the issue retardation). clinical From a mental rejected grounds. It confirmed both court however, considering func- his standpoint, mental position that “a defendant’s its earlier (below reading grade illiteracy third tional negate to may be relevant condition level) judgment and his social poor and government’s case rea element of the mens him as judge cope, one could ability to charged chief, with the defendant is when effectively retarded. crime_ dimin- [But] the specific a intent 1, II at 114. reprinted J.A. Id. at apply argument not capacity ished does Testimony. Opinion to Present Motion here, where, charged with is as defendant trial, Hardy to moved introduce Prior to States v. intent crime.” United general a testimony “on the issue whether expert 89-0162-14, 2at Hardy, Order Cr. No. times, mental had a Hardy, at relevant (D.D.C. 7, 1990),reprinted II J.A. at Mar. state, intelligence, consistent with including rejected Hardy’s district court also 121. The charged, well as required for the offense was separate argument that the evidence act(s), elements, and conduct overt as the fact, had, in commit- whether he relevant to to Hardy’s Motion for Leave alleged.” acts, concluding that alleged “[d]e- ted the 12.2(b) Rule Notice Attached “Late”-File so- greatly overestimates fense counsel (Jan. 30, 1990), II at 88 reprinted in J.A. the defendant phistication of the acts that Motion”). (“First district court Expert The 3, reprinted in performed.” Id. allegedly at as one to introduce the motion understood II J.A. at testimony the issue intent expert on grounds of Hardy presses both appeal, On ground Hardy’s request on denied testimony have should admission —that and, therefore, testimony irrelevant “such is and to negate to rea mens been admitted charged only as is inadmissible defendant Hardy’s hav- the unlikelihood demonstrate in this case.” general intent crime with a need alleged acts. We out carried F.Supp. Hardy, 730 States v. claim the evidence his address (D.D.C.1990). The court reasoned rea.12 to his mens would be relevant con- “testimony mental although on abnormal Capacity Evi- Admissibility Mental negative, or ... relevant dition be In United Specific Intent Crime. dence in a condition that is specific mental establish Brawner, crime,” a States v. “when defendant an element expert (D.C.Cir.1972), crime, this court held as is charged general intent is condi- testimony mental about abnormal here, concerning defen- ease evidence (Feb. 22, 1990) reprinted in II Testimony suggested argument, government 12. At oral however, motion, Har- the same argument J.A. at 104. In press Hardy the mens rea did not dy urged evidence admissible Hardy's pa- There is confusion below. some rea," of the of- "negate “an ... mens element mo- pers court. In his first before the district charged.” re- Id. at which he is fense with tion, "bearing testimony Hardy proffered the what clear to us printed at 102. It is times, in J.A. Hardy, at the relevant the issue whether Hardy in- to draw between intended distinction state, including intelligence, consis- had a mental " rea troducing "negate ... mens evidence to charged, required tent with and offense "negate introducing intent." it to defendant's elements, act(s), and conduct overt well as the 2, reprinted Nevertheless, Expert alleged." Hardy unequivocally Motion at consis- First added). (emphasis admit- The district should be tently II J.A. at 88 that the evidence asserted motions; testimony to introduce to mens rea in took this as motion ted as both relevant motion, subsequent in these understood his motions intent. In district court on the issue of the terms, motion, addressing of the intent fully the merits Hardy of his denied this characterization Thus, clarity spite lack of argument. of some "disavow[ing]” "want[ed] he introduce been issue have papers, the merits of this in his testimony negate intent.” opinion defendant’s fully preserved. Opinion at Trial to Introduce Notice of Intention specific tailing history tion is admissible when intent the defendant’s mental health charged if negate, might tendency negate crime is “it is relevant to which have establish, intent.”). specific prosecution’s proof mental condition on the issue of that is an element of the crime.” does not contend otherwise. Insanity In the Defense Reform Act of potentially If evidence is admissible (1988 1984, 17, §§ seq. 18 4241 et & U.S.C. intent, specific as relevant to it remains for IV1992), Supp. Congress established the test the district court to “determine whether the insanity provided an defense and further testimony grounded is in sufficient scientific disease or defect does not “[m]ental courtroom, support to warrant use in the a otherwise constitute defense.” 18 U.S.C. jury reaching whether it would aid the 17(a) (1988). time, Congress § At the same Brawner, decision on the ultimate issues.” 704(b) amended Federal Rule of Evidence 471 F.2d at 1002. This determination is re provide viewed for of abuse discretion. United expert testifying respect witness [n]o (7th Nelson, 254, States v. 5 F.3d 256 Cir. to the mental state or condition of a defen- 1993); Cameron, 907 F.2d at 1061. may opin- dant in a criminal case state an ion or inference as to whether the defen- us, Based on the record before we think dant did or did not have the mental state possibility there is a real that the evidence constituting or condition an element of the proffered properly would be admitted. As charged crime or a defense thereto. Such above, charged conspiracy we concluded ultimate issues are matters for the trier of specific supra part is intent crime. See fact alone. According III. to the district court’s own instructions, jury Several courts have held that the admissi Hardy guilty could find bility of mental condition evidence survives if it concluded that he “came to a mutual Insanity the enactment of the understanding co-conspirators] Defense Re his [with (a) form accomplish Act of 1984 where the evidence is purpose an unlawful or a lawful means,” J.A., admitted not as an purpose by affirmative defense to unlawful XIV 61-62, responsibility excuse the defendant from Tr. at and that “with an under 3/30/90 acts, negate specific standing his but to intent when of the unlawful of character itself, charged that is an element of conspiracy, knowingly act encourage[d], [he] ad Cameron, 1051, see United States v. 907 F.2d furthering purpose vise[d] or assisted] (11th Cir.1990); 1060 conspiracy,” United States v. Poh Hardy’s id. The fact of lot, (3d 889, Cir.1987); 827 F.2d 906 might United “effective” mental retardation well Twine, (9th 676, States v. jury 679 Cir. have assisted the to determine whether (b) 1988), expert testimony Hardy limits conspiratorial his entertained this under “‘diagnoses, upon to his standing purpose. the facts which Penry Ly Cf. based, diagnoses 302, naugh, 322, 2934, those are and the charac 492 U.S. 109 S.Ct. (1989) (mental any 2949, teristics of mental diseases or defect the 106 L.Ed.2d 256 retar experts possessed believe the defendant question dur dation is “relevant to the of whether ” period,’ staying the relevant time clear capable acting [the was defendant] ‘delib ”) (dictum). “‘directly indirectly opining erately’ on the particular, the evi intent,’” specific might whether, [ultimate] issue of help dence to assess Gold, F.Supp. States v. degree, 1131 or to what it requisite could infer the (D.D.C.1987) (quoting specific United States v. Hardy’s Fris intent from commission of bee, F.Supp. (N.D.Cal.1985)); above, charged acts. As detailed Abrahamson, Haas v. strongest implicating Hardy evidence cf. (7th Cir.1990) (Rule 704(b) psy- conspiracy was that he in delivering assisted “excluded ehiatric/psychological testimony opinion bags containing on drugs from Street to Bates question of whether a defendant had the away another house six or seven blocks capacity requisite to form the intent consti several occasions. While these acts would tuting charged normally support