United States v. Carson, Samuel

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 12, 2005 Decided July 21, 2006

No. 02-3015

UNITED STATES OF AMERICA,

APPELLEE

v.

SAMUEL CARSON, A/K/A CHIN,

APPELLANT

Nos. 02-3016 & 3017

UNITED STATES OF AMERICA,

APPELLEE

v.

VINCENT HILL, A/K/A VITO,

APPELLANT

No. 02-3018

UNITED STATES OF AMERICA,

APPELLEE

v.

WILLIAM KYLE SWEENEY, A/K/A DRAPER,

APPELLANT

2

No. 02-3019

UNITED STATES OF AMERICA,

APPELLEE

v.

JEROME MARTIN, JR., A/K/A PIMP,

APPELLANT

No. 02-3046

UNITED STATES OF AMERICA,

APPELLEE

v.

SEAN COATES, A/K/A BIRDY,

APPELLANT

Appeals from the United States District Court

for the District of Columbia

(No. 98cr00329-01)

(No. 98cr00329-02)

(No. 98cr00329-03)

(No. 98cr00329-04)

(No. 98cr00329-06)

Stephen C. Leckar, appointed by the court for Sean Coates,

Steven R. Kiersh, appointed by the court for William Sweeney,

and Reita P. Pendry, appointed by the court for Jerome Martin,

argued the cause for all appellants. Paul Rosenzweig, appointed

3

by the court for Samuel Carson at the time the brief was filed,

Christopher M. Davis, appointed by the court for Vincent Hill,

Mary E. Davis, appointed by the court for Vincent Hill, and

Jensen E. Barber, appointed by the court for Vincent Hill, were

on the joint brief. Edward Charles Sussman, appointed by the

court for Samuel Carson, entered an appearance.

Mary B. McCord, Assistant United States Attorney, argued

the cause for the appellee. Kenneth L. Wainstein, United States

Attorney, Peter R. Zeidenberg, Attorney, United States

Department of Justice, John R. Fisher, Assistant United States

Attorney at the time the brief was filed, and Roy W. McLeese III

and Anjali Chaturvedi, Assistant United States Attorneys, were

on brief. Elizabeth Trosman and Patricia A. Heffernan,

Assistant United States Attorneys, entered appearances.

Before: HENDERSON, RANDOLPH and GRIFFITH, Circuit

Judges.

Opinion for the court filed Per Curiam.

PER CURIAM: The five appellants challenge their convictions

and sentences on various counts of criminal activity involving

drugs, guns and violence. For the reasons set out below, we

affirm their convictions and their sentences in toto.

I. Facts

This case is a story of mayhem and disorder in and around

the 200 block of K Street, Southwest, in the District of

Columbia from the 1980s until 1998. Underlying the violence

was appellants’ organized and massive business of selling drugs,

for which they stand convicted of participating in a narcotics

conspiracy to distribute over 1,000 kilograms of marijuana.

According to evidence believed by a jury, that drug business led

to an astonishing amount of violence and a seemingly complete

repudiation of civil society and respect for human life.

Individual appellants in this case, sometimes acting in concert,

4

stand convicted of the murders of eleven people: Melody

Anderson, Anthony Fortune, Alonzo Gaskins, Chrishauna

Gladden, Maurice Hallman, Leonard Hyson, Terita Lucas,

Darnell Mack, Teresa Thomas, Donnell Whitfield, and Larry

Wright. Some appellants also were convicted for numerous

attempted murders, crimes of violence, and firearms offenses.

All appellants were convicted for a racketeering conspiracy.

The beginning of the end of the K Street drug network came

in late 1995, when the Federal Bureau of Investigation (“FBI”

or “Bureau”) started a comprehensive investigation into illegal

drug sales in the area. FBI Special Agents set up an observation

post from an apartment overlooking the 200 blocks of K and L

Streets, Southwest, and started videotaping drug transactions,

sometimes taping transactions they initiated through undercover

work but often capturing unsolicited purchases. FBI video

cameras captured appellants Vincent Hill, Jerome Martin,

Samuel Carson, and Sean Coates in the midst of drug

transactions, and an undercover Metropolitan Police Department

(“MPD”) officer made several controlled purchases of marijuana

from appellants Hill and Martin. Appellant William Sweeney

was incarcerated when some of these purchases took place.

The FBI’s investigation lasted three years and suggested a

long history of drug-dealing and an extraordinary breadth of

violent acts. Crucial to the government’s case was testimony

from former associates of appellants and nearby

residents—testimony that was undoubtedly difficult to obtain

given evidence, as discussed below, that some of the appellants

have a history of murdering or attempting to murder potential

witnesses against them. Not every detail is known about

appellants’ lengthy pattern of lawlessness that preceded their

indictment in 1998. Largely recounting the testimony of those

cooperating witnesses, we provide below a chronological

overview of the vast drug activity and violent acts underlying

the jury’s guilty verdicts. Our summary is by no means

5

exhaustive of all facts underlying that activity. It serves to set

the factual background upon which we later build in the analysis

section of our opinion, where we address in greater detail the

facts needed to understand appellants’ specific challenges.

A. Factual Background.

This story begins with the criminal actions of appellant

Vincent Hill. Several associates of appellants, cooperating with

the government either voluntarily or pursuant to plea

agreements, testified at trial that they grew up learning to sell

drugs from Hill beginning as early as ages eleven to fourteen.

One cooperating witness described it as a “big brother/little

brother relationship,” where he would beat up others at age

eleven, get congratulated by Hill, be promoted to the role of

“lookout” where he could protect Hill’s drug activity, and

eventually “graduat[e] into [dealing] drugs as the other guys”

did. Hill would sell drugs in Southwest D.C. and have other

individuals sell drugs for him, providing binoculars and walkie-

talkies so that his underlings could warn him if police were

approaching.

By the 1990s, appellants and a number of individuals

(collectively, the “K Street dealers” or “K Street members”),

were selling marijuana in and around the 200 block of K Street,

Southwest, which continued through 1998. Over time, the K

Street dealers developed an increasingly large and loosely

organized drug-selling network. For example, as one seller

described it, the group would “go in a sequence,” with each

seller taking a turn in serving the next arriving buyer. If a buyer

“was to pull off with somebody’s bag” and without paying, the

dealers would “yell down the street” and “before that car could

get out of the area somebody would have thrown a brick . . . [or]

bottle” and, “[i]f someone had a gun at night . . . they would

actually fire at the car.”

6

The K Street dealers sold marijuana in and around K Street

throughout the morning, afternoon, and evening. During 1994

and 1995, appellant Hill made the most money out of the group,

taking in approximately $200 to $1,000 per day selling drugs.

By 1996, appellant Hill made roughly $3,000 to $4,000 in illicit

profits per week, while appellants Coates, Martin, and Sweeney

made a little less. In addition to dealing marijuana, appellants

Carson and Sweeney would help supply other members of the

group. Perhaps predictably, appellants’ drug-dealing was

surrounded by a culture of violence and intimidation, which,

according to the evidence introduced at trial, grew each year.

i. 1989.

The widespread violence that runs through this case begins

in 1989 with the murder of Larry Wright, a victim in a drug-

dealing turf war. A local dealer, Andre Murray, testified at trial

that he and Tyrone Brawner sold drugs together at First and P

Streets, Southwest, while appellant Hill, along with Wayne

Perry, sold drugs in another part of the K Street neighborhood.

In the beginning of the summer of 1989, Murray testified,

Wright was released from prison and resumed dealing drugs, but

did so on what Murray and Hill viewed as the wrong side of K

Street. A short time later, on the evening of June 29, 1989,

Murray heard gunshots fired and saw Hill at the corner of First

and O Streets, Southwest, running away. Larry Wright had been

murdered.1

1

An eyewitness, Reginald Switzer, testified to seeing Hill stand

behind Wright just before Wright was shot. Another individual

recounted that shortly after the shooting, Hill had blood on the lower

part of his leg, and remarked that “if anybody come looking for me,

I was right here gambling with you all.” In threatening people in the

neighborhood in later years, Hill made various statements suggesting

he had killed Wright.

7

Several murders followed. In late 1989, Carson, along with

another K Street dealer who cooperated with the government,

James Montgomery, murdered Maurice Hallman as revenge for

a previous fight. According to Montgomery, while Montgomery

was “hustling” on Delaware Avenue, Southwest, Hallman

punched him, at first in a playful manner and in an effort to

show off to appellant Hill. Montgomery asked Hallman to stop.

When he did not, Montgomery “put [his] stash down and

. . . came back and . . . hit him . . . to the body hard.” Hallman,

Montgomery testified, “got mad” and hit Montgomery on the

head with a gun. That altercation prompted Montgomery to tell

Hallman, in front of several witnesses, that he was “going to get

him.” Appellant Carson chided Montgomery for having

“threatened [Hallman] in front of other people” and suggested

that “if something happened to [Hallman], then [Montgomery]

would be the first one they would come and get.” Montgomery

then apologized to Hallman in front of “everybody” so

“everybody could see that [they] made up.”

That apology did not go far. Montgomery killed Hallman on

December 19, 1989. According to his own testimony,

Montgomery was in possession of Hallman’s gun and used it to

lure him to an alley—“somewhere where [he] could kill him.”

Carson accompanied Montgomery. Another individual, Leonard

Hyson, was present and would not leave, despite Carson’s

request that Hyson “go ahead about his business.” Montgomery

shot Hallman until he ran out of bullets. When he was done, he

saw Hyson lying on the ground, with Carson walking away.

Montgomery later told Carson that when he was shooting

Hallman, he had not heard Carson’s gun go off. Carson told him

“that’s because he’s sharp” and that “he hit [Hyson] in the head

six times before he hit the ground.”2

2

Another individual, Raymond Washington, repeatedly discussed

with others the death of Hallman and Hyson. Montgomery told

8

ii. 1990.

Norman Yusuf Simmons, then only fifteen years-old, was

kidnapped by appellant Coates and other individuals on April

28, 1990. Simmons was riding a bike in a park when two

individuals approached him with semi-automatic weapons.

They forced Simmons into a car, drove him to a mall, and

eventually to an apartment complex. Simmons was placed into

a trunk, and then into a second car. He was driven to another

apartment, asked at gunpoint for contact information from his

family, and then put in a closet. Simmons was eventually taken

to a wooded area and bound with black electrical tape.

Thereafter, his captors brought him to a parking lot, where he

was informed that his family had paid a ransom.

iii. 1991.

In 1991, appellant Carson stored an AK-47 and other guns

at the home of Teresa Thomas, with whom he was in a romantic

relationship. Seventeen year-old Teresa lived with two infant

daughters, her eighteen year-old sister Terita Lucas, and another

woman, Crystal Bobbitt. Carson asked Thomas to return the

AK-47, but according to Montgomery, Thomas “kept giving

[Carson] excuses” about the gun. Appellant Martin accused

Carson of “going soft over a broad” and suggested that Thomas

was “going to end up letting [Carson] get killed by his own

gun.” The father of one of Thomas’s daughters was a man from

the 5th and O Street neighborhood, and apparently Martin was

concerned that this man would take Carson’s guns from

Carson that Washington was “running his mouth about that situation.”

Montgomery thought “that [they] should kill” Washington, which

Carson did not initially want to do himself. But one day, when

Montgomery believed Washington was “in a good position” such that

he could “hit him where he is now,” Carson told Montgomery: “[i]f

you can do it, then do it.” When Montgomery got his gun,

Washington was gone, and Montgomery “just left it alone” after that.

9

Thomas’s apartment and use them against him. Carson told

Bobbit that he did not “trust” the man having “a gun on him”

and thus “had to stay strapped” when he visited. Bobbit saw

about five guns stored in a bag under Thomas’s bed.3

On March 22, 1991, Bobbitt returned to the apartment after

having spent the previous night with family in Maryland.

Entering with her child, she saw what appeared to be “all this

juice in the room,” and soon discovered that she was, in fact,

seeing not juice, but blood. Bobbitt found Thomas dead, with

Thomas’s daughter still alive under Thomas’s body. Bobbitt ran

to seek help. Police officers arrived to find Thomas and Lucas

dead, with three young children alive in the apartment. There

were no signs of a forced entry. Pictures of Carson that had

been in the apartment were missing.

