United States v. Wilson, Ralph T.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 9, 1998 Decided November 20, 1998

No. 97-3076

United States of America,

Appellee

v.

Ralph T. Wilson,

Appellant

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Consolidated with

Nos. 97-3077 and 97-3129

Appeals from the United States District Court

for the District of Columbia

(No. 96cr00319-01)

(No. 96cr00319-02)

(No. 96cr00319-03)

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Reita Pendry, Assistant Federal Public Defender, argued

the cause for appellant Ralph T. Wilson. With her on the

briefs was A. J. Kramer, Federal Public Defender.

Thomas G. Corcoran, Jr., appointed by the court, argued

the cause and filed the briefs for appellant Louis Wilson.

Richard Seligman, appointed by the court, argued the

cause and filed the briefs for appellant Marcellus Judd.

All counsel for appellants were on the joint briefs.

Barbara J. Valliere, Assistant U.S. Attorney, argued the

cause for appellee. With her on the brief were Wilma A.

Lewis, U.S. Attorney, John R. Fisher, Thomas J. Tourish,

Jr., and Arthur G. Wyatt, Assistant U.S. Attorneys. Mary-

Patrice Brown, Assistant U.S. Attorney, entered an appear-

ance.

Before: Edwards, Chief Judge, Ginsburg and Rogers,

Circuit Judges.

Opinion for the Court filed by Circuit Judge Rogers.

Rogers, Circuit Judge: These appeals arise out of the

murder of a government witness scheduled to testify in the

trial of James Wilson, who was charged with robbing a

United States Post Office. The postal robbery charge was

based on information supplied by the witness, who had worn a

wire while he and James were at the Lorton Reformatory.

Following James's arraignment on January 17, 1996, the

government turned over to James's attorney a copy of the

Lorton tape and transcript on the condition that the attorney

not give copies of this material to anyone, including James,

without the government's prior permission. The tape, as well

as a January 25 letter from the prosecutor to James's attor-

ney, revealed that the government's key witness was named

Leroy Copeland. Shortly before the March 26 trial date,

James's attorney met with James's wife and brother Ralph to

review the evidence against James, informing them of Cope-

land's role and playing and reading portions of the tape and

transcript to them. That evening the Wilson brothers--

Ralph and Louis--began looking for Copeland. On March 25,

Kirk Thomas, whom the Wilson brothers had enlisted to find

Copeland, spotted Copeland and informed Marcellus Judd

that Copeland was in the area. That evening, Louis mur-

dered Copeland by shooting him repeatedly. The jury found

James's brothers Ralph and Louis, as well as Marcellus Judd,

guilty of conspiracy to kill a witness (18 U.S.C. s 371), killing

a witness with intent to prevent him from testifying (id.

s 1512(a)(1)(A)), retaliating against a witness (id.

s 1513(a)(1)(B) & (2)), and first degree murder while armed

(D.C. Code ss 22-2401, -3202). Louis was also convicted of

two counts of using a firearm during and in relation to a

crime of violence (18 U.S.C. s 924(c)) and possession of a

firearm during a crime of violence (D.C. Code s 22-3204(b)).

On appeal, appellants contend that the district court erred

in impaneling an anonymous jury, denying severances, admit-

ting the Lorton tape recording, excluding evidence that other

persons might have murdered Copeland, instructing the jury

on credibility and conspiracy, and providing copies of the trial

transcript in response to a note from the jury. Judd further

contends that there was insufficient evidence to convict him of

conspiracy and of aiding and abetting. Louis contends that

one of his consecutive s 924(c) convictions must be vacated

and that the District of Columbia and federal charges merge,

as do the s 1512 and s 1513 (killing and retaliation) charges.

Concluding that appellants' contentions are mostly unpersua-

sive, we affirm their convictions except for Judd's convictions,

which we reverse, and one of Louis Wilson's s 924(c) convic-

tions, which we vacate.

I.

In contending that the district court erred in denying his

motion for judgment of acquittal, Judd maintains that the

evidence showed only that "Judd made statements during

casual conversation ... while discussing the shooting." Our

review is de novo, considering the evidence in the light most

favorable to the government and determining whether any

rational trier of fact could find all of the essential elements of

the crime beyond a reasonable doubt. See United States v.

Harrington, 108 F.3d 1460, 1464 (D.C. Cir. 1997). As this

court has observed, however,

[t]his review, although deferential, is not servile: "We do

not ... fulfill our duty through rote incantation of these

principles followed by summary affirmance. We must

ensure that the evidence adduced at trial is sufficient to

support a verdict as a matter of law. A jury is entitled

to draw a vast range of reasonable inferences from

evidence, but may not base a verdict on mere specula-

tion."

United States v. Harrison, 103 F.3d 986, 991 (D.C. Cir. 1997)

(quoting United States v. Long, 905 F.2d 1572, 1576 (D.C. Cir.

1990) (Thomas, J.)). We therefore cannot sustain a jury's

verdict when "the government's web of inference is too weak

to meet the legal standard of sufficiency." United States v.

Teffera, 985 F.2d 1082, 1086 (D.C. Cir. 1993).

The validity of Judd's convictions turns on whether the

government presented sufficient evidence to show that Judd

was part of the conspiracy and aided and abetted the murder

of Leroy Copeland. The government offered evidence that

on two occasions on the day of the shooting Judd informed

the Wilson brothers that Copeland was in the area: first,

when the Wilson brothers showed up in the area within ten

minutes after Judd was seen in the same area as Copeland,1

and second, when Kirk Thomas informed Judd that Copeland

was in the area and Copeland was subsequently killed.2 The

government also presented evidence that Judd returned to

the area where Copeland was shot. Finally, the government

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1 Copeland did not arrive in the District of Columbia until March

24. Around noon on March 25, Steve Hamilton saw Copeland at

5th and O Streets, N.W., looking for heroin. While Hamilton was

purchasing heroin, he noticed Judd on the street. Hamilton then

entered an abandoned house to use the heroin. About ten minutes

later he emerged and saw the Wilson brothers, in their car with

guns, looking for Copeland. Copeland had already left the scene.

2 Earlier in the evening, Thomas, who was with Glenn Young,

encountered Copeland at the Bundy School playground. Thomas

later saw Judd by his car and informed him that Copeland had been

spotted in the area. According to Thomas, this last exchange

occurred shortly before the shooting, although he could not say how

long. Copeland's friend Kevin Eddings saw the shooter, whom he

later identified as Louis Wilson, as did Tim Carrington.

presented evidence that after the murder Judd told two

people (Glenn Young and Steve Hamilton) that he had been

the person who had informed the Wilson brothers that Cope-

land was in the area.

To prove that Judd was a conspirator, the government has

the burden to show that he "entered into an agreement ... to

commit a specific offense," that he "knowingly participated in

the conspiracy with the intent to commit the offense," and

that "at least one overt act was committed in furtherance of

the conspiracy." United States v. Gatling, 96 F.3d 1511, 1518

(D.C. Cir. 1996); see also United States v. Wynn, 61 F.3d 921,

928-29 (D.C. Cir. 1995). The existence of an agreement is

the sine qua non of the statutory crime of conspiracy. See

United States v. Treadwell, 760 F.2d 327, 336 (D.C. Cir.