element offense an inference that he had allowing expert testimony while specific object relevant de- intent to further the Second, argues that government retardation alleged mental his conspiracy, Hardy suffi- does not proffered inference. evidence viability of this limit could well Hardy’s mind or state of ciently focus on conspiracy is charged if the Conceding that the offense because at the capabilities time crime, “a defendant specific intent explain childhood to events points it attempt in an evidence relevant submit courts Several Hardy’s effective retardation. Brief at element,” Government’s negate this evidence to “the use of suggested that have argues nevertheless capacity lacks the show that defendant excluded properly the evidence while “the inappropriate, is rea” form mens outset, At the for three reasons. this case to show disease of mental use of evidence is arguments each these note that we actually mens rea” lacked that a defendant the district court’s the exercise directed to appro- committed is the crime was the time evi capacity excluding mental discretion 905; Pohlot, also F.2d at see 827 priate. course, discretion, was never of dence. That analysis of Haas, Upon F.2d at 397. 910 the here; it concluded once exercised however, cases, general no bar we find these because barred categorically evidence was general “lack of of a defendant’s to evidence only “gener required charged the condition, so history of his or the capacity” on to went intent,” never district court al the keyed to adequately is that evidence long as testimony ground is the whether “determine mens he entertained the the of whether issue to support warrant scientific ed sufficient of the proof crime. required rea courtroom, it and whether would use in the the a decision on jury reaching aid the ap- cases underlying these concern The Brawner, F.2d at 1002. ultimate issues.” the barrier between preserve to pears to be gov objections raised the none of the As respon- testimony “diminished mens rea testimony, the use of precludes the ernment typically allow testimony. sibility” Courts so court to the district the issue we remand defen- directly whether the testimony about to exercise may opportunity have the that it at the requisite intent dant entertained be our discussion in line with its discretion instance, testimony, for time crime— low. delusionally genuinely but defendant acting in when self-defense he was believed psy- argues that the first government reluctant, how- They are he someone. killed “little, any, probative if had chologist’s report testimony about ever, general allow more to a mental value,” it does not describe because it is condition where mental the defendant’s Hardy enough prevent to severe condition the intent elements from divorced forming in- criminal being capable of usage that into wider “slide[s] crime and are Brief at We tent. Government’s more defense jury opens up theories present- however, Hardy has persuaded, Pohlot, F.2d at justification.” akin to incapacity severe of mental evidence ed slippage, potential this examples of 905. As highly might be relevant enough it well People cases such as court noted Pohlot entertain, and whether capacity to Hardy’s 795, Cal.Rptr. Wolff, 61 Cal.2d entertain, intent specific fact he did (1964), “had the defendant in which P.2d 959 conspiracy. purposes of further a series carefully planned and executed all, not read is, who can a man “This after the court neverthe- rapes,” but murders and ‘himself,’ can- who as ‘animal’ or words such requisite lacked that he less concluded accurately report direction not his degree murder because first intent for ther- use of a general rising, or the sun’s re- him from abnormality prevented “mental mometer, not define words who could ” ” enormity the evil.’ alizing ‘the Although ‘enormous,’ ‘fabric,’ or ‘conceal.’ not- court way,” the Pohlot “In this at 905. make a final deter- can court the district that did illness ed, made mental “the the evidence probity mination about ele- any particular directly not correlate dire voir inquiry and after further reducing the ground rea a mens enough ment of Hardy has come forward expert, Id. severity of an offense.” inquiry. warrant evidence to share We the concern that evidence of trict court. In the event that the district general capacity per- mental not be used to evidence, court chooses to admit the it can jury responsi- suade a that a defendant is not testimony closely ensure that the is tailored purposeful ble for his deliberate and activi- Gold, question to the at issue. See ty usage exceeds the bounds of mens F.Supp. —this at 1131. rea evidence. The distinction between evi- Finally, government argues general “ability dence of a defendant’s is, fact, proffered evidence of the “dimin- form a certain intent” and evidence of his responsibility”, ished “By asserting variant. crime, however, intent at the time of the is intelligence,” a lack of particularly helpful; types Both of evi- claims, “Hardy really seeks to be excused may dence jury’s be relevant to the consider- activity. from his criminal Although Hardy government proved ation of whether the brightest not have been the of the Ed- requisite the defendant entertained in- crew, mond intelligence his low did not make Thus, proper tent. “[t]he focus [is] activity any purposeful.” less Govern- proffered link relationship between the ment’s Brief at 135. As specific we have indicated psychiatric evidence offered and the above, well, fact, Cameron, might the evidence be mens rea at issue in the case.” helpful Indeed, to a in determining 907 F.2d at 1067 n. 31. even the whether Circuit, Hardy’s “purposeful” Seventh which action was particularly has been in the sense vigilant in rejecting “testimony evincing ques- specific on the a conspire, intent to and tion of capacity whether a defendant has the potential probity precisely is ques- intent,” requisite to form the sug- has not tion to which the district court must address gested general capacity that this bar on testi- Hardy’s itself. capacity While mental does mony prevents the admission of evidence not him culpability “excuse” for his history about development and of a de- activity possessing distributing drugs— and — fendant’s mental contrary, condition. To the may it well be gov- relevant to whether the it expert has concluded that “relevant testi- proved ernment an element of the mony detailing the defendant’s mental health charge in committing Hardy such acts —that history might tendency which a have to ne- specific entertained the intent to further the gate prosecution’s proof on the issue of purposes thus to —and Haas, 397; intent” is admissible. 910 F.2d at Hardy whether conspired possess and dis- Nelson, accord 5 F.3d at 256. drugs. tribute sum, concerns about whether the We Hardy’s therefore remand negate specific evidence is relevant to intent case to the district court so that the district opposed as “presenting] dangerously a may court proffered determine whether the confusing theory of defense more akin to “grounded evidence is justification sufficient scientific and excuse” are best addressed support courtroom, to warrant use through the district court’s assessment of the whether it reliability would aid the probity reaching a the evidence and its Brawner, decision on the evidence, “careful ultimate issues.” administration” of that Brawner, 1002. If the F.2d at district court con rather than through cludes that categorical properly a the evidence is bar on evidence admissi re ble, garding general it capacity. Hardy’s mental must vacate In this conviction and case, sufficiently grant we think it him likely a new trial. If that evi it determines that Hardy’s general dence about capacity the initial mental exclusion of the evidence was cor history would be relevant to his actual rect because the evidence is irrelevant or state of committing charged unreliable, mind in Hardy’s acts then conviction to warrant further consideration the dis- stand.13 Hardy's