According to Montgomery, Carson initially denied being

responsible for the double murder. Later, Carson described to

Montgomery what happened. Carson went to Thomas’s

apartment and “kept asking her about the gun,” and Thomas

“kept on saying that she’ll get the gun for him, but she couldn’t

get it right now because it was behind a lot of stuff, and she

didn’t want to wake her kids up.” Thomas “kept giving him

excuses,” and so Carson went to the bathroom, came out, and

“shot her in the head.” Next, he murdered Lucas. Lucas was in

her bed, and as she was “lifting up, and before she opened her

eyes,” Carson “shot her in the head, and she just laid back

down.” Carson then fled to a waiting car driven by Clifton

Edwards.

3

One of Thomas’s friends testified that she spoke with Thomas

the night Thomas was killed. Thomas appeared to be “very fussy” and

“frantic.” Thomas had recently broken up with Carson, and the friend

recalled seeing Thomas, a week earlier, take a “quite heavy” gym bag

from under her bed and run with it downstairs.

10

Carson shot and killed Anthony Fortune in August 1991,

after a dispute between Martin, Carson, and Fortune in a craps

game. Carson described the killing to Montgomery, recalling

that he had shot Fortune and after Fortune fell Carson “went

over top of him [sic] and hit him some more.” A witness saw

Martin and Carson earlier, and heard Martin talking about how

he “didn’t like Tony Fortune robbing people, and [how Fortune]

would kill your mother.” Later that evening, the witness saw

Carson “walking towards Tony Fortune, shooting.” Carson

“then stood over [the] top of him and shot him.”4

Curtis Buchmon, a friend and associate of appellants Martin

and Carson, was murdered on September 3, 1991. Appellants

Martin and Carson, along with others, believed that Buchmon

was killed in retaliation for Fortune’s murder. Martin,

Montgomery, and others engaged in an initial unsuccessful

attempt to, from Montgomery’s perspective, go “shoot

somebody” and “get some get-back for them killing” Buchmon.

They ended up shooting at a white minivan, but fled after the

van sped off. On September 10, 1991, their next attempt to seek

revenge ended in a shootout with the MPD. The group found

two people they were looking for, but their targets began to run

away. Soon thereafter, a car passed the group’s van, and began

shooting at them. But Montgomery saw more shots coming at

them from another direction. Someone who looked like a

security guard was shooting at Martin, and Martin, along with

other occupants of the van, returned fire.

The “security guard” was one of four MPD officers who

witnessed the shoot-out and returned fire into the van. Police

found the van abandoned in the 1300 block of 45th Place,

Southeast, riddled with bullet holes. A D.C. driver’s permit

4

Years later, Arthur Rice indicated to Carson that he had always

thought Martin shot Fortune and had recently heard that it was Carson.

Carson laughed, and responded: “well, now you know.”

11

issued to “Jerome Martle,” apparently belonging to appellant

Jerome Martin, was found in the driver’s side door. Police

found six sets of fingerprints in the van, three of which matched

the known fingerprints of Montgomery and appellants Martin

and Carson.

iv. 1992.

Several months later, there was yet another shooting. When

appellant Coates heard that a man named Michael Jones was

planning to testify against one of Coates’s associates, Coates

told others that “we need to get him.” Coates, along with other

individuals, shot Jones multiple times on June 28, 1992. Jones

survived.

v. 1993.

Coates, Sweeney, and others continued to engage in violent

acts during 1993. At about 2:00 a.m. in the early morning hours

of a day in October 1993, a resident of Oxon Hill, Maryland was

awakened to the sound of four individuals outside. When she

looked out her window, she saw four men arguing with Anthony

Pryor, who was in a truck. The men demanded that Pryor get

out of the truck. When Pryor complied, the men began to fight

him. Pryor started to run, until he was shot twice by one of the

assailants and kidnapped. The witness did not know the identity

of the kidnappers, but saw the door to the trunk of the assailants’

car left in the street after they fled with the victim. A witness

living at the Arthur Cappers housing complex in the District of

Columbia testified that at around 3:00 a.m. he heard noises

outside. He saw a car pull up with appellant Sweeney and other

individuals in it. The car “had no trunk.” Sweeney and others

got out, took off their clothes, and tossed them into a trash can.

Police arrived to find the car without a trunk door and various

items around it. There were bloodstains on the rear bumper, and

clothing items, car parts, and duct tape were scattered all around.

Fingerprints from appellant Coates were found on the car.

12

Coates later told Montgomery that he and others “had robbed

. . . somebody . . . and . . . put them in the trunk” and “the person

they kidnapped” had “ended up breaking the trunk off the car.”5

vi. 1994.

On September 26, 1994, a witness heard several gunshots

fired outside his home on K Street and saw appellant Sweeney

running away from a craps game with a gun in his hand. The

witness went outside and saw Donnell Whitfield dying. Another

government witness talked to Sweeney prior to Whitfield’s

death, and Sweeney indicated that Whitfield had “smacked him”

at a club and that he planned to kill Whitfield because of that

incident. Sweeney told the witness after the shooting that he

had, in fact, killed Whitfield.6

5

Another witness testified that, before Pryor’s kidnapping, he had

heard of a plan, led by appellant Hill, to kidnap Pryor because “[h]e

had plenty of money” and “[t]hey wanted the money.” Sweeney later

suggested to a cell-mate that Hill “kept playing him all the time,”

promising assailants in the Pryor kidnapping, for example, $5,000 for

their participation, yet they received nothing.

6

Montgomery recounted that Sweeney later bragged to

Montgomery and appellants Carson and Coates about having “hit

[Whitfield] a few times” and having gone “over top of him and hit him

some more,” after Whitfield previously “smacked [Sweeney] in the

face.” The term “hit,” Montgomery explained, was usually used by

the group to mean that someone “shot” someone. Two other witnesses

recounted that Sweeney made substantially the same admission to

them. A firearms expert testified that ammunition casings recovered

from the scene of the Whitfield murder matched a gun recovered from

Sweeney’s grandmother’s house. The expert concluded that bullets

recovered from the scene and Whitfield’s body “could have been

fired” from that gun, but was not able to “positively determine” that

this had been the case. The expert noted that the serial number on the

barrel of the gun did not match the serial number on the frame of the

gun, which “suggests that this barrel . . . could have been replaced.”

13

vii. 1995.

K Street member Donald Nichols testified that in 1995

appellant Hill informed appellant Martin, along with Nichols,

Switzer, Paul Franklin, and Gary Price, that James Coulter

“needed to be killed because he was hot.” Coulter was shot in

May 1995. After Coulter was shot, Nichols heard Hill tell

Martin that Martin “should have used two guns” and lament the

fact that Martin’s gun had jammed. Montgomery later heard

Martin telling Coates and Carson, “they keep trying to push it on

me,” and that “they [were] trying to say that [Martin] had

something to do with [Coulter] getting shot.” Martin claimed,

however, that “they can’t prove it” because he “had a mask on.”

Martin attempted to discourage witnesses from testifying about

the shooting of Coulter. Later, Hill told an MPD Detective that

“all your snitches are going to die, including your little buddy

who is over at the hospital now with four holes in him under the

name of John Doe . . . in Room 2299.” Coulter was in the

hospital, registered under the name of John Doe, in what was

supposed to have been an undisclosed room.

viii. 1996.

On June 26, 1996, a witness for the government standing in

the 200 block of K Street saw Carson shoot Ulysses English.

Another witness heard shots fired, saw English fall, and saw

Carson running away. Carson was upset, Montgomery

recounted at trial, that English told Buchmon’s killers where

Carson’s mother resided. Carson told Montgomery that if

Montgomery saw English in the K Street neighborhood, he

should let him know, or, “if [Montgomery] s[aw] him in a good

position, to hit him”—that is, to “kill him.” When English

survived, Carson told Montgomery that he did not think English

“was going to snitch.”

A few months later, on August 30, 1996, Demetrius Hunter

was approached by Carson and Coates about where they could

14

buy approximately seven pounds of marijuana. Hunter took

Carson and Coates, along with Ronald Horns, to an apartment in

Northeast Washington, D.C. The four went into the apartment

and met individuals Hunter referred to as “a Jamaican named

Mark” and “a Jamaican named Joe.” Joe informed the group

that he did not have all the marijuana they needed in the

apartment and offered to get it from another location. Carson

gave Joe $5,000 and left with Joe to retrieve the marijuana. The

residents of the apartment started “playing” with firearms,

according to Hunter, when Coates received a call from Carson.

Carson informed Coates that he had been sitting in front of

another apartment building waiting for Joe to return, but Joe was

nowhere to be found. Carson returned with Raymond

Washington, and Mark asked Carson and Washington to come

back the next day. Mark, whose real name was Popa Mark

Phillip, did not “know what’s up with Joe” because Joe had

“never do[ne] that before.” But as the group began to head out,

Carson pulled out a gun and opened fire on Mark and, Hunter

recounted, “another Jamaican.” Washington pulled out a gun as

well. The group fled the building, but Washington continued to

chase Mark outside and then shot him.

A robbery that year by K Street members resulted in the

triple murders of Alonzo Gaskins, Darnell Mack, and Melody

Anderson. Carson, Sweeney, and other K Street members went

to Las Vegas in 1996 to see the Evander Holyfield/Mike Tyson

boxing match. Carson saw Gaskins win about $50,000 in Las

Vegas. Carson, Montgomery, and Sweeney discussed robbing

Gaskins, hoping to get $250,000 and divide it three ways. They

planned to use money from the Gaskins robbery to kill Thomas

Fields and others from a nearby neighborhood on L Street.

Montgomery explained that the group conducted significant

surveillance on Gaskins in Temple Hills, Maryland. Then, on

the day of the attempted robbery, Sweeney brought a .40 caliber

Glock firearm and a stun gun, and after further preparation, the

15

group arrived at Gaskins’s craps house. Montgomery and

Sweeney jumped out of the group’s van, but Coates stayed

behind. Without attempting to rob Gaskins, Sweeney shot

Gaskins, shot Mack, and then shot Anderson on his way out.

When confronted by Montgomery as to why he started shooting

everyone, Sweeney claimed that Gaskins was reaching for a

weapon, which Montgomery disputed.7

A feud with individuals from L Street also developed in

1996. K Street member Charles Edwards was killed by L Street

member Joey Simmons in July 1996 because Edwards had

publicly expressed, according to a government witness, “where

he could sell his weed,” telling others that “nobody runs no

blocks” and he “can sell this weed anywhere.” Simmons and

Ronald Sowells, another L Street member, were shot in response

to Edwards’s shooting. Appellants Hill and Carson, along with

other K Street members, were also shot during the feud.

On October 30, 1996, Coates shot Sowells at the Anacostia

Metro Station. An associate of Sowells, Eric Gordon,

previously shot Coates’s associate and co-defendant, Hill, and

Sowells was now in the same car that he had used to drive

Gordon to and from that shooting. Carson pulled up to

Sowells’s car and Coates began firing. Sowells returned fire

until his gun jammed. Coates later admitted to Montgomery that

he shot Sowells with Montgomery’s gun.8

7

Police recovered twelve .40-caliber shell casings from the scene.

Sweeney’s fingerprint was found on the storm door of the house.

Sweeney later complained to another inmate that Montgomery “was

telling on them” about “a case that he was in in [sic] Maryland, a triple

homicide.” Sweeney threatened to kill Montgomery if he encountered

him. Carson later complained to another that the triple murders were

about “a money issue, a robbery” and if Montgomery “would never

have opened up his mouth,” they “would have beat the case.”

8

Coates believed that he had killed Sowells because Sowells

16

The year 1996 continued to be violent. K Street members

attempted to kill several witnesses, resulting in one murder.

During this time period, appellant Martin, along with Antonio

Knight, had been arrested for murdering Curtis Edwards, who

had been in a car with Keith Jones and Richard Burton. While

in jail pending trial, Martin kept in contact with Paul Franklin.