1985). Thus, the government had to offer evidence that Judd

agreed to join the Wilson brothers' effort to murder Cope-

land. Viewing the evidence most favorably to the govern-

ment, as we must, see Gatling, 96 F.3d at 1517, the evidence

shows only that Judd knew that the Wilson brothers were

looking for Copeland, that he learned from Thomas that

Copeland had been seen in the area, that he twice informed

the Wilson brothers of that fact, and that he was in the same

area as Copeland when Copeland was killed.

To convict, the jury would need to infer not only that Judd

knew that the Wilson brothers planned to murder Copeland,

but also that with knowledge of their plan and objectives, he

agreed to join them. Given that several witnesses were in a

position to offer testimony about the nature of Judd's involve-

ment with the Wilson brothers' effort, the absence of such

evidence is telling. While there was evidence that the Wilson

brothers enlisted Thomas in an effort to locate and identify

Copeland, informing Thomas of the reasons for their search,

and that Thomas told Judd that another man (Young) had

seen Copeland in the area, neither the Wilson brothers nor

Thomas nor anyone else testified that Judd was told to inform

the Wilson brothers, much less that the Wilson brothers and

Judd were part of a joint effort to kill Copeland. That Judd

twice informed the Wilson brothers of Copeland's presence

shows, at best, only general knowledge of a planned crime,

which is insufficient to prove conspiracy. See Teffera, 985

F.2d at 1087.

The sufficiency of the evidence of aiding and abetting

presents, perhaps, a closer question. Aiding and abetting

requires the government to prove: "(1) the specific intent to

facilitate the commission of a crime by another; (2) guilty

knowledge (3) that the other was committing an offense; and

(4) assisting or participating in the commission of the of-

fense." United States v. Gaviria, 116 F.3d 1498, 1535 (D.C.

Cir. 1997). The elements of aiding and abetting may overlap

to some extent with, but still differ from, those of conspiracy.

See United States v. Beckham, 968 F.2d 47, 51 (D.C. Cir.

1992). In any event, the government still fails to meet its

burden. To prove aiding and abetting the government must

show that Judd shared some intent with the Wilson brothers

and took some affirmative action to assist them in carrying

out their plan to kill Copeland. See Gaviria, 116 F.3d at

1535. Although the intent of the aider and abettor need not

be identical to that of the principal, see United States v.

Walker, 99 F.3d 439, 442 (D.C. Cir. 1996), the government

still was required to show that Judd had sufficient knowledge

and participation to allow a reasonable juror to infer that he

"knowingly and willfully participated in the offense in a

manner that indicated he intended to make it succeed."

Teffera, 985 F.2d at 1086 (quoting United States v. Raper, 676

F.2d 841, 849 (D.C. Cir. 1982)).

In other words, the government must show that Judd

intended to bring about Copeland's murder (or to retaliate

against Copeland or to prevent him from testifying) and that

he knew why and what the Wilson brothers intended to do to

Copeland. Here, there was no evidence that Judd knew of

the Wilson brothers' criminal enterprise when he alerted

them that Copeland was in the area. See Teffera, 985 F.2d at

1086. Again, while several of the government's witnesses

were in a position to identify Judd as having such knowledge,

none did. Nor was there evidence that Judd had an interest

in seeing the Wilson brothers succeed. See id. at 1087. The

evidence shows only that Judd told the Wilson brothers that

Copeland was in the area. Such conduct is susceptible, as in

Teffera, 985 F.2d at 1086, of too many plausible innocent

explanations: Judd could simply be a gossip, mischievous, or

hoping to land in the Wilson brothers' good graces. Judd's

knowledge that the Wilson brothers were looking for Cope-

land is simply not evidence that Judd knew that the Wilson

brothers were intending to kill Copeland and that Judd had

decided to assist them in that enterprise. Contrary to the

government's position, the evidence did not show that after

informing the Wilson brothers on March 25 that Copeland

was in the area Judd sought out Copeland in order to be in a

position to identify him for the Wilson brothers when they

arrived on the scene. Instead, Copeland approached Judd,

who was standing near his car across the street, presumably

seeking a ride. Moreover, only the government's brief, but

no witness, characterized Judd's post-murder statements as

boasting, and there was evidence to suggest that Judd, like

others, did not know the shooting was going to occur.

While the government is not required to negate all possible

innocent explanations of a defendant's behavior, see id. at

1088, the alternative explanations available for Judd's conduct

provide an equally plausible if not more plausible account

than the government's theory, and the government cannot

prevail on the basis of jury speculation, see Long, 905 F.2d at

1576, cited in Teffera, 985 F.2d at 1088. Had anyone else in

the neighborhood told the Wilson brothers that Copeland was

in the area, the government's theory of Judd's guilt would

apply to them as well. Indeed, a government witness (Steve

Hamilton) indicated that he also knew what Judd knew,

namely that people were looking for Copeland. Thus, the

evidence put Hamilton, as well as several others, including

Thomas, Young, and Carrington, in the same position as Judd

with regard to knowledge. Hence, the government's theory

of Judd's guilt casts too broad a net and quite simply the

"web of inference is too weak." Teffera, 985 F.2d at 1086.

As is true with the evidence of conspiracy, there was no

evidence that Judd aided and abetted the Wilson brothers in

murdering Copeland.

For these reasons we hold that there was insufficient

evidence to convict Judd of conspiracy and aiding and abet-

ting.

II.

Appellants' contentions that the district court erred in

denying their motions for severance are unpersuasive.3

Marcellus Judd, a codefendant, made two post-murder

statements that were admitted into evidence. Glenn Young

testified that Judd told him that he, Judd, went to the Wilson

brothers' home on the evening of Copeland's death and told

Louis that Copeland was in the area. Judd repeated his

statement to Steve Hamilton, who advised him to keep this

information to himself. The Wilson brothers maintain that

Judd's post-murder statements were hearsay and that admis-

sion of the statements violated their rights under the Con-

frontation Clause; thus severance of their trials from Judd's

was required. This court has generally favored joint trials,

see United States v. Manner, 887 F.2d 317, 324 (D.C. Cir.

1989), and reviews the denial of a severance for an abuse of

discretion, see United States v. Brown, 16 F.3d 423, 432 (D.C.

Cir. 1994). While Confrontation Clause challenges are re-

viewed de novo, the district court's findings of trustworthi-

ness are reviewed for clear error. See United States v.

Workman, 860 F.2d 140, 144 (4th Cir. 1988). We hold that

the district court did not err in determining that the state-

ments were against Judd's penal interest and sufficiently

reliable to be admitted in a joint trial.