13. None of untimely additional Hardy's claims has merit. motion consisted of school rec- rejecting The untimely ords, district court did not err in simply amplify which the conclusions al- only motion—filed in the fourth week of ready Hardy psychologist’s before in the letter. rely insanity only trial —to on the defense. The The district court did not abuse its discretion in proffered new evidence to show cause for the prejudiced.” has been defendant to which the Edmond B. RacheUe Tarantino, review F.2d at We wit Edmond’s RacheUe One of for mis denial of motion district court’s Radden, on direct testified nesses, Juanita Id. discretion. abuse trial stayed at Edmond’s she had examination prose impropriety granting the Even off had burglar gone alarm that a home prejudicial that it not so question, was cutor’s cross-examination, On was there. she while its discre the court abused must we find had if Edmond Radden prosecutor asked for a mistrial. denying the motion tion they put the reason her “that ever told single on a was based motion Edmond’s they were in is system because alarm nega been answered had question that $200,000 cash?” approximately robbed by an immedi tive, cabined had been it J.A., at 240. Counsel Tr. XI 3/23/90 Moreover, as noted jury instruction. ate being di objected. immediately On Edmond support above, evidence ample there to answer by the district court rected observed We have conviction. Edmond’s “no.” Id. Ed said question, the witness improper question even every that “[n]ot mis for a thereupon moved counsel mond’s a trial.” enough to void is answer question was ground trial on (D.C.Cir. Smith, not in evidence. fact on a premised Smith, 1989). of a Here, denial “the prosecutor ordered effectively court approach an abuse not even ... does mistrial produce able to he again unless was it ask Id. discretion.” []of in fact had home that Edmond’s evidence also $200,000burglary. The court suffered Childress C. Willie La a mistrial. motion for Edmond’s denied motion, ter, renewed counsel Edmond’s Act Justice Criminal 1. Denial funds court it. The again denied and the trial, cooperating wit- Group During II however, that counsel’s jury, the reminded Virginia that in a Minor testified ness James evidence; and it constitute questions did not a 50-kilo- he August 1988 received in hotel disre they were to that jurors the instructed man older from an delivery of cocaine gram a regarding question prosecutor’s gard the other wearing glasses—a from California manwho burglary. appellant Childress. suggested was evidence ny, Childress thistestimo- rebut important factor single most “[T]he To Justice Criminal courtfor district ques the improper an whether [determining in asked Finally, (“CJA”) the call funds Act extent mistrial] is the to a should result tion viola-tionof act not courtdid did not constitute concluding records the that district departure rejectingHardy's request downward the lawin untimely motion. a for an for cause (1989), § which 5K2.13 under provides U.S.S.G. aof court's admission district did the Nor committed a the that "[i]f defendant by co-defen- hearsay made statement redacted suffering significantly offensewhile non-violent Hardy indirectly implicated Morgan that dant capacity sentence lower ... reduced may a mental only reference Hardy’s The severance. mandate to theextent reflect to be redacted, warranted fully Hardy was in the statement to capacity to contrib- reducedmental which uted the statement to consider was instructed the sions not offense.”Deci- commission the the to “all references Morgan against alone. Where generally depart reviewable downwards to "are are statement in a codefendant's defendant the imposedin were extentthat to gen- the pronouns or other with indefinite replaced imposed result were law or of application terms, violat- violation Clause is not Confrontation the eral Guidelines.” Sentenc incorrectof if, statement’s admission by redacted ed 61, Ortez, 63 v. States F.2d evidence, together the other United viewed when Hardy’s (D.C.Cir.1990). argument district asso- inevitable create an does not the statement violation was court’sdetermination defendant, limiting proper and a with the ciation afford not him courtdid district becausethe law Washing- v. United States given.” is instruction process “reduced mental assessingwhether due (D.C.Cir.1991). ton, his 1406-07 952 F.2d capacity commission contributed case, the redacted jury's to connection this light entirely flat offense” falls complex require Hardy would to statement unlikely Hardy court to asked the never factthat falls far negotiation evidence that even sentencing testify permit witnesses to call him district The association.” of “inevitable short to hearing suggested had additional information was statement the redacted he court’s admission present. present. error. not Wong, Dr. optometrist. California Nichols, Dr. United v. States F.3d Wong (10th evidently would Cir.1994); have testified that Castro, United States v. when he examined (5th Childress’s vision in 417, 421 Cir.1994); history his medical card previ- did not list a Becerra, (9th Cir.1993). prescription him; ous might indicate The district court here did abuse its that he prescription did not wear glasses at by discretion determining Wong’s that Dr. 50-kilogram the time of the Ap- transaction. services sufficiently necessary were not pellant told Wong’s that Dr. fee for justify spending defense to thousands of testimony travel and per time be would $200 calling dollars and trial to a halt. entire hour, to responded which the court that CJA Given that Childress would introduce his regulations required special approval of the driver’s license and his testimony, sister’s judge chief of the district expert court for incremental Wong’s value of Dr. testimony $1,000. fees over Although the court ex- slight: The blank prescription on the pressed skepticism about the need for such record could not establish conclusively that testimony, it agreed nevertheless to consider Childress had never worn prescription glass the motion. say es and could nothing about whether he day The next Childress withdrew his re ever wore raoit-prescription glasses, which quest. suggested His counsel that he would would entirely have been consistent with