According to Franklin, in discussing the Edwards murder,

Martin spoke “of two people, a female by the name of Robin,

and a guy by the name of Flip.” Martin wanted to know where

Robin lived and wanted Franklin to pass that information on to

Carson, which he did. Although Franklin was aware that Martin

“wanted Robin dead” and that Robin was a witness at Martin’s

trial, Franklin testified that he showed Carson where Robin’s

home was. Montgomery also testified that Franklin told him

Martin was trying to get in contact with Montgomery and

needed Montgomery “to get on top of some witnesses for him.”9

Carson enlisted Montgomery’s help in murdering Flip, but they

were ultimately unsuccessful.10

Appellant Carson was concerned, Montgomery recounted,

that they “needed to stay on top” of “getting at these witnesses”

stopped returning fire. Coates and Montgomery fought over who

would get rid of the gun, but eventually Coates showed Montgomery

where the gun was, and Montgomery threw it in the Potomac River by

Fort McNair. Police recovered the gun from where Montgomery

disposed of it.

9

An inmate incarcerated with Martin testified that Martin “said he

wasn’t concerned about [the murder case against him], because he had

someone that was going to take care of that.”

10

After “three or four” attempts to find Flip, they gave up during

their last attempt because they found a crowd of people at the location

Flip was reported to be at, and, according to Montgomery, they “didn’t

know exactly how many people in the crowd had guns.” Carson was

concerned that they “might be outgunned.”

17

and needed to “approach it like a full time job.” One day,

Carson picked up Montgomery, bought some gardening gloves

at Safeway so they would not leave fingerprints, got his gun, and

left to find Robin and one other witness, Chrissy. Carson and

Montgomery went to 37th Place, where they heard Robin and

Chrissy would be at a party, and went inside a vacant house to

wait for their arrival. Chrissy, whose real name was Chrishauna

Gladden, arrived with several friends. According to

Montgomery, about an hour later when Chrissy left the party,

Carson ran out, put his hood on, and fired several shots into

Chrissy. Chrishauna Gladden died that night of October 5,

1996. An FBI Special Agent working on the Edwards case

testified that other witnesses “were scared to death” after the

murder of Gladden and several refused to testify. Martin and

Knight were acquitted.

Around the same time, Maurice Proctor, indicted with

appellants in this case, and Kenneth Adams were charged for a

1994 murder of Phil Clayborne, who was believed to be

testifying against two K Street members. According to Arthur

Rice, an inmate incarcerated with Proctor, Proctor suspected that

now Adams “was cooperating [with the police] because he kept

leaving the jail for no reason.” After Adams was released from

prison, Rice and Proctor got on the phone with Carson, who

believed Adams was living in Northern Virginia.

As described by Montgomery, Carson eventually got

Adams’s phone number and was able to retrieve his address in

Centreville, Virginia. Carson and Montgomery made six to

eight trips to Centreville in planning and attempting to murder

Adams, sometimes accompanied by Sweeney and Coates.

Montgomery testified at trial about various attempts being

thwarted.11 The K Street members’ attempt on Adams’s life

11

For example, because the group was concerned about driving

into and out of Virginia carrying a gun, they buried a gun in the woods

18

eventually ended when a cooperating witness informed the

government that the K Street group knew Adams was in

Centreville and was planning to kill him.

ix. 1997.

K Street members sought to kill yet another government

witness in 1997, but this time proved successful. When the FBI

opened its investigation in 1995, Robert Smith, one of the main

suppliers of marijuana to Southwest, was immediately a focus

of the Bureau’s inquiry. Smith was arrested after a sting

operation and agreed to cooperate, describing for the FBI his

drug-related activities and several crimes of violence committed

by appellant Sweeney, his relative, and Sweeney’s associates.

An FBI Special Agent conducting the investigation testified that

Smith and the Bureau tried “to make sure that nobody on the

street thought that [Smith] was cooperating.” That effort proved

unsuccessful. After Sweeney was arrested for the triple murders

in Temple Hills, he realized, according to Montgomery’s

testimony, that Smith was the only person he told about the

murders. Carson told Montgomery that if the group “hit

[Smith], then [the government] don’t have no case, but

eventually, they was going to come and get us, if we don’t hit”

Smith. After that, Carson and Montgomery would look for

Smith when they were out and about in Southwest. Although

they saw him a number of times, he was never alone.

On June 16, 1997, Carson borrowed Montgomery’s car.

Later, Montgomery heard that Smith had been shot on Half

Street, Southwest. Carson returned that evening and, after

discussing the fact that Smith had been killed, told Montgomery,

“man, trust me, we’re all right,” and returned Montgomery’s car

keys. Carson directed Montgomery to stay away “from up Half

near Adams’s home. But when they returned one day to use it, it was

missing.

19

Street” and “not to drive” the car if he “didn’t have to.” Smith

was shot eleven times, seven of which were in the head.

B. Procedural Background.

On September 18, 1998, appellants and several others were

indicted on counts of narcotics conspiracy, racketeering

conspiracy, murder and other crimes of violence, narcotics

trafficking, and weapons possession. Appellants moved to sever

various counts and defendants, but their motions were denied.

A jury trial commenced on November 15, 2000 and

deliberations began on July 9, 2001. The district court

dismissed pursuant to Federal Rule of Criminal Procedure

23(b)(3) one juror, which appellants challenge on appeal.

Throughout July and August 2001, the jury returned guilty

verdicts against appellants on numerous counts and not guilty

verdicts on several counts, and found some racketeering acts

proven and others not proven. Each appellant moved for a new

trial or sought to join a co-defendant’s motion for a new trial.

The district court denied appellants’ motions. Appellants filed

timely notices of appeal, invoking our jurisdiction to review the

judgments of conviction pursuant to 28 U.S.C. § 1291.

II. Dismissal of Juror During Deliberations

First, each of the five appellants challenges his conviction on

the grounds that the district court erred in dismissing Juror No.

3 during deliberations and in permitting the remaining eleven

jurors to deliberate to verdict pursuant to Federal Rule of

Criminal Procedure 23(b). At the time of the trial, Rule 23(b)

(since amended12) provided in relevant part:

12

The rule was amended in 2002 “as part of the general restyling

of the Criminal Rules to make them more easily understood and to

make style and terminology consistent throughout the rules.” Fed. R.

Crim. P. 23 Advisory Comm. notes to 2002 Amendments. Among the

changes, the term “just cause” was replaced with “the more familiar

20

(b) Jury of Less than Twelve. Juries shall be of 12

but at any time before verdict the parties may stipulate

in writing with the approval of the court that the jury

shall consist of any number less than 12 or that a valid

verdict may be returned by a jury of less than 12 should

the court find it necessary to excuse one or more jurors

for any just cause after trial commences. Even absent

such stipulation, if the court finds it necessary to excuse

a juror for just cause after the jury has retired to consider

its verdict, in the discretion of the court a valid verdict

may be returned by the remaining 11 jurors.

The district court’s decision under this rule to dismiss a juror or

to continue with an eleven-member jury is reviewed for abuse

of discretion. See United States v. Ginyard, 444 F.3d 648, 651

(D.C. Cir. 2006) (dismissal of juror); United States v.

Harrington, 108 F.3d 1460, 1472 (D.C. Cir. 1997) (eleven-juror

verdict). We conclude the district court did not abuse its

discretion in dismissing Juror No. 3 and permitting the

remaining eleven jurors to continue deliberating to verdict.

The jury began deliberations on July 9, 2001 and the district

court dismissed the alternate jurors at that time. On Thursday

July 19, 2001 the judge informed counsel he had learned from

U.S. Deputy Marshall Terry Adams that Juror No. 3 had

“transported himself to the Veterans Administration Hospital

with symptoms of chest pains and a tingling sensation in one

arm, which were to him sufficiently suggestive that he was

having coronary problems.” 7/19/01am Tr. 3. The court also

told counsel that Deputy Adams was going to the hospital to “try

to ascertain more information about the situation” and then

excused the jury until the following Monday, July 23, when

“hopefully they w[ould] be able to resume their deliberations . . .

with Juror Number 3 present.” Id. at 4. He stated that, if Juror

term ‘good cause.’” Id.

21

No. 3 was not present when the jury returned on July 23, he

would ask the parties to stipulate to proceeding with an eleven-

person jury but, “failing such a stipulation,” he would “exercise

[his] prerogative under Rule 23(b) to have the jury of 11

continue to deliberate and take their verdict.” Id. He then

explained the situation to the other jurors and excused them until

Monday morning. On Monday morning, Juror No. 3 was

present and deliberations continued.

On Tuesday July 24, 2001 the judge assembled counsel and

placed Deputy Adams on the witness stand to describe

“difficulties . . . with respect to Juror No. 3.” 7/24/01pm Tr. 4.

Adams testified that, after Juror No. 3 left for the hospital the

previous Thursday, Juror No. 17 informed Adams that “in the

last couple of weeks” Juror No. 3 told her “he had experienced

some mental health issues in the past and had been treated for

them” and that “he was experiencing difficulty with his

supervisor” about not reporting to work on days the jurors were

not in court. Id. at 4-5. Juror No. 3 had also informed Juror No.

17, Adams recounted, that he “bought a ‘thing’ and planned to

do ‘her’—an unidentified ‘her’—and himself.” Id. at 5. She

explained to Adams that she “took the word ‘thing’ to mean

‘gun.’” Id. In response to Adams’s questioning of her, Juror

No. 17 further explained she had not reported the conversation

earlier because she was “scared.” Id. at 6. Later the same day

(the previous Thursday), Adams testified, Juror No. 3 called

Adams from his cell phone and reported he had seen a doctor

and had a “secondary appointment for that afternoon in the same

hospital” in the “mental hygiene unit.” Id. at 6. At the judge’s

request, Adams then drove to the hospital and brought Juror No.

3 back to the courthouse for questioning. At this point the judge

interrupted Adams’s testimony to state on the record that upon

his return to the courthouse on Thursday, Juror No. 3 admitted

he had not experienced chest pains and arm tingling, as he had

informed Adams, but had “personal problems,” which “were, to

a certain extent, being exacerbated by pressure from his

22

supervisor to work when he was not on jury service.” Id. at 7.

Juror No. 3 assured the court, however, he was prepared to

return to deliberate on Monday.

Adams resumed his testimony and stated that earlier that

Tuesday afternoon he received a phone call from a member of

his staff advising that Juror No. 3 wished to see the courthouse

nurse. The nurse checked the juror’s vital signs and reported

they were normal. Later that afternoon, Adams was again

approached by Juror No. 17, accompanied this time by Juror

No. 1, the foreman. The two jurors “relayed some concern

about Juror No. 3’s health and overall well-being” and informed

Adams that “everyone on the jury had the same concern.” Id. at

9. When they asked Adams to relay their concerns to the judge,

he told them they should write a note and he would deliver it to

the judge. They expressed reluctance because they were

“receiving pressure from Juror Number 3 not to do so,”

explaining that he “was making comments referencing

homicide, and suicide and certain violent tendencies.” Id.

Adams repeated that they should communicate to the judge

through a written note, which they did shortly before the judge

summoned counsel. The judge informed counsel that the note

stated “in essence”: “We wish to speak to you directly on a

matter of considerable importance, and we wish to do so right

away.” Id. at 10. It was signed by Juror No. 1 and Juror No. 17.

After informing counsel of the note, the judge brought Juror No.

1 and Juror No. 17 into the courtroom.

The judge asked Juror No. 1 to act as “spokesperson.”

7/24/02pm Tr. 10. Juror No. 1 expressed concern that because

of “external factors, his job and other concerns that are

mounting on him to the point that he is visibly despondent and

is concerned for his safety,” Juror No. 3 was “just not

contributing to the deliberations” and was “not fully there as far

as being involved with the deliberations.” Id. at 11-12. Juror

No. 17 stated in turn that Juror No. 3 admitted he was “having

23

problems staying focused because of problems with his job.” Id.

at 12. Both jurors responded affirmatively when the judge

asked: “If [Juror No. 3] were to be excused from further

deliberations, do you think that you would be able to progress

more rapidly with respect to reaching a verdict?” Id. at 12.