A statement is against interest if "at the time of its making

[it is] ... so far tended to subject the declarant to civil or

criminal liability ... that a reasonable person in the declar-

ant's position would not have made the statement unless

believing it to be true." Fed. R. Evid. 804(b)(3). Moreover,

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3 For ease of reference we continue to refer to "appellants," even

though our disposition of Judd's sufficiency contentions means that

we need not, and we do not, address his other contentions. Our

reference from this point on to "appellants" is confined to Ralph

and Louis, to whom we also refer as "the Wilson brothers."

as the Supreme Court made clear in Williamson v. United

States, 512 U.S. 594, 603 (1994), "[e]ven statements that are

on their face neutral may actually be against the declarant's

interest." Judd's statements that he had informed the Wil-

son brothers that Copeland was in the area are, set alone,

hardly incriminating. But their timing is key, occurring the

day after the murder to one man who had witnessed the

murder and to another man who knew Copeland. As such

the statements were potentially incriminating had there been

evidence that Judd was part of the conspiracy or an aider and

abettor to the Wilson brothers. See id. at 603.4 Indeed, one

of the persons to whom he made the statement advised Judd

to keep the information to himself, suggesting that it was

against Judd's interest. Given the evidence that Young and

Thomas were acquaintances if not friends of Judd, the cir-

cumstances indicate that his statements were reliable. See

United States v. Matthews, 20 F.3d 538, 546 (2d Cir. 1994);

see also Fed. R. Evid. 804(b)(3) notes of advisory committee

on proposed rules.

Nor is the Confrontation Clause a barrier to the admission

of Judd's statements. Appellants' reliance on Bruton v.

United States, 391 U.S. 123 (1968), as interpreted by this

court in United States v. Coachman, 727 F.2d 1293 (D.C. Cir.

1984), is to no avail. In Coachman, the court held that the

admission of an accomplice's statements against interest that

also incriminated the defendant violated the defendant's Con-

frontation Clause rights where the declarant was unavailable

for cross examination. See 727 F.2d at 1296-97. After this

circuit decided Coachman, the Supreme Court clarified the

Sixth Amendment inquiry when the government seeks to

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4 Our holding that the government failed to adduce sufficient

evidence to convict Judd of conspiracy and aiding and abetting does

not alter our conclusion that Judd's post-murder statements were

against his penal interest. At the time that the statements were

admitted into evidence, they were probative of Judd's possible guilt,

and the mere fact that the statements alone do not create an

inference of guilt beyond a reasonable doubt does not remove them

from the ambit of Rule 804(b)(3).

admit a nontestifying codefendant's statement that inculpates5

another defendant in a joint trial. See Cruz v. New York, 481

U.S. 186 (1987); Lee v. Illinois, 476 U.S. 530 (1986). Under

Cruz, a court may, in a joint trial, admit an out of court

confession or statement against penal interest by one defen-

dant that inculpates a codefendant if the statement is "direct-

ly admissible" against the other defendant. Cruz, 481 U.S. at

193. Generally, such a statement will be directly admissible

if it is reliable, as defined in Lee and in Ohio v. Roberts, 448

U.S. 56 (1980), and if the declarant is unavailable to testify,

see Cruz, 481 U.S. at 193 (citing Lee, 476 U.S. 530).6 In

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5 The Supreme Court has acknowledged that not all inculpatory

statements are equally inculpatory, and has held that with a proper

limiting instruction, admission in a joint trial of a codefendant's out

of court statement that does not "facially incriminat[e]" another

defendant is permissible. See Gray v. Maryland, 118 S. Ct. 1151,

1154-57 (1998); Richardson v. Marsh, 481 U.S. 200, 211 (1987); see

also United States v. Applewhite, 72 F.3d 140, 145-46 (D.C. Cir.

1995). The government does not claim that Richardson or its

progeny applies in the instant case. Appellants however, interpret

Gray, involving redacted confessions, to hold that the statement of a

nontestifying defendant that inculpates codefendants is inadmissible

in a joint trial. However, the Court in Gray revisited Bruton and

Richardson to clarify that statements that incriminate only inferen-

tially are outside the scope of Bruton. The Court explained that

such statements if included under Bruton analysis "too often would

provoke mistrials, or would unnecessarily lead prosecutors to aban-

don the confession or joint trial, because neither the prosecutor nor

the judge could easily predict, ... whether or not Bruton had

barred use of the confession." Gray, 118 S. Ct. at 1157. Although

Judd's statement named the Wilsons, his statement was not a

confession that "facially incriminated" them. Judd's statement,

which was against his penal interest, inculpated Judd as well as the

Wilson brothers only when it was linked with other evidence at

trial. It was not the sort of statement under Bruton or Gray that

would require severance or exclusion.

6 In other words, if the government seeks to admit an out of court

statement by defendant A against A, and such testimony also

inculpates codefendant B, the testimony is inadmissable in the joint

trial unless it would be admissible against B if B were tried alone.

Roberts, the Court noted that a statement is admissible and

does not violate the Confrontation Clause where there is a

necessity (i.e., the witness is unavailable) and the statement

bears sufficient "indicia of reliability" in that it falls within a

"firmly rooted hearsay exception," or has "particularized

guarantees of trustworthiness" such that "there is no material

departure from the reason for the general rule." Roberts,

448 U.S. at 62-67. After Lee, the question remains whether

statements against penal interest can qualify as a firmly

rooted hearsay exception as a class or whether each state-

ment must qualify through its particularized guaranties of

trustworthiness.7 We do not address this question because

we conclude that the particular statements admitted in the

instant case were reliable.

As the government suggests, because Federal Rule of

Evidence 804(b)(3) is based on the idea that "declarations

against interest are reliable because people do not make such

statements unless believing them to be true," United States v.

Barone, 114 F.3d 1284, 1295 (1st Cir. 1997), statements that

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Thus, the government may not use a joint trial to bootstrap

admission of incriminating hearsay against one codefendant that it

would not be able to admit if the trials were severed.

7 In Lee the Court noted that confessions have a rebuttable

"presumption of unreliability" and do not fall within a "firmly

rooted" hearsay exception. 476 U.S. at 543. In footnote 5, the

Court also seemed to reject a broad application of the statement

against penal interest exception to allow the admissibility of confes-

sions, observing that "the concept defines too large a class for

meaningful Confrontation Clause analysis." Id. at 544 n.5. In the

end, the Court did not state whether the penal interest exception

was "firmly rooted" and the circuits have taken different views on

the issue. See United States v. Moses, 148 F.3d 277 (3d Cir. 1998);

United States v. Keltner, 147 F.3d 662 (8th Cir. 1998); LaGrand v.

Stewart, 133 F.3d 1253 (9th Cir. 1998); Neuman v. Rivers, 125 F.3d

315 (6th Cir. 1997); Earnest v. Dorsey, 87 F.3d 1123 (10th Cir.

1996); United States v. Trenkler, 61 F.3d 45 (1st Cir. 1995); United

States v. Matthews, 20 F.3d 538 (2d Cir. 1994); United States v.

Flores, 985 F.2d 770 (5th Cir. 1993); United States v. York, 933

F.2d 1343 (7th Cir. 1991).

inculpate both the declarant and the codefendant are admissi-

ble if they "truly" fit the exception to the hearsay rule.