Mi instead look optometrist local who could testimony nor’s government’s and the theory testify about prescription Childress’s record. was the Childress courier he had met. days Five later and two hours before he was present however, his case to jury, Furthermore, we do not believe that request Childress renewed for CJA funds prejudiced Childress was as a result of the Wong for Dr. because he had been unable to denial of the CJA funds. argues Childress optometrist find a local testify who could he was the denial of funds to forced person rather telephone. than The court introduce his driver’s license to show that he request, denied the finding it would intoler impairment. had no visual prosecution ably delay the proceedings; it also denied then used license writing as a exemplar Childress’s motion for a post- mistrial and prove signed Childress receipts conviction trial, motion for a new concluding for the hotel room where 50-kilogram prejudiced he was not by the lack of thus, deal place; took claims, Childress he Childress, funds for Wong. Dr. F.Supp. 746 was forced to provide crucial evidence for the trial, at 1141-42. At Childress did not intro prosecution thereby and was prejudiced. duce the prescription evidence; record into But logical, there was no one-to-one corre instead, (and his sister testified received CJA spondence between the denial of funds for funds testimony) for her that he wore neither Wong Dr. and Childress’s decision to intro prescription glasses sunglasses nor in August duce the if Wong license. Even had been 1988; and he license, introduced his driver’s able to testify, might Childress well have which listed no vision restrictions. introduced the license to bolster his claim that he did glasses; not wear again argues Childress as we that have he said, wrongly was Wong’s of Dr. testimony denied the CJA value funds for Dr. about Wong prescription prejudiced and that he was record would have been slight. denial. And reject arguments. We these had it A occurred dis to Childress that trict deciding court supply license whether would authorize crucial evidence to CJA experts prosecution, funds for medical might he must deter well have chosen it, mine “whether the service not to necessary is if Wong to the introduce even Dr. had preparation presentation adequate of an testified. To the extent that Childress was defense,” Chavis, bind, moreover, United States v. in a 476 largely it was of his own (D.C.Cir.1973) making. (emphasis origi in He withdrew the motion for funds nal); Anderson, see also United States v. voluntarily, witness, failed to find a local F.3d at 343. review We this determination then request reinstated his two hours before necessity of for abuse of discretion. See his ease was set start. will We not over- argues that his offense” of his Childress “instant basis turn conviction Childress’s for he was the conduct which is deemed to choices. tactical conspira- participated in the have Edmond is, cy—that 50-kilogram his cocaine sale in ¡2. history category increase Criminal August He his a may imposing sentence court consider D. Columbus Daniels departing applicable the otherwise 1. may Counsel choice guideline range. Such information of to, include, information but is not limited Appellant Daniels asks his Columbus concerning: ... conspiracy convictions be set murder and (d) right to he was denied his his pending was aside because the defendant whether of two trials. trial, of choice in each his sentencing, appeal on another counsel States, 486 U.S. of instant See Wheat v. charge at the time offense.14 4A1.3(d) for Missouri con- court would account § of allows The current version only point history sentencing by adding "whether the court to consider a to criminal duct score, sentencing pending on up trial or bumping defendant was an by defendant entire not charge,” pending however, he rule, another appeal. not whether was only category. added in This was Guidelines; did to the it the 1991 revisions governed 1989 version Chil- exist 4A1.2(a)(4) § 15. Childress notes that under sentencing. dress’s Guidelines, a sentenc- the current version of 1692, 1697, 108 S.Ct. spiracy 100 L.Ed.2d large and the number of defendants (1988) (Sixth right Amendment to counsel the case. He concluded that no one could right includes “the to select repre- fully and be anticipate problems might what develop by preferred sented attorney-”). one’s as presented its ease and as Supreme clear, The Court has made it how- attorneys the defense for the 27 other defen- ever, right proceeded counsel choice is dants with their cross-examina- qualified important respects. in several For Accordingly, tions. he decided that he could example, may rep- “a defendant not insist on not find that a conflict of interest would be attorney resentation unlikely he cannot afford to arise. He also concluded that or who other repre- for reasons although declines to the two defendants had voluntarily sent the defendant.” Similarly, Id. the waived rights counsel, their to conflict-free “presumption in favor of [a fully and, defendant’s] these waivers were not informed counsel choice ... consequence, be overcome not a were ineffectual. He there- only by a attorney’s] demonstration of [the fore recommended that both Manee and actual [of conflict but showing Mundy interest] disqualified be from the ease. The potential of a serious for conflict.” Id. at district adopted that recommendation 164, 108 S.Ct. at 1700. subsequently appointed Arthur Levin to represent Daniels. By way background, 8, 1988, August charged Daniels The court with later divided was murder in the counts of the Dis- trict of indictment into Superior groups, Columbia three Court each to and re- be the subject separate tained R. of a Mundy result, Kenneth represent trial. As a him. later, Nine counts under months which Daniels was Sutton was indicted in indicted were assigned I, Group United States District Court for while Daniels’ the Dis- counts (which trict of Columbia for the included a charge same firearms violation murder and addition membership alleged in an drug conspiracy conspira- and murder cy. charges) The charge murder were divided joined D.C. between then the other two. represented with Levin charges. the federal Daniels in Group II