The following morning, Wednesday July 25, 2001, defense

counsel requested that the court “bring Juror Number 3 out

individually and have the court conduct somewhat of an open-

ended voir dire of the juror” to determine whether the testimony

regarding his conduct was accurate. 7/25/01am Tr. 4-5. They

also informed the court that “on the state of this record” they

were “opposing the striking of this juror.” Id. at 5. The

government suggested recalling Adams to put on the record

various disclosures Juror No. 3 had made to him (as recounted

by Adams in a conversation with government counsel the

preceding evening)—specifically that Juror No. 3 had had a

drinking problem, had taken trazodone hydrochloride, a

medication administered for depression, had recently been in

possession of a gun and lived in a neighborhood with a crime

problem—which admissions, the government argued, were

“directly at odds with what he revealed in his jury

questionnaire.” Id. at 6.

Adams returned to the witness stand and confirmed that

Juror No. 3 had made the disclosures the government identified.

He also expanded on his conversation the day before with Juror

No. 1 and Juror No. 17, testifying they told him Juror No. 3 had

warned them they “had better not write a note” to the judge and

“had better not turn him in.” Id. at 10. Juror No. 17, who was

“animated and agitated,” told Adams she took the warning as a

“threat” and was “scared to write a note.” Id. at 11. Adams

further testified that, during his conversation with the two jurors,

Juror No. 3 “kept running back and forth” between the jury

room and where Adams was speaking with the other two jurors,

urging them to continue deliberating. Id. One of the other two

24

jurors—Adams was not sure which—told Juror No. 3 he

“need[ed] to take care of this matter” and Juror No. 3 “started

talking about his supervisor at work,” repeating “she is just

messing, she is just messing with me.” Id. at 11-12. Then,

getting “real agitated,” he said “I just want to hit something” and

made a motion in the air with his arm as if to do just that. Id. at

12.

After questioning Adams, defense counsel sought to

question Juror No. 1 and Juror No. 17 to determine whether the

latter had expressed fear of Juror No. 3, whether Juror No. 3 was

in fact having difficulty participating in deliberations and, if so,

whether the difficulty was the result of a personality conflict or

of differing views of the case. When the judge declined, defense

counsel asked that the judge question Juror No. 3 on whether he

felt he could meaningfully participate in the deliberations. The

judge denied this request as well, explaining that he had

“already asked that of him in chambers when he was brought . . .

from the hospital” and “notwithstanding his own belief to the

effect that he can participate, that, in fact, he cannot.” Id. at 41.

When Juror No. 3 was brought to the courtroom, the judge

questioned him briefly about the subjects earlier noted by the

government. Juror No. 3 acknowledged that (1) “as of last

Thursday” he was “a patient at the mental hygiene unit at the

V.A. Hospital” and that he was taking trazodone prescribed for

him there; (2) “in years past” he had had a “drinking problem,”

(3) he had recently kept a firearm for his brother, who was

homeless, and (4) he lived in “a generally bad neighborhood.”

Id. at 47-49. Juror No. 3 then left the courtroom. After brief

argument by defense counsel opposing dismissal, the judge

announced: “I am going to exercise discretion under Rule 23(b),

and I’m going to excuse Juror Number 3 from further

participation.” Id. at 50. The judge then brought Juror No. 3

into the courtroom and informed him he was dismissed. The

remaining jurors were summoned and told that Juror No. 3 had

25

been excused “for primarily concerns . . . with respect to his

health.” Id. at 54. The judge then expressed the “hope” that the

remaining 11 jurors would, “with a fair degree of alacrity, be

able to reach a verdict.” Id. at 54. The eleven remaining jurors

resumed deliberating and returned verdicts against all of the

defendants (but not on all of the counts) over a ten-day period

from July 26 to August 15, 2001.

Each defendant filed a motion for mistrial based on the

dismissal of Juror No. 3. The court denied the motions in an

order filed August 16, 2001. The order states in part:

Notwithstanding his expressed willingness to continue

his service as juror, in light of his deceptive answers to

voir dire questions the Court was unwilling to credit

Juror No. 3’s assurances that he was able to do so, and in

conjunction with the testimony of the jury foreman and

the female juror in whom Juror No. 3 had confided, the

Court concluded that just cause existed to dismiss Juror

No. 3.

United States v. Hill, Crim. Action No. 98-329, at 4 (D.D.C.

filed Aug. 16, 2001) (8/16/01 Mem. & Order). In the order the

court specifically found that Juror No. 3 had “given incorrect

answers” on his voir dire questionnaire when he answered “in

the negative” questions “about personal or familial alcohol

abuse, mental health medications, firearm possession and

neighborhood crime problems” because the juror had “in the

past, abused alcohol,” had “recently been in possession of a

firearm,” lived in a “crime-ridden neighborhood” and was

“currently taking the anti-depressant medication for a mental

condition that he shares with his brothers.” Id. at 4, 3 & n.4; see

also Joint Appendix 967-71 (Juror No. 3 questionnaire

responses). The appellants offer six grounds for reversing the

district court’s decisions to dismiss Juror No. 3 and proceed with

an 11-member jury under Rule 23. We address and reject each

ground seriatim.

26

First, the appellants argue that the court failed to make an

adequate inquiry into Juror No. 3’s fitness to continue

deliberating, noting specifically that, because the judge

questioned Juror No. 3 in camera, there is no record evidence to

support a finding of “just cause” to dismiss him. In pressing this

challenge, the appellants rely on two decisions which we find

distinguishable.

In United States v. Patterson, 26 F.3d 1127 (D.C. Cir. 1994),

this court held that the district judge erred in dismissing a 68-

year-old juror who had gone to the doctor after complaining of

chest pains and had been absent for 2 ½ hours. There we

concluded that the record revealed no just cause for the

dismissal because the district judge “made no attempt to learn

the precise circumstances or likely duration of the twelfth juror’s

absence.” Patterson, 26 F.3d at 1129. In United States v.

Ginyard, 444 F.3d 648 (D.C. Cir. 2006),13 we found a similar

lapse in the district court’s juror investigation. The judge there

dismissed the juror on the ground that his continued service the

following week might jeopardize an employment opportunity

available to him through a rehabilitation program. We

concluded that “the district court’s reasons for dismissing [the

juror] rested on unexamined uncertainties about the extent of the

juror’s continuing availability” because it “was unclear whether

[the juror] could be available the following week at all, for only

a couple of days, or for a longer period of time.” Ginyard, 444

F.3d at 654. Under the circumstances the district court “was

obliged to make some further effort to resolve the uncertainty

about the risk of loss of the holdout juror’s job in order to find

‘good cause’ necessitated the juror’s dismissal.” Id. at 655. In

contrast to these two cases, the district court here conducted an

extensive examination of Juror No. 3’s fitness. He questioned

13

The appellants cited Ginyard in a letter submitted after oral

argument pursuant to District of Columbia Circuit Rule 28(j).

27

Deputy Marshal Adams, Juror No. 1, Juror No. 17 and Juror No.

3. Although Juror No. 3’s initial examination occurred off the

record, the judge recited its content on the record at the hearing

the following Tuesday. In the end, there were simply no factual

“uncertainties” requiring additional inquiry.14

Second, the appellants claim that there is no basis for the

court’s “finding that Juror No. 3 was, in effect, mentally

incapable of continuing to participate in the deliberative

process,” contending that such a finding requires more detailed

evidence of a juror’s mental condition than exists in this record.

Br. of Appellants 35. The district court, however, did not

dismiss Juror No. 3 based on mental incapacity. The court

relied on a combination of factors—including that Juror No. 3

had lied about his symptoms before visiting the hospital,

provided inaccurate voir dire responses about mental health

treatment and was, according to Juror No. 1 and Juror No. 17,

distracted and unfocused (and even threatening) during

deliberations. These findings are amply supported by the

evidence. See 8/16/01 Mem. & Order.

Third, the appellants claim that the trial judge improperly

dismissed Juror No. 3 because he was impeding conviction. We

reject this contention as well. It is true that the trial court “may

not dismiss a juror during deliberations if the request for

discharge stems from doubts the juror harbors about the

sufficiency of the government’s evidence.” United States v.

Brown, 823 F.2d 591, 596 (D.C. Cir. 1987). As a consequence,

“if the record evidence discloses any possibility that the request

14

It is immaterial that, as the appellants note, Br. of Appellants 34,

the district judge made no finding of just cause to dismiss following

his initial Thursday examination of Juror No. 3—the judge made fully

supported findings after the subsequent dismissal based on

information gleaned both from the initial examination and from later

testimony by Adams and the three jurors.

28

to discharge stems from the juror’s view of the sufficiency of the

government’s evidence, the court must deny the request.” Id.

(citing United States v. Essex, 734 F.2d 832, 843 (D.C. Cir.

1984); United States v. Stratton, 779 F.2d 820, 832 (2d Cir.

1985), cert. denied, 476 U.S. 1162 (1986)). The evidence in this

case supports no such inference notwithstanding the appellants’

contention that “there is a probability—a reasonable

likelihood—that Juror 3’s dismissal for allegedly deceptive

answers on his jury questionnaire was a pretext to obtain a

quicker verdict.” Br. of Appellants 44. The judge plainly stated

his reasons for the dismissal and they had nothing to do with the

juror’s view of the case. The judge did not believe Juror No. 3

could “continue his service as juror” in light of “his deceptive

answers to voir dire questions” and the testimony, described

above, of Adams and the two jurors who were empaneled with

him. 8/16/01 Mem. & Order at 4. There is no evidence the

judge was motivated by Juror No. 3’s “view of the sufficiency

of the government’s evidence.” Brown, 823 F.2d at 596. The

judge was scrupulous to counsel Jurors No. 1 and 17 not to

reveal “how [they] may be split any way on the verdict” or

“anything about [their] deliberations on the merits of the case or

who may have voted what way,” 7/24/01pm Tr. 10-11, and they

did not. Nor is there any suggestion in the record that the judge

had the least inkling of Juror No. 3’s views regarding innocence

or guilt. What the record shows is that Juror No. 3 was viewed

by his fellow jurors as an obstacle to deliberations because he

was “having problems staying focused.” Id. at 12. In Brown, by

contrast, we found that the record “indicate[d] a substantial

possibility that [the dismissed juror] requested to be discharged

because he believed that the evidence offered at trial was

inadequate to support a conviction,” based on his statements that

“his difficulty was with ‘the way [the law is] written and the

way the evidence has been presented’” and that “‘[i]f the

evidence was presented in a fashion in which the law is written,

then, maybe, [he] would be able to discharge [his] duties.’” 823

29

F.2d at 596-97 (emphasis by Brown court; alterations to last

clause added).

Fourth, the appellants object to the court’s finding that Juror

No. 3’s voir dire responses on the questionnaire were

“deceptive.” 8/16/01 Mem. & Order at 4. They argue first that

the United States Supreme Court’s decision in McDonough

Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 556 (1984),

“requires that there be a showing that the juror failed to answer

honestly a material question arising during voir dire and that a

correct response would have provided a valid basis for a

challenge for cause.” Br. of Appellants 46. The appellants’

reliance on McDonough Power Equipment is misplaced. In that

case the Supreme Court reversed a Tenth Circuit decision that

ordered a new trial in a personal injury case because a juror gave

a “mistaken, though honest response to a question” regarding

injuries suffered by family members.15 464 U.S. at 555. The

Court concluded that “to obtain a new trial” based on a juror’s

voir dire misstatement, a party must “show that a correct

response would have provided a valid basis for a challenge for

cause.” Id. at 556. Here the judge did not rely on the voir dire

misstatements as a basis for dismissal but only to explain, in

part, why he did not credit Juror No. 3’s assurance that he could

continue to deliberate notwithstanding evidence to the contrary.

The appellants also assert the trial court’s “deceptive”

finding is unsupported but the record belies this claim. Adams’s

15

When asked whether he or “any members of [his] immediate

family sustained any severe injury . . . whether it was an accident at

home, or on the farm or at work that resulted in any disability or

prolonged pain and suffering,” 464 U.S. at 550 (ellipsis added), the

juror neglected to mention an injury his son suffered in a truck

explosion because he “apparently believed that his son’s broken leg

sustained as a result of an exploding tire was not such an injury,” id.

at 555.

30

testimony regarding his conversation with Juror No. 3 supports

the judge’s findings that, contrary to his voir dire responses,

Juror No. 3 abused alcohol, handled a gun, lived in a dangerous

neighborhood and had received mental health treatment.