Viewing the totality of circumstances, the district court could

reasonably find that Judd's statements to Young and Thomas

were reliable. Judd's statements were not contained in a

confession to law enforcement officials. He made the state-

ments to lay persons with whom he had no motive or incen-

tive to diminish his role by shifting blame, see id. at 1292;

quite the contrary, Judd's statements revealed conduct be-

yond his mere presence in the area where Copeland was seen

and shot. Judd's statements also occurred at different times

to different people on the day after the murder.8

III.

Appellants also contend that the district court erred in

denying their motion for a new trial because the government

violated Brady v. Maryland, 373 U.S. 83 (1963), by tardily

disclosing two statements by Kevin Eddings the day before

he and Thomas testified at trial. Under Brady, the govern-

ment must "disclose to an accused exculpatory information

that is both favorable and material to guilt or punishment.

This duty extends to evidence drawing into doubt the credibil-

ity of a witness when the witness' reliability may be determi-

native of guilt or innocence." United States v. Dean, 55 F.3d

640, 663 (D.C. Cir. 1995). While the government maintains

the statements fall only within the ambit of Jencks state-

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8 Even if admission of the statements was error, the error was

harmless beyond a reasonable doubt, see Chapman v. California,

386 U.S. 18, 24 (1967), in light of the nonconflicting, nonambiguous,

and overwhelming evidence against Ralph and Louis. The Lorton

tape, see infra Part V, established their motive to kill and to

retaliate; James's attorney testified that Ralph had heard portions

of the tape; Thomas testified that on that same night Ralph

enlisted his help in finding Copeland; Hamilton saw Ralph and

Louis armed at 5th and O Streets, N.W., looking for Copeland

around noon on the day of the murder; and in a telephone

conversation after the murder Ralph told James's son that his

father's trial "looked alright now." In addition, four eyewitnesses

saw Louis shoot Copeland.

ments,9 in viewing them as Brady material, we note that in

the district court appellants did not request a continuance in

order to determine whether the statements supported a via-

ble alternative defense, nor request a mistrial, nor even claim

a Brady violation had occurred; instead, they made effective

use of the statements at trial. We find no plain error. See

United States v. Olano, 507 U.S. 725 (1993).

In the first statement, made to law enforcement officials in

April 1996, Eddings indicated that Copeland was afraid of one

of the men they encountered at the Bundy playground. (That

man was Thomas.) He stated that he and Copeland encoun-

tered the same man near a church, and Copeland spoke to the

man, who responded to the effect that "I'm [James's] brother,

your problems are with him not me."10 The second statement

was Eddings's grand jury testimony, where he repeated that

Copeland had told him to run if the man (later identified as

Thomas) made a move, and that he and Copeland ran,

eventually coming to 5th and N Streets, N.W., where Cope-

land was shot. Eddings put Thomas, Young, and another

man named Tim Carrington together on the street corner

when the shooting occurred. Eddings recanted his earlier

claim, however, that an exchange had occurred near the

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9 See Jencks v. United States, 353 U.S. 657 (1957); 18 U.S.C.

s 3500 (1994).

10 In the early evening, Eddings had met his friend Copeland and

they walked to the Bundy School playground. Two men, later

identified as Young and Thomas, were in the Bundy playground

sitting on a wall. In earlier statements to the police and the grand

jury, Eddings said that Copeland told him that if one of the men

made a move they should run. When Thomas stood up, Copeland

and Eddings ran from the playground.

Copeland and Eddings, upon leaving the park, proceeded to 5th

and N Streets, N.W. At the corner they encountered Thomas,

Carrington, and Young. Copeland then began "loud-talking" to

Young, or to no one in particular, about the fact that he was not

"Hot," and if they killed him they would be killing the wrong

person. At this point, Copeland saw Marcellus Judd and called out

to him. Then Eddings heard a shot. Eddings, Young, and Car-

rington identified the shooter as Louis Wilson.

church between one of the Wilson brothers and Copeland.

Thus, Eddings told the police and later the grand jury that he

had seen the shooter earlier that day at the Bundy play-

ground and chose Louis's photograph as resembling the

person he had seen.

Beyond disclosing the largely immaterial recantation by

Eddings before the grand jury, the government maintains,

persuasively, that there is virtually nothing in Eddings's

statements to support a viable alternative defense theory that

Thomas was the shooter. Not only was Eddings consistent in

identifying the person he thought was the shooter, he was

standing across the street from the place where the shooting

took place, and he and other government witnesses placed

Thomas with Eddings. At most, then, Eddings's statements

revealed that his identification of Louis as the shooter was

undermined by his claim that the shooter had been in the

Bundy playground earlier. They also revealed that Copeland

feared Thomas, and raised the question of where the Wilson

brothers were immediately before the shooting and how Judd

could have gone to retrieve someone (Louis) who was already

at the scene.

But even if Eddings's statements were potentially of great-

er importance to the defense than the government suggests, a

new trial is rarely warranted based on a Brady claim where

the defendants obtained the information in time to make use

of it. See United States v. Dean, 55 F.3d 640, 663 (D.C. Cir.

1995); United States v. Paxson, 861 F.2d 730, 737 (D.C. Cir.

1988); United States v. Tarantino, 846 F.2d 1384, 1417 (D.C.

Cir. 1988). Appellants have the burden to show that "had the

statements been disclosed earlier, there is a probability suffi-

cient to undermine our confidence in the actual outcome that

the jury would have acquitted." Tarantino, 846 F.2d at 1417.

Appellants make no such showing.

First, appellants made effective use of the statements at

trial. Ralph ended his cross examination of Eddings by

eliciting an admission that the shooter was the same person

from the Bundy playground, contradicting Eddings's earlier

testimony. As the government notes in its brief, "[t]here was

nothing left to say." Second, appellants fail to show, beyond

vague generalities, how the trial would have been different

with earlier knowledge of Eddings's statements. Having

decided to use Eddings's statements in cross examination

rather than request time from the district court to determine

whether there was a viable alternative defense with Thomas

as the shooter, appellants' Brady claim loses force. Appel-

lants therefore fail to show a "reasonable probability" of a

different result.

IV.

Nevertheless, for other reasons, appellants contend that

they were denied the opportunity to develop a defense theory

that a third party committed the murder. We review the

district court's decision to deny admission of evidence for

abuse of discretion, finding abuse where "it plainly appears

that the excluded evidence bears on a matter that could be

determinative of guilt or innocence." United States v. Mor-

gan, 581 F.2d 933, 936 (D.C. Cir. 1978). We find no error,

much less an abuse of discretion.

A defendant has a constitutional right to present a defense,

see Chambers v. Mississippi, 410 U.S. 284 (1973), and the

district court must proceed cautiously in restricting such

efforts, see United States v. Stewart, 104 F.3d 1377, 1384

(D.C. Cir. 1997); United States v. Foster, 982 F.2d 551, 552

(D.C. Cir. 1993). At the same time, the district court may

properly restrict the presentation of evidence based on con-

cerns that the evidence might confuse or mislead the jury.