When tentative his date had trial Group been set for trial his III these murder charges, Mundy and firearms violation moved trial. continuance and, 22, 1989, on June sent the district court above, As mentioned argues Daniels these, two letters. In the first of he advised the court improperly denied him his counsel the court prepaid that his vacation conflicted of choice in alternative, both trials. In the date, the proposed trial that he had that, he contends even if the court did not paid only been portion of his fee for his err it when first Mundy, removed it commit- services, requested and that his fee had been ted reversible error when it denied his subse- set with a homicide trial mind where- quent request to represented be by Mundy in as he now found himself “stuck” with a con- separate murder trial. spiracy vastly trial that was complicat- more ed than originally the one he had undertak- a. trial letter, en. Mundy’s second which was writ- Although challenges Daniels ten on partner, Manee, behalf Robert court’s decision disqualify Mundy from informed the court that Manee had not re- representing trial, him the conspiracy he ceived his fee for representing a co-defen- recognizes that reject its decision to his waiv dant, Emanuel Sutton. right er of the to conflict-free counsel is The responded district court with an order reviewed for an abuse of discretion. See which, among things, Wheat, other Magis- directed 164, 486 U.S. at S.Ct. 1700. Judge Attridge trate to determine whether Supreme Because the Court has made it the participation in the trial of Mundy both clear that the presumption in favor of a posed potential Manee a conflict of inter- defendant’s “may counsel of choice be over est and whether one both of them should come ... showing a potential of a serious remain in the case. magistrate conflict,” id., The judge for and because a conflict be took complex note of the nature of the con- tween Sutton and Daniels could have devel- only before that trial three govern- set and weeks of the during the evolution oped request to place, Daniels’ be case, the dis- was to take find that we ment’s by Mundy a represented when constituted “last- its discretion not abuse court did trict and, therefore, properly request was Mundy. minute” disqualified it untimely. declared We have that denied as trial The murder b. weighed right must be to counsel defendant’s orderly in public’s interest the “against the in a conspiracy trial ended the After justice.” United States v. Daniels, administration informed the Levin for conviction (D.C.Cir.1987). Rettaliata, 361, F.2d proposed prior the date three weeks to court believe, however, government that Daniels wanted We trial that the murder for it that Group pro exaggerates III when asserts him the matters Mundy to defend in Daniels’ motion until the last minute that denied Daniels waited ceeding. The court Mundy’s unduly disrupted issue would have mat- ground that his motion on the already had His motion to represent Daniels district court. be to ters capacity argued response, by Mundy Levin made at the first represented In was decided. been po might have had a although Mundy hearing. The cases Group pre-trial III on trial, that in the all involved a government conflict relies tential which the impending present in the not the initial possibility period was of time between far shorter the district Unpersuaded, trial. the sched- murder counsel and request for substitute later, Dan A week See, the motion. e.g., denied States v. court United uled trial date. (D.C.Cir.1990) and the court argument, Poston, 90, reiterated his iels F.2d 96-97 rejected it. again (district discretion when court did not abuse day motion continuance it refused Rayful granted the court June On appointed at trial to allow new counsel before murder trial his motion to sever Edmond’s prepare to more request thor- defendant’s ruled that Ed- of Daniels and from that Richardson, 894 oughly); Daniels’ after trial would commence mond’s Cir.1990) (defendant (1st 492, 496-97 for murder alone Daniels was tried trial. for the first time counsel asked to substitute a license carrying pistol without trial). morning of on the charged on June was convicted if argues that even Daniels appeal, On 22, 1989, Mundy’s Finally, noting June initially it err when court did not district repre problems with cited other letters Mundy, it so when it refused disqualified did Daniels, argues government sentation ability represent Mundy’s to reconsider Mundy not indicate the record does murder trial. him repre willing and able have been would first contends response, government Group III murder trial. in his Daniels sent Group II of the after the conclusion even Mundy complained, in Indeed, only had trial, continued potential for conflict only him paid that Daniels had June the homi- Group III trial because in the exist for the defense portion of the fee set complex drug charge was related to cide later, Mundy after had charge, but murder how to discern conspiracy. are unable We ease, sought Daniels been removed in the of Daniels Mundy’s representation court-appointed counsel and obtained presented a seri- could Group III trial have indigent. Levin that he had become claim There were potential for conflict. ous (who appeal) Daniels represents also proceed- III Group defendants four willing Mundy to reenter the replies were involving Daniels the issues ings, communicated that this fact was case and murder case government’s The well-defined. hearing for a status the district sweeping required the kind not have would been lost. reporter’s notes have which con- necessary prove that was inquiry that Levin’s state Although we are confident charges. spiracy faith, gap in good was made ment reporter’s alternative, the loss record created argues, adequate basis for us notes leaves without new counsel Daniels moved that because what terms determining and on whether date had been Group a III trial after month Mundy note, finally, would have reentered the case if even the murder and May Having 1990. remand, concluded that serious firearms convictions are vacated on potential longer for a conflict of interest no conspiracy the concurrent sentence for the enough existed and that time remained be- conviction will be unaffected.