According to Adams, Juror No. 3 disclosed to Adams that he (1)

“used to drink real bad,” “really hit that bottle” and “had a

problem” before he quit drinking 13 years earlier, 7/25/01am Tr.

15; (2) was “on trazodone,” which is “used to treat depression,”

id. at 19-20; (3) “used to have a ‘thing,’” meaning a .44 magnum

revolver, id. at 16; and (4) had the revolver because he “lived in

a real bad neighborhood, and he had been robbed at gunpoint,”

id. Further, the testimony of Juror No. 3 himself confirmed each

of these facts. See id. at. 47-49.16

Fifth, the appellants argue summarily that, even if there was

good cause to dismiss Juror No. 3, the court should have

declared a mistrial rather than proceed with jury deliberations.

We find no error in the judge’s decision to continue. As we

stated in United States v. Harrington, 108 F.3d 1460 (D.C. Cir.

1997): “Rule 23(b) explicitly and without reservation assigns the

stop/go decision to the discretion of the trial court . . . .” 108

F.3d at 1472. Having already concluded the judge acted within

his discretion in dismissing Juror No. 3 for cause, we perceive

no abuse of discretion in his decision to continue with an 11-

16

The appellants attack, in particular, the judge’s determination

that Juror No. 3 had misrepresented his use of mental health drugs,

asserting he admitted to taking trazodone only since his visit to the

V.A. Hospital the Thursday before he was dismissed. Juror No. 3,

however, testified that the medication had “been prescribed for [him]

by the mental hygiene unit,” with no date specified, 7/25/01am Tr. 48,

and Adams testified that security personnel at the V.A. Hospital knew

Juror No. 3 by name and that he “learn[ed] from speaking with

[them]” that Juror No. 3 was “someone who had visited that part of the

hospital, the mental hygiene unit, on prior occasions as a patient,” id.

at 18.

31

member jury, especially given the trial’s length and complexity.

See id. (noting Advisory Committee notes to Rule 23 suggest if

trial is “a relatively short and simple one . . . , a trial court

‘might well’ decide that a mistrial is appropriate, while for

longer and more complex trials courts would be ‘more likely’ to

decide against a mistrial” (quoting Fed. R. Crim. P. 23 Advisory

Comm. note to 1983 amendments)).

Finally, the appellants assert that the judge’s and Adams’s

ex parte contacts with the jurors violated the appellants’ rights

under the United States Constitution’s Fifth Amendment Due

Process Clause and Sixth Amendment’s Confrontation Clause

and under Federal Rule of Criminal Procedure 43. We reject

this argument as well. We are inclined to agree with the

government that these claims are governed by plain error review

because, although defense counsel sought to examine the jurors

further, they made no objection specifically based on the ex

parte nature of the communications between the jurors and

Adams and the judge. See United States v. Yarborough, 400

F.3d 17, 20 (D.C. Cir. 2005) (because defense counsel did not

object to “judge’s ex parte conversation with the deliberating

jurors,” “[p]lain error is . . . the standard of review” (citing

United States v. Lancaster, 968 F.2d 1250, 1254 (D.C. Cir.

1992))). Nonetheless, even if defense counsel can be said to

have properly objected, we find no reversible error. “‘[T]he

mere occurrence of an ex parte conversation between a trial

judge and a juror does not constitute a deprivation of any

constitutional right. The defense has no constitutional right to

be present at every interaction between a judge and a juror, nor

is there a constitutional right to have a court reporter transcribe

every such communication.’” United States v. Gagnon, 470 U.S.

522, 526 (1983) (quoting Rushen v. Spain, 464 U.S. 114, 125-26

(1983) (Stevens, J., concurring in judgment)) (alteration in

original). Counsel’s presence is necessary only if required “to

ensure fundamental fairness or a ‘reasonably substantial . . .

opportunity to defend against the charge.’” Id. at 527 (quoting

32

Snyder v. Massachusetts, 291 U.S. 97, 105-06 (1934)). Because

the ex parte conversations were unrelated to the merits of the

case and their substance was reported in open court in the

presence of the defendants and their counsel, they did not

constitute error. In addition, even if the ex parte conversations

with the judge were error, they were harmless and do not

warrant reversal. See United States v. Gordon, 829 F.2d 119,

127 & n.9 (D.C. Cir. 1987) (violation of statutory and

constitutional rights to be present during jury contact “subject to

the harmless error analysis.” (citations omitted)); cf. United

States v. McDonald, 933 F2d 1519, 1525 (D.C. Cir. 1991) (ex

parte communication between judge and juror not plain error

where defense counsel made no objection and hearing was held

at which trial court made full disclosure). This is particularly so

as to Juror No. 3’s conversations as his subsequent dismissal

from the jury ensures that his ex parte contacts with the court

did not taint the verdicts. Cf. United States v. Doherty, 867 F.2d

47, 72 (1st Cir. 1989) (judge’s ex parte conversation with

subsequently dismissed juror “could not have influenced the

excused juror’s further deliberations, for there were none; nor

could it have influenced the remaining eleven jurors, because the

excused juror had no further contact with them”); United States

v. Lustig, 555 F.2d 737, 745-46 (9th Cir. 1977) (finding no

prejudice from judge’s ex parte interview with juror

subsequently dismissed and replaced by alternate).

III. Judicial Bias

The appellants also seek reversal of their convictions on the

ground that the district court’s conduct of the trial proceedings

displayed what they characterize as “an extensive pattern of bias

and lack of even-handedness that infected the entire nine-month

proceeding” and that the judge’s obvious bias prevented them

from receiving a fair trial. Br. of Appellants 51. We disagree.

“The threshold for a showing of bias is high,” United States v.

Edmond, 52 F.3d 1080, 1099 (D.C. Cir.) (per curiam), cert.

33

denied, 516 U.S. 998 (1995), and we do not believe the

appellants have reached it because the conduct they cite does not

“reveal such a high degree of favoritism or antagonism as to

make fair judgment impossible.” Liteky v. United States, 510

U.S. 540, 555 (1994).17 In asserting bias, the appellants identify

three broad categories of conduct. We address each in turn.

First, the appellants object to discrete, allegedly biased

rulings by the trial judge which (1) set the timing of disclosure

of exculpatory material under Brady v. Maryland, 373 U.S. 83

(1963), and of witness statements to the government under the

Jencks Act, 18 U.S.C. § 3500; (2) denied defense motions to

strike jurors for cause; (3) overruled defense objections to

hearsay and opinion testimony of government witnesses and

excluded as hearsay testimony of a defense witness; and (4)

limited the scope of defense cross-examination. But “judicial

rulings alone almost never constitute a valid basis for a bias or

partiality motion.” Liteky, 510 U.S. at 555 (citing United States

v. Grinnell Corp., 384 U.S. 563, 583 (1966)). “Almost

invariably, they are proper grounds for appeal, not for recusal.”

Id. “In and of themselves (i.e., apart from surrounding

comments or accompanying opinion), they . . . can only in the

rarest circumstances evidence the degree of favoritism or

antagonism required when no extrajudicial source is involved.”

Id. The isolated unfavorable rulings the appellants cite in the

17

Liteky “was a statutory case, where the claim was that the trial

judge should have recused himself.” United States v. Donato, 99 F.3d

426, 434 (D.C. Cir. 1996). Here, as in Donato and the other two

decisions from this circuit that we discuss below—United States v.

Edmond and United States v. Logan, 998 F.2d 1025 (D.C. Cir.), cert.

denied, 510 U.S. 1000 (1993)—the claim is not that the judge should

have recused himself but that he displayed such bias that the

appellants did not receive a fair trial. Nonetheless, the same general

principles apply. See, e.g., Donato, 99 F.3d at 435, and Edmond, 52

F.3d at 1101 (both invoking Liteky).

34

course of a trial proceeding lasting some nine months do not

constitute such “rare circumstances.” Nor does the fact that the

judge may have ruled in favor of the government more often

than he did in favor of the defense, as the appellants contend, by

itself show bias. See Edmond, 52 F.3d at 1100 (“Appellants do

not claim that a greater percentage of government requests than

defense requests were granted, but even if that were the case

such a disproportion would be insufficient by itself to establish

bias.” (citing United States v. Pisani, 773 F.2d 397, 402 (2d Cir.

1985) (“[A] trial judge must rule on countless objections, and a

simple numerical tally of those sustained and overruled, one

which here favors the government, is not enough to establish

that the scales of justice were tipped against a defendant.”)).

The record here does not show that the judge did so

disproportionately or unjustifiably.

Second, the appellants cite allegedly biased procedural

decisions by the trial judge during both voir dire and trial.

Initially, we note that the appellants have not appealed any of

the individual procedures as error by itself but instead assert that

cumulatively (and in conjunction with rulings and comments)

they show impermissible bias. We do not agree.

The appellants object to a number of procedures the judge

adopted during voir dire: empaneling an anonymous jury,

having the United States Marshals Service transport jurors to the

courthouse from undisclosed locations, moving the defendants

to distant sites, refusing to permit the defendants to change from

prison garb to civilian dress on the first day of jury selection and

limiting defense counsel’s interrogation of prospective jurors.

Addressing the last first, “‘the trial court retains great latitude in

deciding what questions should be asked on voir dire’” and his

“administration of this process ‘is not easily subject to appellate

review.’” Edmond, 52 F.3d at 1094-95 (quoting Mu’Min v.

Virginia, 500 U.S. 415, 424 (1991)). We will not second-guess

the judge’s decision here to accelerate the jury selection process

35

by abbreviating questioning. As for the first three procedures,

such precautionary steps to safeguard the jury are often taken in

cases such as this involving allegations of racketeering, violence

and, especially, witness or juror tampering. Cf. Holbrook v.

Flynn, 475 U.S. 560, 570-71 (1986) (finding no significant

prejudice in courtroom security force consisting of “four

uniformed state troopers, two Deputy Sheriffs, and six

Committing Squad officers”); Edmond, 52 F.3d at 1091

(upholding use of anonymous jury where defendants were “the

primary participants in a large-scale criminal organization that

distributed massive amounts of cocaine in Washington, D.C.,

and used violent acts to achieve its goals,” “had the capacity to

harm jurors” and “faced penalties that are among the harshest

the law can impose” and the prosecution “attracted substantial

pretrial publicity that the District Court understandably expected

to continue throughout the trial”);18 United States v. Darden, 70

F.3d 1507, 1532-34 (8th Cir. 1995) (upholding anonymous jury,

large number of security personnel in courtroom, two

magnetometers at courtroom entrance, inspections of defense

counsel’s belongings, assembling jury in secret location,

transporting jurors and defendants to and from courthouse in

U.S. Marshal vans and using armed guards along street, convoy

of police vehicles, helicopter surveillance and rooftop snipers).

Further, the record indicates that each of the measures taken by

18

In Edmond, the court stated that an anonymous jury is

“warranted upon a showing of ‘some combination’ of five separate

factors”: (1) “the defendant’s involvement in organized crime, (2) the

defendant’s participation in a group with the capacity to harm jurors,

(3) the defendant’s past attempts to interfere with the judicial process,

(4) the potential that, if convicted, the defendant will suffer a lengthy

incarceration and substantial monetary penalties, and (5) extensive

publicity that could enhance the possibility that jurors’ names would

become public and expose them to intimidation or harassment.” 52

F.3d at 1091 (quoting United States v. Ross, 33 F.3d 1507, 1520 (11th

Cir. 1994)).

36

the district court was motivated by legitimate safety concerns.