Cf. Fed. R. Evid. 403. Appellants challenge the district

court's exclusion of evidence with regard to: (1) FBI Agent

Bamel, who was not permitted to give the names of other

defendants against whom Copeland was scheduled to testify;

(2) Christine Huff, who was not allowed to identify one of

three young men she claimed did the shooting; and (3)

Terrence Blair, who was not allowed to testify that he heard

another person state shortly after the shooting, "That's going

to teach niggers don't mess with our business."

Appellants' contentions regarding the first two witnesses

are meritless. During Agent Bamel's testimony the district

court allowed the jury to hear that Copeland had assisted the

government in numerous cases, but drew the line at admitting

the names of the defendants in those other cases. Specific

names would be irrelevant for the jury to hear absent some

proffer--and there was none--that one of those named indi-

viduals had an opportunity to kill Copeland. As for Christine

Huff, she was called as a witness by Louis, and the district

court ruled that if Ralph's attorney wanted to venture into

the subject of other people Huff saw shooting Copeland he

should call Huff as his own witness, because that subject

exceeded the scope of Louis's direct examination of Huff.

Ralph never attempted to call Huff as his own witness; and

consequently, he has no basis to claim that the district court

restricted him from presenting evidence of third-party culpa-

bility. Moreover, Huff did testify she saw a man other than

Louis shoot Copeland; she was prevented only from identify-

ing that man, whom she knew by a nickname.11

Appellants' contention about the third witness--that the

district court improperly restricted Terrence Blair's testimo-

ny--turns on the nature of the statements Blair purportedly

heard. Blair testified that he and his girlfriend were coming

from the park when they heard shots and saw people scatter-

ing. They approached the area where Copeland's body lay,

and as Blair and others stood around talking, a man ap-

proached from behind. Defense counsel proffered that Blair

would testify that the man, who looked as if he had a gun,

said in effect that Copeland got what he deserved and that his

death would teach others not to mess in our business. De-

fense counsel argued that the statement was admissible as a

statement against penal interest or, alternatively, that it was

a statement that Blair reported to the police that should have

been a part of the investigation of the murder. The govern-

ment countered that the statement did not qualify as one

against penal interest and that as a statement used to excul-

__________

11 In rebuttal, the government called FBI Agent Bamel, who

testified that Huff often changed her story.

pate the defendant, the statement required corroboration.

The district court agreed that the statement was not against

penal interest because its meaning and relevance could not be

determined and thus it was inadmissible hearsay. In addi-

tion, the evidence could not be admitted to show that the FBI

had a lead it did not follow because the information was

irrelevant and such testimony might place Blair in unneces-

sary jeopardy.

Regardless of whether, as the government urges, evidence

that a third party committed the crime is admissible only if

coupled with "substantial evidence,"12 or, as appellants argue,

is admissible without a heightened showing,13 the district

court was well within its discretion to exclude it. The court

simply refused to allow testimony about an ambiguous re-

mark by an unidentified man about whom nothing more was

known. Such proffered evidence hardly meets Winfield's

"reasonable possibility" test and is tantamount to evidence

about a hypothetical suspect. See Gethers v. United States,

684 A.2d 1266, 1271 (D.C. 1996). We accordingly find no

error.

V.

Appellants also contend that the district court erred in

admitting into evidence the Lorton tape recording because

the government failed to lay a foundation by showing that

Ralph had heard the entire tape; the tape contained refer-

ences to inadmissible prior bad acts; the probative value of

the tape was substantially lessened by an offer to stipulate

that the Wilson brothers knew Copeland would be a witness

at James's trial; and the tape should have been excluded

under Federal Rule of Evidence 403. Although the tape

contains brutally frank descriptions of appellants' involvement

__________

12 See, e.g., Guam v. Ignacio, 10 F.3d 608, 615 (9th Cir. 1993). But

see United States v. Crosby, 75 F.3d 1343, 1346 (9th Cir. 1996).

13 See Winfield v. United States, 676 A.2d 1, 4 (D.C. 1996) (in

banc); see also United States v. Thomas, 896 F.2d 589, 591 (D.C.

Cir. 1990).

in other criminal matters, we find no abuse of discretion by

the district court. See United States v. Crowder, 141 F.3d

1202, 1210 (D.C. Cir. 1998) (in banc); United States v. John-

son, 970 F.2d 907, 912 (D.C. Cir. 1992); United States v.

Moore, 732 F.2d 983, 992 (D.C. Cir. 1984).

Appellants' foundation argument is seriously flawed. They

maintain that the tape is admissible only insofar as one of the

conspirators heard it, and that in order to admit the entire

tape to show Ralph Wilson's motive, the government was

required to show that he heard the entire tape. Appellants

point to the "conditional fact" requirement to support their

theory. See Fed. R. Evid. 104(b); Huddleston v. United

States, 485 U.S. 681, 689-90 (1988); United States v. Matta-

Ballesteros, 71 F.3d 754, 767-68 (9th Cir. 1995), amended on

denial of reh'g and reh'g in banc, 98 F.3d 1100 (9th Cir.

1996). Having failed to show that any defendant heard the

full tape--the conditional fact--appellants maintain that the

full tape was irrelevant.

Yet appellants ignore two salient facts. First, at the

pretrial conference, the government represented that it could

demonstrate that James, as an unindicted co-conspirator,

read or reviewed the entire transcript of the Lorton tape

recording. James's attorney testified that he "went over" the

transcript with his client and that he would have been "re-

miss" not to share information with his client. In spite of this

testimony, appellants maintain that it would be pure specula-

tion to infer that James, the attorney's client, knew the

contents of the tape in at least as much detail as his wife and

brother. On the contrary, it seems highly unlikely that an

attorney would share information with his client's wife and

brother that has not first been discussed with the client;

thus, it is highly unlikely that Ralph and James's wife learned

before James of Copeland's existence as a witness. In con-

junction with evidence of telephone records between James at

Lorton and the Wilson family, the jury could reasonably infer

that James learned the contents of the tape and relayed the

information to his brothers.

Second, James's attorney provided the necessary founda-

tion. He testified that on March 20, 1996, six days before

James's trial date, he had played portions of the tape for

Ralph and James's wife. He specifically recalled playing

portions of the tape that covered the postal robbery and

where James identified himself, his son, and the family. The

attorney also revealed Copeland's name.

As to appellants' contention under Rule 403, the tape was

relevant evidence of appellants' motive because the incrimina-

ting statements on the tape were elicited by the murder

victim. See Fed. R. Evid. 404(b) & 401; cf. United States v.

DeAngelo, 13 F.3d 1228, 1231-32 (8th Cir. 1994). The tape,

combined with the evidence that the same evening Ralph had

enlisted the assistance of Thomas in locating Copeland be-

cause he would be a government witness at James's trial,

provided the jury with a reasonable basis to infer that

something the attorney told Ralph caused him to act the same

day. In addition, evidence of a nineteen-minute telephone

call from James to Ralph's home on March 22 supports an

inference that the brothers discussed the Lorton tape. So

viewed, the evidence supported the district court's determina-

tion that the tape was discussed by James and Ralph a few

days before the murder.