fore the scheduled trial date to accommodate request, Daniels’ we remand the matter to Sentencing 2. inquiry the district court for an into whether challenges also the district Daniels Mundy willing would have been and able to upward departure guideline court’s from the May reenter the case in range sentencing when him on the If, hearing, after a the district court conviction. quite We believe that the court Mundy concludes that would have reentered properly guideline range concluded that the the case on financial terms that Daniels could did not reflect the seriousness of Daniels’ met, have the district court must vacate light crime of his role as an enforcer and Mundy’s murder and firearms convictions. Moreover, conspiracy. executioner during pendency appeal death of this imposed by the two-level enhancement does not moot depriva this issue because the court falls well within the bounds of reason tion of his counsel of choice would entitle Goines, ableness. Cf. Daniels to a reversal of his conviction as a (7th Cir.1993) (affirming two- matter right. of constitutional See United upward departure part level based on Alvarez, States v. Panzardi 818 defendant’s incitement co-conspirators’ (1st Cir.1987) (“The right to choose one’s violence). acts of itself; deprivation counsel is an end in its harmless”). Mundy’s cannot be death does IX. CONCLUSION deprive power the district court of its grant Daniels the to which relief he would be reasons, For the aforementioned we re- entitled. Should the elect to mand the conviction of Robert retry charges, Daniels on these Daniels must Hardy and the weapons murder and convic- opportunity be afforded reasonable to re tions of pro- Columbus Daniels for further tain new counsel of choice with his own re ceedings, remaining and we affirm all convic- provided court-appointed sources and be addition, tions. we remand the cases of proves counsel if he unable to do so. appellants except all Morgan Ronald for re- sentencing.