See 9/27/00am Tr. 181-82 (anonymous jury necessary to protect

jurors although court was “concerned” about its effect on jury);

11/13/00am Tr. 49 (“events since the last motions hearing”

justified safety concerns generally and jury transport in

particular); 11/17/00pm Tr. 19-21 (testimony of Deputy Marshal

Adams that distant detention was necessitated by “security

concerns” he was “not authorized to disclose”). Finally, we

come to the judge’s directive that the defendants were to remain

in their prison attire if they wished to be present in the

courtroom while the jurors completed their questionnaires on the

first day of voir dire. See 11/15/00am Tr. 4. Although we

discern no explanation for this requirement in the appellate

record, we likewise find no indication it was motivated by bias.19

With regard to the trial itself, the appellants object in

particular to restrictions the court imposed on defense counsel’s

use of testimony of government witnesses, such as limiting

“collateral impeachment” (for bias, prejudice, motive,

inconsistent statements, etc.) to one defense counsel per witness,

2/6/01am Tr. 4-5; permitting only one defense counsel to argue

each objection at the bench, 2/14/01pm Tr. 17; and imposing

short time limits on defense counsel’s cross-examination of two

witnesses, 1/22/01pm Tr. 48-49, 4/26/01am Tr. 34-35. “[A]

district judge has wide discretion in monitoring the flow of a

criminal trial.” United States v. Donato, 99 F.3d 426, 434 (D.C.

Cir. 1996). It is plain that the challenged restrictions (imposed,

19

The appellants did not argue in their briefs that the attire

requirement violated their constitutional right to due process, see

Estelle v. Williams, 425 U.S. 501 (1976), although in arguing that the

prison garb requirement manifested bias, they did cite to Estelle to

support their assertion that “[t]he defendant’s appearance in jail garb,

it has long been recognized, can have a devastating effect on the jury,”

Br. of Appellants 58 & n.143.

37

in the main, outside the jury’s presence) were attempts to

exercise this discretion in order to conduct a lengthy, complex

trial in an orderly, efficient manner, avoiding to the extent

possible repetitious and irrelevant testimony. See 2/06/01am Tr.

5 (collateral impeachment rule designed to avoid repetition);

2/14/01pm 17 (regarding one-counsel-per-objection policy,

explaining judge did not “want everybody up here at the bench”

and if non-arguing counsel had something he wanted co-counsel

“to impart,” he should “whisper it in her ear or his ear”);

1/22/01pm Tr. 49 (regarding 10-minute limit for Martin’s

counsel, judge observed that witness (“the first witness of what

is going to be a long trial”) had given only “summary

testimony” and “most of what [counsel was] interrogating about

. . . has nothing to do with the scope of his direct

examination”20); 4/26/01am Tr. 34, 35 (regarding 15-minute

limit for Hill’s counsel, judge noted counsel’s cross-examination

of hearsay witness related to what happened rather than what

witness heard and was “delaying the proceeding with largely

irrelevant and protracted examination”). While these attempts

to control the trial may have seemed sharp and constraining at

times, they do not manifest bias.

This brings us to the third alleged basis for finding bias:

negative comments by the trial judge. As examples, the

appellants point to a series of comments made during voir dire

that, to them, manifested the judge’s belief that defense counsel

was attempting to disqualify qualified witnesses. See, e.g.,

11/29/00pm Tr. 37 (counsel’s function is not “[t]o badger a

prospective juror into giving answers that would disqualify

her”); id. at 38 (“[S]ome counsel are seriously encroaching upon

improper voir dire. I observe again, your function is not to

20

In fact, the judge permitted Martin’s counsel to continue cross-

examination beyond the limit. See Br. of Appellants 77 n.208;

1/23/01am Tr. 5.

38

intimidate the prospective juror into giving an answer that you

hope will operate to disqualify that juror.”); 11/30/00pm Tr. 47

(characterizing counsel’s question as “inappropriate”);

12/04/00am Tr. 73 (telling counsel he was “arguing with the

juror”); 12/05/00pm Tr. 39 (counsel’s questions “invite[d]

[prospective juror] to take advantage of the possibility of being

excused for this trial by demonstrating bias or prejudice”);

12/05/00pm Tr. 46-47 (telling counsel he was “trying to

deliberately force a juror into disqualifying himself” and had

“made it perfectly clear that [counsel] ha[d] no desire to have

him here, even though he has indicated that he is perfectly

capable of fulfilling his obligations as a juror”). While some of

these utterances may have been “impolitic,” as the appellants

assert, they appear to reflect the judge’s genuine (and not

altogether groundless) perception that defense counsel was

overzealous in questioning specific jurors whom they considered

unfavorable to the defense case. As such, they were legitimate

attempts to control defense counsel and prevent their abuse of

voir dire, however they may have been perceived by defense

counsel. Thus, they do not of themselves establish judicial bias.

See Donato, 99 F.3d at 434 (“It is well within [the trial judge’s]

discretion to rebuke an attorney, sometimes harshly, when that

attorney asks inappropriate questions, ignores the court’s

instructions, or otherwise engages in improper or delaying

behavior. Sharp words spoken by a trial court to counsel do not

by themselves establish impermissible bias.”). Nor do they do

so in combination with judicial comments during the trial.

The appellants complain that the district court improperly

“demeaned” and “threatened” defense counsel during trial when

he cut them off and instructed them to be seated, see, e.g.,

2/01/01am Tr. 63; referred to (and admonished against)

“frivolous” objections, see, e.g., 1/24/01am Tr. 18, 2/5/01pm Tr.

60, 2/14/01pm Tr. 39; suggested they were attempting to delay

the trial or cause a mistrial, see, e.g., 2/5/01pm Tr. 58, 60;

warned of possible contempt citations, see, e.g., id. at 57-58; and

39

in fact cited two defense lawyers for contempt, 2/06/01am Tr.

90; 6/21/01am Tr. 29 (although he vacated the citations after the

trial). The appellants argue that these remarks, taken together,

reveal such bias on the part of the trial judge that they could not,

and did not, receive a fair trial. Again, we disagree.

As the Supreme Court has observed:

[J]udicial remarks during the course of a trial that are

critical or disapproving of, or even hostile to, counsel,

the parties, or their cases, ordinarily do not support a

bias or partiality challenge. They may do so if they

reveal an opinion that derives from an extrajudicial

source; and they will do so if they reveal such a high

degree of favoritism or antagonism as to make fair

judgment impossible. . . . Not establishing bias or

partiality, however, are expressions of impatience,

dissatisfaction, annoyance, and even anger, that are

within the bounds of what imperfect men and women,

even after having been confirmed as federal judges,

sometimes display. A judge’s ordinary efforts at

courtroom administration—even a stern and

short-tempered judge’s ordinary efforts at courtroom

administration—remain immune.

Liteky, 510 U.S. at 555-56 (emphasis in original). The judge’s

comments during the trial did not reach a level of hostility that

prevented a fair trial. Like those during voir dire, the trial

comments reflect the judge’s attempt to exercise his discretion

to control the trial. That they may be critical or even harsh does

not demonstrate reversible bias. See Edmond, 52 F.3d at 1101

(“Several supposedly hostile remarks (such as, for example, the

judge’s instruction to counsel that ‘nobody is stopping you

[from asking questions of a witness], as long as you do it

properly’) ‘involved sustaining objections, denying of motions

and ordering the rephrasing of questions to witnesses,’ United

States v. Logan, 998 F.2d 1025, 1029 (D.C. Cir.), cert. denied,

40

510 U.S. 1000 (1993), and were squarely within the District

Court’s discretion in controlling the conduct of the trial.”); id. at

1102 (“[T]he judge’s statement on three occasions that counsel

was ‘in contempt of court,’ fall[s] within the judge’s discretion

to prevent improprieties during the trial and to ‘rebuke counsel

for improper behavior.’” (quoting Logan, 998 F.2d at 1029)

(citations omitted)).

There are other reasons as well to reject the appellants’

claims that the judge’s comments reflected reversible bias.

First, the cited utterances were aimed at defense counsel’s

conduct and not at the defendants themselves or at the merits of

the case. See id. at 1101 (“‘[R]eversal is not mandated where

. . . rebukes of defense counsel reflected not upon the merits of

the case but rather on the way it was being handled.’” (quoting

United States v. DiTommaso, 817 F.2d 201, 220 (2d Cir. 1987))

(ellipsis in original). Second, most of the comments —including

all of the references to contempt—were uttered outside the

jury’s hearing. See id. at 1102 (“We agree with the First and

Second Circuits, that ‘[e]ven if unwarranted, a judge’s

reprimand of counsel furnishes no basis for reversal if made

outside of the jury’s presence.’” (quoting DiTommaso, 817 F.2d

at 221; citing Harris v. United States, 367 F.2d 633, 636 (1st

Cir. 1966), cert. denied, 386 U.S. 915 (1967)). Finally, the

impact of these isolated remarks seems greatly reduced when

viewed in relation to the length of the six-month long trial. See

id. (“Even if one were to conclude—which we do not—that any

of the challenged remarks were themselves prejudicial, the

impact on the jury of such a small number of instances as are

cited here would have been minimal or lost in the course of the

lengthy trial.” (citations omitted)). In these respects, the judge’s

remarks here differ significantly from the judicial comments we

concluded required reversal in United States v. Donato.

In Donato, the court offered two bases to distinguish the

judge’s conduct there from what occurred in United States v.

41

Edmond and United States v. Logan, in which we rejected bias

challenges. The same distinctions hold here. First, the court

observed in Donato that the “negative comments” “were more

concentrated, frequent, and critical than in either of those cases.”

99 F.3d at 435. With regard to concentration, the court observed

that the “relative brevity” of the two-week trial there “ma[de] it

more likely that the judge’s negative comments colored the

entire trial” than they did in Edmond, in which the trial lasted

three months, or Logan, in which the trial was “‘long and

arduous.’” Id. (quoting Logan, 998 F.2d at 1033). The

proceeding here lasted some nine months, six of them consumed

by the trial itself. To illustrate the frequent and negative nature

of the judge’s comments in Donato, the court quoted extensively

from defense counsel’s examination of two crucial

witnesses—including the defendant—during which the trial

judge uttered 65 negative remarks, 55 of them within the jury’s

hearing. The transcript of this trial shows no comparable

frequency. Nor do the comments the appellants cite approach

the belittling quality of the judge’s remarks in Donato. See

Donato, 99 F.3d at 435-37. Second, the Donato court

distinguished Edmond and Logan on the ground that in each

case “this court found it significant that the challenged remarks

of the trial judge had been directed at the attorneys rather than

at the defendants themselves,” while in Donato the defendant

herself came under heavy fire. Id. at 438 (citing Edmond, 52

F.3d at 1101; Logan, 998 F.2d at 1029). Here, as in Logan and

Edmond, the negative comments the district judge uttered in the

jury’s presence were limited to counsel and did not extend to the

defendants themselves.

In sum, considering the challenged rulings, procedures and

comments together in the context of a long and difficult trial, we

are not persuaded that “‘the judge’s behavior was so prejudicial

that it denied [the defendant] a fair, as opposed to perfect, trial.’”

Logan, 998 F.2d at 1029 (quoting United States v. Pisani, 773

F.2d 397, 402 (2d Cir. 1985)) (alteration in original); see

42

Edmond, 52 F.3d at 1099 (“A finding of judicial bias must be

based on ‘an abiding impression left from a reading of the entire

record,’ not from particular comments or rulings considered in

isolation” (quoting Offutt v. United States, 348 U.S. 11, 12

(1954); citing United States v. Twomey, 806 F.2d 1136, 1140

(1st Cir. 1986)). Accordingly, we reject the appellants’

allegation of reversible bias.

IV. Confrontation Clause Challenges

“In all criminal prosecutions, the accused shall enjoy the

right . . . to be confronted with the witnesses against him . . . .”

U.S. CONST. amend. VI. Appellants Sweeney, Carson, and

Coates contend that their rights under this clause were violated

when the district court allowed Special Agent Vincent Lisi to

testify about statements made by Robert “Butchie” Smith.

Before trial, the government moved to admit, through law

enforcement officers and other witnesses, statements made by

persons allegedly murdered by members of the K-Street

organization. Among the statements were Smith’s. Smith was

a main target of the initial investigation into the Southwest

organization in 1995. Law enforcement officers thought he was

a major marijuana supplier in the area. During a June 1996

undercover operation, Special Agent Lisi and other officers

filmed Smith selling drugs to a cooperating witness. The

officers arrested Smith on December 5, 1996, took him to the

FBI’s offices, and showed him the video tape. Smith then

waived his Miranda rights and expressed his willingness to talk

with Special Agent Lisi about various crimes in the Southwest

area.

Smith told Special Agent Lisi about his interactions with

numerous conspiracy members and his conversations with

Sweeney. He first detailed his drug sources and drug operation.