Appellants, however, take the position, in view of the

testimony by James's attorney that he played only portions of

the Lorton tape during his meeting with Ralph and James's

wife, that only the identified portions actually played were

admissible. Thus, only the portions of the tape reflected on

page 11 of the tape transcript as well as later portions

regarding James's identity, his son, the family, and the "Wil-

son gang" are admissible. There are two problems with

appellants' position. First, some of the more inflammatory

portions of the tape were those that the attorney admitted

playing for Ralph and James's wife. The district court was

therefore on firm ground--under appellants' theory--to ad-

mit these portions of the tape. Second, although James's

attorney was unable to identify specifically what other parts

of the tape he played or what portions of the transcript he

read, he acknowledged relaying the information to Ralph and

James's wife "to let them know what the status of the case

was, and that Mr. Copeland would be called as a witness

regarding those conversations allegedly recorded." With this

testimony, the government met its burden of showing, for

purposes of admission of the tape to show appellants' motive,

that members of the conspiracy heard the tape recording or

learned the contents of the tape transcript. Consequently,

the success of appellants' attack on the admission of the

entire Lorton tape rests on their contention that the jury

heard gratuitously prejudicial portions of the tape that should

have been excluded under a proper Rule 403 balancing.

Tape recordings that are segregable into discrete portions

without engendering confusion or detracting from the govern-

ment's legitimate need to prove its case may include some

portions that are dramatically more prejudicial and less pro-

bative than others. In such circumstances, the proper proce-

dure, as with a live witness testifying about the substance of a

partially admissible conversation, would be to admit only

those portions of the recording that satisfy Rule 403. The

government is entitled to use a tape recording to tell a story,

but not to inflate the narrative into a soap opera. The Lorton

tape recording revealed through the words of brother James

a vivid picture of the Wilson family. At page 11 of the tape

transcript, James described himself as a "beast" and dis-

cussed the details of the postal robbery. In other parts of

the tape, he described himself as a "beast," his son as a

"beast", and the Wilson family as a "family-run organized

gang." He also claimed that "we was robbing banks." In

appellants' not unreasonable view, the tape "implicated them

in other crimes and depicted them in a brutal fashion."

Appellants somehow find support in Old Chief v. United

States, 117 S. Ct. 644 (1997), for their contention that the

Lorton tape should not have been admitted because they

were willing to stipulate that the defendants had a motive to

kill Copeland. Fairly read, however, Old Chief would permit

the government to demonstrate appellants' intent through the

admission of the Lorton tape recording, which "tells a colorful

story with descriptive richness," id. at 653, rather than be

confined to a mere stipulation, see id. at 654-55. The govern-

ment points out that the tape showed not only that Copeland

had betrayed appellants' brother, but also that he had infor-

mation about them. Striking the tape, or at least some

portions, would thus have weakened the government's de-

piction of the depth of Copeland's betrayal and eliminated

this aspect of appellants' motive. The only issue in the

instant case is therefore whether the district court abused its

discretion in permitting the jury to hear the entire story--as

opposed to edited fragments--recounted on the Lorton tape.

It is true that the Lorton tape was not the government's

only means of proving motive. Even if the government could

not be forced to accept the defense offer to stipulate, the

government's discovery letter to James's attorney that was in

evidence disclosed that Copeland would testify against James

and thus sufficed to show a motive and was properly part of

any Rule 403 analysis. See Crowder, 141 F.3d at 1210. Still,

in Crowder this Court made clear that "the Rule 403 inquiry

in each case involving Rule 404(b) evidence will be case-

specific. There can be no 'mechanical solution,' no per se

rule...." Id. Consequently, the fact that this court re-

versed a conviction on the grounds that the prosecutor,

during cross examination of the defendant and another wit-

ness, "by innuendo ... painted a picture of [the defendant

and the witness] as seedy and sinister characters," United

States v. Shelton, 628 F.2d 54, 56 (D.C. Cir. 1980), is not

dispositive in this case.

The district court noted upon reviewing the tape that there

were "some areas of just gratuitous vulgarity," but reasoned

that "just removing gratuitous vulgarity for the sake of

removing it could create a problem." The court explained

that not only did the tape have "descriptive richness" that

was absent from the prosecutor's letter, "[o]nly as the pieces

of the conversation come together can the jury infer, if it

deems it appropriate, its cumulative effect on Ralph Wilson

and Louis Wilson." Nevertheless, the district court did ex-

clude a portion of the tape.14 The court also instructed the

jury that it was to consider the tape for the limited purpose of

__________

14 The district court excluded a reference to a homicide.

deciding whether the defendants had a motive to kill Cope-

land. Although the tape did convey an unsavory impression

of the Wilson brothers and in closing argument the prosecu-

tor relied on the tape,15 it does not follow, given the teaching

of Old Chief, that the district court abused its discretion.

Even under appellants' theory, the government was entitled

to present its evidence to tell the story since Ralph heard key

portions of the tape. Additional portions did not substantially

magnify the unfavorable light already cast by those portions

James's attorney confirmed he played. Under the circum-

stances, the district court could properly conclude, in light of

the nature of the evidence that would be before the jury, that

the Lorton tape recording would not be unduly prejudicial.

We acknowledge however, that appellants' Rule 403 chal-

lenge to the tape presents a close question. The transcript

indicates that about half of the tape is at best only marginally

probative of motive. These portions of the tape illustrate the

relationship between Copeland and James, and thus indicate

why appellants would be upset at the betrayal of this relation-

ship; but they consist solely of vulgar bantering and meaning-

less patter. Although only marginally probative, these por-

tions are prejudicial. Excising these portions seemingly

would not have deprived the government of the "descriptive

richness" or context needed to convey its theory of motive

because the remaining portions impart an accurate flavor of

the Copeland-Wilson relationship.16 Nevertheless, we do not

__________

15 In closing argument, the prosecutor suggested to the jury that

as Ralph listened to the tape, he formed a motive to join the

conspiracy to kill Copeland. In rebuttal closing argument, the

prosecutor argued that the tape implicated Ralph and Louis in

other crimes and provided a motive for them to protect themselves

and James from Copeland. The prosecutor also noted the refer-

ences on the tape to the Wilson brothers as "beasts" and as a

"gang" and to the claim that "[they were] robbing banks."

16 For example, the probative value of the following exchange

eludes us:

W: I is not no bitch.

C: You acting like a bitch.

W: Yous a bitch.

conclude that the district court erred because not only did

appellants fail to request such a parsing of the tape but the

transcript demonstrates that the clearly probative portions of

the tape are no less prejudicial than the more marginally

probative portions. The district court therefore did not abuse

its discretion in finding that editing the tape would have done

more harm, by fragmenting the narrative, than good.

VI.

Appellants challenge the impaneling of an anonymous jury,

two jury instructions, and the provision of transcripts to the

jury. We treat these claims summarily because they lack

merit.

First, in impaneling an anonymous jury, the district court

carefully addressed the considerations set forth in United

States v. Edmond, 52 F.3d 1080 (D.C. Cir. 1995). The

indictment itself suggested the need for an anonymous jury,

particularly in light of the eve-of-trial murder of the govern-

ment's key witness in the postal robbery case against James.