If, remand, the district court con Mundy cludes that would not have reentered It is so ordered. the case on terms that Daniels could have met, we hold that Daniels was not denied WILLIAMS, STEPHEN F. Judge, Circuit counsel of choice and that his murder and dissenting part: firearms Although convictions must stand. I concur in all per sections of the curiam the Sixth Amendment affords Daniels the opinion except Part VIII.D.1. I agree While right represented by to be a retained attor majority with the that the district court ney justification absent a sufficient for re denying have abused its appel discretion moving attorney, he has no constitution lant Columbus representation by Daniels right appointed al counsel choice. See lawyer Mundy Kenneth Group III Wheat, 486 U.S. at 108 S.Ct. at 1697. trial, murder I would not remand the case for recognize We that the district court’s in- proceedings. further Mundy Because died quiry complicated immeasurably will be shortly argument case, after oral in this Mundy’s only death. We ask that the dis- way there is no Daniels could ever receive his trict court examine the available evidence to retrial, representation on a should one be determine whether and on what terms Mun- ordered. I appeal would therefore hold his dy would represented have Daniels in the moot. trial. murder We caution the court that Daniels Any should not be asked to give litigant bear the relief we must fit the producing burden of a deceased witness. We error that was made. Daniels claims

737 enjoyed fully has Mundy’s rep which the defendant erroneously denied that he was rights counsel. Amendment to core allege he had Sixth resentation; he does “[Wjhile represent- right to select and be waiting in the of choice paid counsel other attorney compre- is preferred ed one’s using, that he wings he was barred Amendment, the essen- alternative, hended the Sixth or that the sought such an ever guarantee an Amendment is to tial aim of the making other him from court forbade district (In criminal defen- advocate for each effective representation. paid arrangements that a defendant rather than to ensure dant deed, appointed coun that the court fact lawyer inexorably by the represented be will that no one involved suggests sel for Daniels States, v. prefers.” he Wheat United paid whom possibility of even considered ever 1692, 1697, 153, 159, 100 108 S.Ct. Dan 486 U.S. Mundy.) Nor does than counsel other (1988). actually L.Ed.2d 140 counsel he that the trial suggest iels v. incompetent. Strickland was received Cf. v. quarrel I with United have no 2052, Washington, 466 U.S. S.Ct. (1st Alvarez, F.2d 813 Cir. Panzardi (1984). for the The ideal relief L.Ed.2d 1987), Maj.Op. at 736 or Bland see California Dan would be to remand claimed one error Corrections, 20 F.3d ept. D Mundy as counsel. with for retrial iels’s case (9th Cir.1994), where which hold—in cases 1477-79 impossible. become This has available originally desired was the counsel deprivation solution, to conduct retrial —that majority’s a vacation er cannot be harmless retrial, way of counsel of choice in no fits this conviction showing prejudice on a retrial, only ror. there are two Insistence any error. On impossible require an almost would either representation. for Daniels’s possibilities actually between the counsel comparison First, may unable as he was be as Daniels alternative, itor serving hypothetical represent who find someone will to before remedy. effectively deny any appellate might would pay, so he what he could him for guidance no as to principle gives us In that But this counsel. appointed again receive That proceed in these circumstances: duplicate how to case, would be exact the retrial correcting error worth this there was an matters one in all relevant of the first proceed not tell us how hand, usual case now does other Daniels On the issue. is single logical correction unavail But when the arrange paid counsel. be able to from able. claimed he forbidden Daniels never Mundy, than