Smith explained that he normally supplied marijuana to three

individuals who in turn sold it on the street. He did this to

43

insulate himself from detection. Smith also sold marijuana

directly to Coates, Hill, and Sweeney, among other conspiracy

members. Smith described the murders and other violent crimes

Sweeney and his associates committed. He then entered into a

plea agreement with the government and was released a day

after his arrest in order to give the impression that he was not a

cooperating witness. He later returned to court and pled guilty

to conspiracy to possess and distribute narcotics.

During his initial detention and then while acting as an

informant for the government, Smith told Special Agent Lisi of

the attempted murder of Michael Jones, the hunt for Kenny

Adams, the kidnapping of Anthony Pryor, the murder of Donnell

Whitfield, and the murders of Alonzo Gaskins, Darnell Mack,

and Melody Anderson. Smith said that he learned of these

events and the details surrounding them from his conversations

with Sweeney. In support of admitting Smith’s and Sweeney’s

statements, the government adduced the following evidence.

While being detained by the Prince George’s County,

Maryland, Police Department for the triple murders of Gaskins,

Mack, and Anderson, Sweeney began to suspect that Smith had

divulged information to the authorities. Prince George’s County

Police Officers apparently aroused Sweeney’s suspicions when

they included in their statement of probable cause, filed at

Sweeney’s initial appearance, information about the triple

murders, information attributed to a confidential FBI source.

The probable-cause statement explained that Sweeney had told

this informant about the murders and that only the investigators

and perpetrators of the offense knew the information.

According to James Montgomery, whose testimony fills in

the remaining details, Sweeney asked Carson and Montgomery

to visit him while in jail. Montgomery did not go, but Carson

visited Sweeney and reported his conversation to Montgomery.

Carson asked Sweeney whom he told about the triple murders;

Sweeney said that he told Smith about it and that Smith was

44

cooperating with the FBI.21 Carson explained to Montgomery

that without Smith the government would have no case against

Sweeney for the triple murders.

In the following months, Carson and Montgomery planned

and attempted several times to track down Smith and kill him.

Montgomery and Carson looked for Smith whenever they

happened to visit an area Smith frequented and would

sometimes drive through those areas for the sole purpose of

tracking him down. They spotted Smith several times in the

open but could “do nothing to him in front of . . . everybody.”

On one occasion, Carson and Montgomery found Smith on Half

Street, Southwest. They hurried to Carson’s house, where

Carson retrieved his sweat suit, gun, and gun belt, and then took

a circuitous route back to Half Street. Carson ran up an alley to

catch Smith from behind, while Montgomery waited in the car,

but the tactic proved unsuccessful.

On June 16, 1997, while Montgomery was selling marijuana

on Second Street, Carson approached Montgomery, took his car

keys, and left in Montgomery’s car. Some time later,

Montgomery learned that Smith had been shot on Half Street.

Montgomery then rode a bicycle to the corner of Half and O

Streets. There he heard that Smith had been killed, which,

according to Montgomery, came as a great relief, because

he—like the other conspirators—was concerned that Smith was

an informant. After learning of Smith’s death, Montgomery

rode back to Second Street, Southwest. Carson returned later

that evening in Montgomery’s car, parking it in an alley. As

21

Other witnesses, who were incarcerated with Sweeney at the

time, confirmed that he had identified Smith as an informant.

Reginald Switzer, for example, overheard Sweeney say that he could

not believe Smith was “snitching.” And Sweeney told Charles Bender

that Smith was “snitching” and that “family or not, he has got to get

dealt with.”

45

soon as Montgomery saw Carson, he said “you know them

peoples got hit,” to which Carson responded “yeah, I know. . .

. [W]e’re all right.” Montgomery asked if Carson knew about

whom he was talking. Carson said “trust me, we’re all right,”

and gave Montgomery his keys back. Carson then instructed

Montgomery to “stay from up Half Street” with his car “and not

to drive it if [he] didn’t have to.” From a prior experience with

Carson, Montgomery understood Carson’s instruction to be a

warning that someone might identify his car in relation to

Smith’s murder if Montgomery took the car near Half Street.

Relying on this evidence, most of which consisted of

Montgomery’s testimony, the government argued that the

appellants forfeited their Sixth Amendment right to confront

Smith. The Confrontation Clause secures a criminal defendant’s

right to confront witnesses against him through cross-

examination. See, e.g., Delaware v. Van Arsdall, 475 U.S. 673,

678 (1986) (quoting Davis v. Alaska, 415 U.S. 308, 315-16

(1974)); Pointer v. Texas, 380 U.S. 400, 404-05, 406-07 (1965)

(collecting cases); Mattox v. United States, 156 U.S. 237, 244

(1895); see also Crawford v. Washington, 541 U.S. 36, 49, 53-

54, 57 (2004). But a defendant forfeits this right when, through

his misconduct, he causes the witness to be unavailable. United

States v. White, 116 F.3d 903, 911 (D.C. Cir. 1997) (per curiam)

(collecting cases). The government claimed that these

defendants therefore forfeited their rights under the

Confrontation Clause when their coconspirators murdered

Smith, an act in furtherance of the conspiracy and reasonably

foreseeable. It also claimed that Sweeney’s statements to Smith

were admissible as coconspirator statements in furtherance of

the conspiracy.

The appellants objected on several grounds. They disputed

whether a defendant could forfeit his confrontation rights based

on misconduct committed by a coconspirator and whether there

was a factual predicate for such forfeiture and for the

46

admissibility of Sweeney’s statements to Smith. The district

court overruled the objections, finding that “Smith was a co-

conspirator and that the information imparted to Mr. Smith by

Mr. Sweeney was in furtherance of that conspiracy.” As a legal

matter, the court agreed with the government that a defendant

forfeits his right to confront a witness if his coconspirators

caused the unavailability of that witness through misconduct and

if their action was within the scope and in furtherance of the

conspiracy, as well as reasonably foreseeable to conspirators.

The court found that Sweeney “was directly involved in

procuring the absence of . . . Smith as a witness by . . . inducing

a co-conspirator to kill” him, and that “Carson’s murder of

Smith, either alone or in conjunction with others, made [Smith]

unavailable as a witness for the government in this case.”

“[T]hese co-conspirators,” the district court said, forfeited “their

confrontation and hearsay objections to statements about acts in

furtherance of, within the scope and reasonably foreseeable to

all of them.”

Sweeney, Carson, and Coates argue that the district court

erred in concluding that a defendant may forfeit his rights under

the Confrontation Clause and Federal Rule of Evidence

804(b)(6) when a coconspirator’s misconduct causes a witness’s

absence. They also claim the court’s predicate factual

findings—that Carson or some other conspirator caused Smith’s

absence—were clearly erroneous. The district court was

required to find the necessary facts by a preponderance of the

evidence. White, 116 F.3d at 912. We review the court’s legal

conclusions regarding the Confrontation Clause and Rule

804(b)(6) de novo, see United States v. Cherry, 217 F.3d 811,

814 (10th Cir. 2000), and its factual findings for clear error,

White, 116 F.3d at 911 n.2.

Although the Confrontation Clause secures important rights,

those rights are not absolute. The rule has long been that

defendants through misconduct may forfeit their right to

47

confront witnesses against them. See Snyder v. Massachusetts,

291 U.S. 97, 106 (1934), abrogated on other grounds by Malloy

v. Hogan, 378 U.S. 1 (1964); Diaz v. United States, 223 U.S.

442, 452-53 (1912) (quoting Reynolds v. United States, 98 U.S.

145, 158 (1878)); Reynolds, 98 U.S. at 158-59; see also Illinois

v. Allen, 397 U.S. 337, 343 (1970).22 In United States v. White,

we recognized that there is no more extreme “form of

misconduct . . . than the murder of a potential witness” and held

“that a defendant who wrongfully procures the absence of a

witness or potential witness may not assert confrontation rights

as to that witness.” 116 F.3d at 911. This rule rests on “equity”

and “the need for fit incentives.” Id.; see Crawford, 541 U.S. at

62; United States v. Thompson, 286 F.3d 950, 962 (7th Cir.

2002) (collecting sources); Steele v. Taylor, 684 F.2d 1193,

1202 (6th Cir. 1982). A defendant should not be permitted to

gain an evidentiary advantage through “threats, violence or

murder.” White, 116 F.3d at 911; id. at 912; United States v.

Mastrangelo, 693 F.2d 269, 272-73 (2d Cir. 1982); see also,

e.g., Cherry, 217 F.3d at 815. Rule 804(b)(6) of the Federal

Rules of Evidence also excepts from inadmissible hearsay those

statements “offered against a party that has engaged or

acquiesced in wrongdoing that was intended to, and did, procure

the unavailability of the declarant as a witness.” This rule is

necessary, according to the advisory committee notes, in order

“to deal with abhorrent behavior ‘which strikes at the heart of

the system of justice itself.’” Fed. R. Evid. 804(b)(6) advisory

committee’s note (quoting Mastrangelo, 693 F.2d at 273).

Appellants do not dispute any of this. Their quarrel is with

allowing the misconduct of a coconspirator to cause the

22

That Smith’s statements were to Special Agent Lisi, and

therefore likely testimonial, is of no moment. See Crawford, 541 U.S.

at 68. The Supreme Court in Crawford approved the forfeiture-by-

misconduct exception even when out-of-court statements are

testimonial. See id. at 62.

48

forfeiture of a defendant’s right—a subject we address in a

moment—and with the district court’s underlying factual

findings. As to the facts, the district court found that Carson

murdered Smith, “either alone or in conjunction with others,”

and that this “made [Smith] unavailable as a witness for the

government.” Ample evidence supported this finding.

Montgomery testified at length about his and Carson’s activities

leading up to Smith’s murder; their motive for killing Smith;

their ongoing hunt for him; their failed opportunities; Carson’s

use of Montgomery’s car just before Smith’s murder; Carson’s

return after the murder; his acknowledgment of Smith’s murder

and his assurance that they were “all right”; his instruction to

Montgomery not to drive near the murder scene; and

Montgomery’s understanding that Carson meant that, if he did

drive near the scene, observers might identify the car in relation

to the murder. The appellants insist that because the

government offered no eyewitness to Smith’s murder,

Montgomery’s testimony was inherently suspect. But no rule of

law required the government to produce an eyewitness,

assuming there was one despite Montgomery’s and Carson’s

desire to eliminate Smith without anyone watching. The district

court evaluated Montgomery’s credibility and credited his

testimony, and there is no basis for our disturbing the court’s

judgment. See United States v. Scriber, 499 F.2d 1041, 1044 &

n.12 (D.C. Cir. 1974); see also United States v. Lewis, 693 F.2d

189, 193 (D.C. Cir. 1982). It follows that there was a factual

predicate to forfeiture and that Carson has forfeited any rights he

may have had. See White, 116 F.3d at 911; see also Fed. R.

Evid. 804(b)(6).

Sweeney and Coates—not Carson, of course—argue that a

defendant’s forfeiture, either under the Confrontation Clause or

Rule 804(b)(6), cannot result from a coconspirator’s causing a

witness to be absent from trial. Yet the reasons why a defendant

forfeits his confrontation rights apply with equal force to a

defendant whose coconspirators render the witness unavailable,

49

so long as their misconduct was within the scope of the

conspiracy and reasonably foreseeable to the defendant, as it

was here.23 Suppose several individuals enter into a conspiracy,

and, as part of the conspiracy, they agree to kill all potential

witnesses against them. All members of the conspiracy would

be criminally responsible for the resulting murder of a witness,

see Pinkerton v. United States, 328 U.S. 640, 647-48 (1946), and

there is no good reason why the murder should give any of them

an evidentiary advantage, see Blumenthal v. United States, 332

U.S. 539, 557 (1947); 2 WAYNE R. LAFAVE, SUBSTANTIVE

CRIMINAL LAW § 12.2(a), at 267 (2d ed. 2003). That there is no

direct evidence of an explicit agreement to kill adverse

witnesses in this case is of no moment. The evidence was more

than sufficient to infer the existence of such an agreement and

to conclude that Smith’s murder was in furtherance of the

conspiracy and reasonably foreseeable. See Iannelli v. United

States, 420 U.S. 770, 777 n.10 (1975); Interstate Circuit, Inc. v.