See id. at 1091-92; United States v. Riggio, 70 F.3d 336, 340

n.22 (5th Cir. 1995). Moreover, the government had evidence

that still another government witness in the instant case had

been threatened that he would "end up like [Copeland]."

Appellants were facing life sentences, see United States v.

DeLuca, 137 F.3d 24, 32 (1st Cir. 1998), and there was initial

media interest in the trial, see United States v. Paccione, 949

F.2d 1183, 1193 (2d Cir. 1991); United States v. Vario, 943

F.2d 236, 240 (2d Cir. 1991). Given the further evidence that

James viewed his family as a "family-run organized gang,"

the district court could reasonably conclude that an anony-

mous jury was appropriate.

__________

C: You acting like a bitch.

W: Kiss me in the mouth.

To the extent that exchanges like this convey the type of back-

ground flavor necessary to comprehend appellants' motive, such

flavor is evident in other, more clearly admissible, portions of the

tape.

Nor did the district court abuse its discretion by not

conducting an evidentiary hearing on the Edmond factors.

Having heard arguments of counsel, the district court could

reasonably determine that an evidentiary hearing was unnec-

essary inasmuch as the government was relying principally on

the charges in the indictment and the prosecutor's affidavit.

Appellants cite no contrary authority. Finally, the district

court took reasonable precautions, instructing the jury that

an anonymous jury was not out of the ordinary. As required

by Edmond, appellants' fundamental rights were protected

and they show no prejudicial effects. See Edmond, 52 F.3d

at 1090.

Second, Ralph Wilson has shown no plain error in the jury

instructions (to which he did not object).17 The substance of

his challenge to the credibility instruction is that by instruct-

ing the jury to "determine where the truth lies" the district

court deprived him of a verdict of guilt beyond a reasonable

doubt.18 It is true that this court has expressed the view that

__________

17 Although he maintains the failure to object to the instruction on

credibility is excused by the earlier understanding that the district

court would give the modified 1993 version of instruction 2.11, that

view would seriously undermine the contemporaneous objection

rule. See Fed. R. Crim. P. 30; see also Johnson v. United States,

117 S. Ct. 1544, 1548 (1997).

18 The jury instruction contained language deleted in the more

recent, 1993 edition of the "Red Book." The statement "[i]f there is

any conflict in the testimony, it is your function to resolve the

conflict and to determine where the truth lies" was deleted from the

1993 edition of the standard instruction. The Red Book commen-

tary explains that the clause was deleted because it suggested that

the jury was required to determine "historical fact." See Model

Jury Instructions for the District of Columbia, Instr. 2.11 Comment.

The editors concluded that courts should not leave juries with the

impression that they need to "resolve conflict" because, in fact, any

unresolved conflict could simply weigh into the jury's ultimate

determination that the prosecution failed to meet its burden of

proof in a given case. See id. However, the commentary also

notes that "there has been no case law addressing whether such an

instruction is appropriate." Id.

such an instruction is inconsistent with otherwise adequate

burden of proof and reasonable doubt instructions. See Unit-

ed States v. Rawlings, 73 F.3d 1145, 1148 (D.C. Cir. 1996).

Yet not only did the district court here repeatedly and

correctly instruct the jury that the government had the

burden of proof beyond a reasonable doubt, appellant cites no

authority that would require reversal of Ralph's convictions

on this ground. In United States v. Spencer, 25 F.3d 1105,

1110 (D.C. Cir. 1994), the court found no plain error where

the jury was instructed to decide which theory of the case

was correct, meaning the jury needed to decide who was

lying, where there was a genuine conflict in the testimony of

the two sides.19 In contrast, the reversal in Rawlings, 73

F.3d 1145, turned on a combination of errors, one involving an

element of an offense, and another involving the "truth"

instruction in a case where misidentification, not credibility,

was the issue. See id. at 1148. No such combination of

errors exists in the instant case. Moreover, in Rawlings, the

court declined to hold that the "truth" instruction alone

impermissibly shifted the burden of proof to the defendant.

See id. at 1148 n.4.

The challenge to the instruction on conspiracy rests on the

mischaracterization that the instruction permitted the jury to

convict on the basis of an overt act that preceded the exis-

tence of the conspiracy. In fact the evidence showed that the

conspiracy to locate witnesses existed before March 20. Re-

call that in January and February 1996, James's attorney

learned about Copeland's role as a witness and received a

copy of the tape. From that time forward, James's attorney

knew Copeland would be a witness and the likely contents of

his testimony. In the attorney's view, he would have been

"remiss" not to share this information with his client James.

A reasonable juror could thus infer that prior to the attor-

ney's March 20 meeting with Ralph and James's wife, the

Wilson brothers knew that a damaging witness existed and

sought more information at the meeting; thus, hearing the

__________

19 In Spencer, the district court instructed the jury: "As some-

body or both lawyers said, somebody is lying. It is perfectly

obvious." Id. at 1110.

tape was an act "in furtherance" of the conspiracy to prevent

this dangerous witness from testifying. The instruction,

moreover, did not permit the jury to convict merely on the

basis of the receipt of this information, but required the jury

to find that the overt act of obtaining information was com-

mitted "to carry out the conspiracy."

Third, during its deliberations the jury sent a note to the

district court requesting the transcripts of four government

witnesses: Eddings, Hamilton, Young, and Carrington. Ini-

tially, the district court instructed the jurors "to let their

recollection control." The next day, the prosecutor provided

redacted transcripts of the witnesses' testimony (deleting the

bench conferences) and the court, after learning from the jury

that it still wanted them, decided to give the jury two copies

of the transcripts. Defense counsel argued that the jury

should also be provided with the testimony of two FBI agents

who impeached the four government witnesses. The district

court granted the jury's request and denied appellants', not-

ing that the jury had not requested the additional transcripts

and could be trusted to remember the testimony of the

impeaching witnesses. Appellants now contend that this was

an abuse of discretion because the jury received the bulk of

the government's case in written form. See United States v.

Davis, 974 F.2d 182 (D.C. Cir. 1992).

The district court "enjoys broad discretion in responding to

jury questions generally, and especially in deciding whether

to provide requested testimony either in written form, or as

read by a court reporter." United States v. Boyd, 54 F.3d

868, 872 (D.C. Cir. 1995) (citations omitted). While this

discretion is not unlimited as there are "two inherent dan-

gers" in sending transcripts to the jury--the jury "may

accord 'undue emphasis' to the testimony ... [and it] may

apprehend the testimony 'out of context,' "--the provision of

transcripts is not inherently an abuse of discretion. United

States v. Rodgers, 109 F.3d 1138, 1142 (6th Cir. 1997) (cita-

tions omitted); see also United States v. Escotto, 121 F.3d 81,

84-85 (2d Cir. 1997); United States v. Lujan, 936 F.2d 406,

411-12 (9th Cir. 1991). In the instant case, the district court

repeated its instruction that the jurors' recollections should

control, determined the following day that the jury still

wanted the transcripts, and additionally admonished that the

jury remember that the transcripts represented only part of

the evidence. In fact, the jury received the evidence in

context because the transcripts sent to the jury included

damaging cross-examination.