using paid counsel other sum, Mundy If were case. is a rare would be these circumstances retrial under follow available to alive and were still claimed an error responsive never retrial, I would through potential something completely dif- give Daniels Like- majority’s disposition. concur (by hypothesis) the trial what ferent from re- wise, appointed counsel Daniels if the erroneously denied. trial Mundy at his murder place ceived incompetent, I would reverse re- had been very slight value of this Against the nei- for retrial. As remand only marginally conviction and at best is lief—relief case, be I think it would better ther is the the error made —stand responsive to than to go uneorrected force let the error Morris v. requiring a new trial. See costs of trial, the burdens of another 1, 14-15, system to incur 103 S.Ct. Slappy, 461 U.S. (1983) (absent prospect of such windfall welcome as the prejudi- L.Ed.2d Accordingly, I believe Daniels. may be to right to Amendment violation of Sixth cial error is moot. claimed retrial Daniels’s consider counsel, court should costs remedy; spectacle of re- fashioning “[t]he about establish the truth peated trials to inevitably places bur- episode

single criminal witnesses, system in terms of

dens on memories, say nothing

records, fading resources”). costs judicial These misusing bearing in a situation

do not seem worth notes both arrest challenge one raises Childress place his conviction in Missouri took Drug A Enforce unique to his sentence. date; hence, argues, they this after he could at his sentenc Agency agent testified ment “pending ... not be at the time of the instant was Childress in November 1988 offense.” speeding for and that in Missouri stopped however, argument, neglects Childress’s to contain over driving was found van he was being he for the fact that was sentenced agent also kilograms cocaine. The of simply conspiracy, possession not largest was the second testified that in his of the cocaine involved 50- distribution history. DEA in inland seizure of cocaine delivery. kilogram Conspiracy ongoing is an by a Missouri was convicted Childress lasts, absent one’s affirmative offense but transportation June narcotics long enterprise, as as withdrawal from the yet for this of he not been sentenced had any co-conspirator to further com continues September 1990 by the time of his fense ends; does claim mon because he not he present case. sentencing conspiracy, affirmatively withdrew from the prepon court here found district criminally responsible—as is noted Childress criminal of evidence Childress’s derance part compatriots’ IV—for above all Sentencing history category under foreseeable conduct in furtherance those adequately ser did reflect the Guidelines not Thus, goals. Childress’s “instant offense” for Missouri; accord of his conduct in iousness 4A1.3(d) § lasted purposes of until Ed II category from I to ingly, it increased that operations, an enterprise mond ceased event § 4A1.3 under Guidelines. placed April the district court 1989. See contra- argues Childress that this increase Edmond, At F.Supp. at 203 n. 3. § explicit language That of 4A1.3. vened point, pending trial for his Childress was version of the Guidelines section Missouri, the district court actions (the in place for Childress’s sentenc- version properly those actions could consider under read, part, ing) as follows: 4A1.3(d). Furthermore, § because the court clearly factfinding err in its and the did History § Adequacy Criminal 4A1.S. departure under extent its reasonable Statement) (Policy Category stood,15 up then we the Guidelines If reliable information indicates criminal his hold increase Childress’s history category does not ade- criminal Faday tory category. States v. Cf. de- quately the seriousness of the reflect (D.C.Cir.1994). ini, 1241-42 ..., past fendant’s criminal conduct

Case Details

Case Name: United States v. Willie George Childress

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Sep 13, 1995

Citation: 58 F.3d 693

Docket Number: 90-3222, 90-3223 to 90-3230, and 93-3066 to 93-3073

Court Abbreviation: D.C. Cir.