VII.

Finally, Louis challenges his sentence, contending first that

he could not be convicted of two counts of using a firearm in

relation to a crime of violence, see 18 U.S.C. s 924(c), second,

that the District of Columbia code conviction merges with his

federal convictions, and third, that the s 1512 and s 1513

convictions also merge. In the government's view, the merit-

less basis for each challenge is that Louis had only one

impulse to commit a crime. But Louis's first contention is

not so readily disposed of.20

Section 924(c) provides that "[w]hoever, during and in

relation to any crime of violence ... for which he may be

prosecuted in a court of the United States, uses or carries a

firearm, shall, in addition to the punishment provided for such

crime of violence ... be sentenced to imprisonment for five

years...." The fact that the statute appears to provide

__________

20 By contrast, Louis's merger contentions require only summary

treatment. See United States v. Sumler, 136 F.3d 188, 189-90

(D.C. Cir. 1998) (quoting Blockburger v. United States, 284 U.S.

299, 304 (1932)). D.C. Code ss 22-2401, -3202 punishes first

degree premeditated murder while armed. United States Code

s 1512(a)(1)(A) punishes a killing (or attempted killing) of another

person with intent to prevent the attendance or testimony of

that person in an official proceeding. United States Code

s 1513(a)(1)(B) punishes a killing (or attempted killing) of any

person with intent to retaliate against that person for providing a

law enforcement officer with information relating to the commission

of any offense. The D.C. Code section requires premeditation, an

element not present in either of the federal offenses. The federal

offenses require an intent to prevent and an intent to retaliate

respectively--elements not found in each other or in the crime

under the D.C. Code.

prosecutors with a means to tack on multiple counts for a

single event or series of events, or for several firearms was

addressed in United States v. Anderson, 59 F.3d 1323 (D.C.

Cir. 1995) (in banc). In that case, Anderson was charged

with one count of conspiracy to distribute and possess with

intent to distribute cocaine. He was also charged with four

counts of violating s 924(c), one count based on a 9mm pistol

seized in February 1989, a second count based on two weap-

ons seized in March 1989, and the third and fourth counts

based on two weapons seized from different locations on May

16, 1989, the date of Anderson's arrest. Following his convic-

tion and sentences on all counts, Anderson contended that the

multiple s 924(c) convictions could not be linked to only one

underlying predicate offense and this court, sitting in banc,

agreed, reasoning that "at a very minimum, s 924(c)(1) is

ambiguous," and therefore the rule of lenity applies. Id. at

1333. As a result, only one s 924(c) violation may be charged

in relation to one predicate crime.

While the holding in Anderson does not compel that one of

Louis's s 924(c) convictions be vacated, because there are two

predicate offenses that purportedly give rise to two s 924(c)

violations, the reasoning underlying the in banc court's deci-

sion is no less applicable where a single use of a gun results

in more than one offense. In Anderson, the court was

confronted with a situation in which the defendant had been

convicted of multiple s 924(c) charges, stemming from multi-

ple uses and multiple guns, based on what the court conclud-

ed was an ambiguous statute. By contrast to Anderson, in

the instant case there is only one firearm and one use, but

two underlying offenses. Nonetheless, our reasoning in

Anderson and its application of the rule of lenity lead us to

vacate one of Louis Wilson's s 924(c) convictions.

It is undisputed that Louis used his firearm only one time.

Because there is no merger of the multiple offenses, see

supra n.20, the government maintains that each offense can

provide the predicate for a s 924(c) charge. Yet this position

ignores that the reason the offenses do not merge is because

of the different mens rea requirements, not because of dis-

tinct conduct. While there may be circumstances in which

such offenses could support more than one s 924(c) charge--

as where, for example, the evidence shows distinct uses of the

firearm, first to intimidate and then to kill--in the instant

case there is no such distinction in time or place. However

many crimes Louis may have committed by shooting Cope-

land, there was only one use (albeit a repeated use) of a

firearm. The cases from other circuits on which the govern-

ment relies are readily distinguishable, involving distinct con-

duct giving rise to multiple crimes.21 In Anderson the court

reasoned that Congress intended to "penalize the choice of

using or carrying a gun in committing a crime." Id. at 1328

(emphasis omitted). That reasoning limits the number of

s 924(c) counts that may be charged in the indictment arising

out of Copeland's murder. Because there was only one use of

the firearm, the Anderson rationale ineluctably leads to the

conclusion that one of Louis's s 924(c) convictions must be

vacated. Therefore, consistent with the understanding of

congressional intent elucidated in Anderson, we vacate one of

Louis's s 924(c) convictions.22

__________

21 In each case on which the government relies, separate conduct

and uses of firearms by the defendant gave rise to the underlying

offenses charged. In United States v. Andrews, 75 F.3d 552, 557-

58 (9th Cir. 1996), on which the government relies for the proposi-

tion that each substantive conviction can support a separate

s 924(c) charge, two defendants were each charged with four

s 924(c) violations for a series of events where four distinct acts

gave rise to four separate crimes. In United States v. Nabors, 901

F.2d 1351, 1357-58 (6th Cir. 1990), the defendant used weapons in

his home for the purpose of trafficking drugs and used a weapon to

shoot a Federal Bureau of Alcohol, Tobacco, and Firearms Agent

who entered the apartment to execute a search warrant; two

s 924(c) convictions resulted from these distinct uses of firearms.

See also United States v. Romero, 122 F.3d 1334 (10th Cir. 1997)

(upholding two s 924(c) convictions for distinct conduct of carjack-

ing and robbery); United States v. Casiano, 113 F.3d 420 (3d Cir.

1997) (upholding two s 924(c) convictions for distinct conduct of

carjacking and kidnaping); United States v. Floyd, 81 F.3d 1517

(10th Cir. 1996) (same).

22 Deal v. United States, 508 U.S. 129 (1993), does not compel a

different result. Deal addressed the meaning of the word "convic-

Accordingly, we affirm the judgments of conviction in all

respects, except we reverse the convictions of Marcellus Judd

and we vacate one of Louis Wilson's s 924(c) convictions.

__________

tion" in the second clause of s 924(c), which doles out a twenty year

sentence for "second or subsequent" convictions. See id. at 131-37.

By contrast, the instant case concerns not whether a s 924(c)

conviction is second or subsequent, but rather whether more than

one s 924(c) conviction can be sustained by Louis's conduct. In

Deal, the Court assumed that Deal's six robberies could support six

s 924(c) convictions. See id. at 130-31. The only remaining issue

was whether the five convictions beyond the first could count as

second and subsequent convictions for sentencing purposes, and the

Court concluded that they could. See id. at 137. See also, Casiano,

113 F.3d at 424-25 (two s 924(c) convictions upheld where the

defendant carjacked and kidnapped his victim, and thus, as in Deal,

all convictions beyond the first would count as second or subsequent

convictions).