United States, 306 U.S. 208, 221 (1939); United States v.

Childress, 58 F.3d 693, 715 (D.C. Cir. 1995) (per curiam).24

23

Sweeney told several people, while he was in jail, that Smith

was “snitching” and that “family or not, he has got to get dealt with.”

Montgomery testified that while in jail Sweeney asked Carson and

him to visit and that after this visit Carson stated that without Smith

the government would have no case against Sweeney. Carson also

related his conversation with Sweeney about Smith being the likely

informant. Carson and Montgomery immediately formulated a plan

to kill Smith. Montgomery also testified that the other conspirators

worried, as did he, that Smith was an informant for the police. And the

government adduced considerable evidence that members of the

conspiracy, including Sweeney and Coates, regularly murdered or

attempted to kill witnesses or informants who could testify against

them.

24

Our conclusion is consistent with the rulings of other circuits.

See Thompson, 286 F.3d at 963-65; Cherry, 217 F.3d at 818. It is also

50

Carson and Coates have additional arguments. They say that

if Smith had been alive, he would not have been permitted to

testify about the statements Sweeney made to him and that the

district court therefore erred in allowing Smith’s statements

(concerning Sweeney’s) to come in against them through

Special Agent Lisi. Their theory is that Smith was not a

coconspirator and that, even if he were, Sweeney’s statements

to him were not in furtherance of the conspiracy. As they see it,

admitting the statements Sweeney made to Smith violated the

Sixth Amendment rule set down in Bruton v. United States, 391

U.S. 123 (1968), that a co-defendant’s out-of-court statements

implicating other defendants are inadmissible when there is no

opportunity to cross-examine the co-defendant.

Statements satisfying the coconspirator non-hearsay rule

under Federal Rule of Evidence 801(d)(2)(E) may be admitted

against co-defendants without violating the Confrontation

Clause. See Bourjaily v. United States, 483 U.S. 171, 182-84

(1987);25 United States v. Mickelson, 378 F.3d 810, 819 (8th Cir.

generally consistent with decisions that have not addressed this issue

directly, but nonetheless recognized that forfeiture by misconduct may

be imputed to a defendant. See, e.g., United States v. Rivera, 412 F.3d

562, 567 (4th Cir. 2005) (discussing Rule 804(b)(6)); Mastrangelo,

693 F.2d at 273-74, cited approvingly in Fed. R. Evid. 804(b)(6)

advisory committee’s note; Olson v. Green, 668 F.2d 421, 429 (8th

Cir. 1982) (recognizing that “someone acting on a [defendant’s] behalf

may waive or forfeit that [defendant’s] right”).

25

Bourjaily relied on Ohio v. Roberts, 448 U.S. 56 (1980), to reach

its conclusion. See 483 U.S. at 182-83. The Supreme Court,

disapproving of the reasoning in Roberts, recently held that to admit

testimonial hearsay, the declarant must be unavailable and there must

have been a prior opportunity for cross-examination. Crawford, 541

U.S. at 62-69. Crawford does not undermine Bourjaily.

Coconspirator statements in furtherance of a conspiracy are not

typically the type that fall within the definition of “testimonial.” The

51

2004); United States v. Shores, 33 F.3d 438, 442 (4th Cir. 1994);

United States v. DeVillio, 983 F.2d 1185, 1193-94 (2d Cir.

1993). “[A] statement by a coconspirator of a party during the

course and in furtherance of the conspiracy” is not hearsay under

Rule 801(d)(2)(E). To admit such statements, the district court

must find by a preponderance of the evidence that “there was a

conspiracy involving the declarant and the nonoffering party,

and that the statement[s were] made ‘during the course and in

furtherance of the conspiracy.’” Bourjaily, 483 U.S. at 175

(quoting Fed. R. Evid. 801(d)(2)(E)); id. at 176; United States

v. Gatling, 96 F.3d 1511, 1520 (D.C. Cir. 1996). We review the

district court’s factual findings for clear error. Gatling, 96 F.3d

at 1521 (citing United States v. Edmond, 52 F.3d 1080, 1110

(D.C. Cir. 1995) (per curiam)).

The district court concluded that Smith was a coconspirator

with Sweeney, Carson, and Coates and that Sweeney’s

statements to him were made during the course of and in

furtherance of the conspiracy.26 Rule 801(d)(2)(E) requires that

the declarant be in a conspiracy with those against whom the

statements are offered. Fed. R. Evid. 801(d)(2)(E); see, e.g.,

Bourjaily, 483 U.S. at 175; Gatling, 96 F.3d at 1520. The

evidence was overwhelming that Sweeney, Carson, and Coates

were coconspirators, and the jury so found. Smith’s status as a

coconspirator, while not essential to admissibility, is

nevertheless relevant to whether Sweeney’s statements were

made during the course of and in furtherance of the conspiracy,

as the rule also requires.

Crawford Court recognized as much. Id. at 56.

26

It was unnecessary to conclude that Smith was a coconspirator

in order to admit Sweeney’s statements. See Bourjaily, 483 U.S. at

175; Gatling, 96 F.3d at 1520; United States v. Beckham, 968 F.2d 47,

51 n.2 (D.C. Cir. 1992).

52

Carson and Coates acknowledge that Smith sold drugs to

members of the conspiracy, including Reginald Switzer, Arthur

Rice, Eric Jones, Vincent Hill, Paul Taylor, Sean Coates, Gary

Price, and William Sweeney. They contend, however, that

Smith’s real drug “operation” involved selling drugs to three

individuals27 not connected to the conspiracy who resold the

narcotics in Southwest Washington, D.C., and that this sporadic

“buyer/seller relationship with some of the defendants” did not

make him a coconspirator. Br. of Appellants 104-05. While the

evidence may not have shown that Smith was a principal

member of the conspiracy or that he had a relationship with

every conspiracy member, neither is required to make him a

coconspirator. See Childress, 58 F.3d at 709-10; United States

v. Tarantino, 846 F.2d 1384, 1392-93 (D.C. Cir. 1988) (per

curiam). Smith had only to agree to enter and “knowingly

participate[] in the conspiracy with the intent to commit the

offense”—in this case distribution and possession of narcotics.

Gatling, 96 F.3d at 1518; Childress, 58 F.3d at 707-08. His

status as a conspirator may “be inferred from circumstantial

evidence,” Gatling, 96 F.3d at 1518, especially from his

“knowing participation in a distribution network,” Childress, 58

F.3d at 710. The district court did not clearly err in drawing

such an inference here.

Smith explained to Special Agent Lisi that although he dealt

primarily with three individuals in an attempt to insulate himself

from exposure, “there were people that he did deal with

personally, some people that he knew.” He directly distributed

marijuana to Sweeney, Coates, and Hill, among other members

of the conspiracy. Montgomery said that he believed Smith was

“supplying marijuana to [K Street] Southwest.” As an example,

he discussed an occasion in which Eric Jones, an acknowledged

27

Carson and Coates state that Smith sold drugs to four

individuals. Special Agent Lisi identified only three.

53

coconspirator, intended to purchase ten pounds of marijuana

from Smith. Although Montgomery was not sure whether Jones

actually obtained that amount from Smith, the fact that Smith

sold drugs to conspiracy members—and that he was always an

available source to them—was supported by Arthur Rice,

another coconspirator. Rice explained that, while Smith may

not have been a major “supplier,” members of the conspiracy

“could go to him and get stuff . . . . I mean he had a lot of it. He

could get his hands on a lot of it.” Rice said that Smith had

supplied or helped him obtain drugs “[m]ore than once.” On

one occasion, Smith gave Rice marijuana to help him get

reestablished in the marijuana business after being released from

jail. Smith helped out coconspirators in other ways. While

Sweeney and Rice were in jail together, Smith sent both of them

money orders. He also helped pay for Rice’s legal

representation when Rice was arrested for the murder of a rival

gang member. See Tarantino, 846 F.2d at 1397 (“[N]ot . . .

every act taken in furtherance of the conspiracy [need be]

illegal.”). It was not clearly erroneous for the district court to

conclude that Smith “knew of the nature and scope of the

conspiracy, joined in its aims, and facilitated its success.” Id. at

1396.

United States v. Morris, 836 F.2d 1371 (D.C. Cir. 1988),

does not, as Carson and Coates insist, command a different

result. Morris merely states the quite unremarkable proposition

“that a buyer-seller relationship” consisting of a couple drug

transactions “does not make out a conspiracy.” Id. at 1374. But

the evidence here is on a different plane altogether. Rice

explained that conspiracy members could go to Smith as they

needed and that Rice in fact had done so “[m]ore than once.” It

is also clear that Smith had an ongoing relationship with

conspiracy members, assisting them and supplying them with

drugs as the occasion arose. Smith may not have been a

principal conspiracy member, but he was a coconspirator

nonetheless.

54

We now turn to Carson and Coates’s claim that Sweeney’s

statements to Smith were not made “during the course and in

furtherance of the conspiracy” and, for that reason, are

inadmissible under Rule 801(d)(2)(E). Sweeney’s statements to

Smith about various crimes committed by conspiracy members

did not further the conspiracy, the argument goes, because they

consisted of “idle chatter,” bragging, or mere narratives of past

events. The appellants are correct, as a general matter, that

statements of that sort are usually not “in furtherance” of a

conspiracy. See Tarantino, 846 F.2d at 1411-12; see also

Edmond, 52 F.3d at 1111. But if the statements “‘can

reasonably be interpreted as encouraging a co-conspirator or

other person to advance the conspiracy, or as enhancing a co-

conspirator or other person’s usefulness to the conspiracy,’”

then the statements further the conspiracy and are admissible.

Edmond, 52 F.3d at 1110-11 (quoting Tarantino, 846 F.2d at

1412); accord United States v. Rivera, 22 F.3d 430, 436 (2d Cir.

1994). Such statements include those that keep a coconspirator

updated “on the status of the business,” motivate a

coconspirator’s “continued participation,” Tarantino, 846 F.2d

at 1412; see also Rivera, 22 F.3d at 436, or provide background

information on key conspiracy members, Edmond, 52 F.3d at

1111 (quoting Tarantino, 846 F.2d at 1413); United States v.

Walls, 70 F.3d 1323, 1327 (D.C. Cir. 1995).

Sweeney’s statements to Smith described various

kidnappings, murders, attempts to intimidate witnesses, and

other acts of violence committed by conspiracy members. What

Sweeney said was not, as these appellants assert, mere narrative

or idle chatter. He was updating Smith on the conspiracy’s

status, motivating his continued participation, and providing him

with background information. For example, Sweeney discussed

with Smith the shootings or attempted shootings of Michael

Jones and Kenny Adams. Both Jones and Adams were going to

testify against members of the conspiracy, and Sweeney detailed

the conspiracy members’ attempts to silence them. Though

55

describing events that had transpired, this information could

have served several functions: to update Smith on eliminated

threats—that is, to give the “all clear”; to remind Smith to keep

an ear open for more threats; to encourage him to weed out other

witnesses against them; and to make sure Smith did not consider

turning against the conspiracy (that is, to motivate his continued

participation). All of this served to further the conspiracy’s

goals of selling drugs and evading capture. Other statements

advanced the conspiracy in another way. Sweeney’s

descriptions of Anthony Pryor’s kidnaping and the triple

murders of Gaskins, Mack, and Anderson updated Smith on the

status of conspiracy members. With an understanding of what

conspiracy members faced, Smith could help protect those

members from law enforcement or other dangers. By protecting

the various components of the conspiracy, Smith naturally

would be advancing the conspiracy.

Because the district court properly found that Sweeney’s

statements were in furtherance of the conspiracy, the statements

were non-hearsay coconspirator statements, admissible under

Rule 801(d)(2)(E) without violating the Confrontation Clause.

V. Convictions under 18 U.S.C. § 1959

All five appellants attack their convictions for violating 18

U.S.C. § 1959, the statute prohibiting violent crimes in aid of

racketeering activity. They contend that § 1959 is facially

unconstitutional because it exceeds Congress’s Commerce

Clause authority. Carson and Coates alternatively argue that

even if the statute is constitutional, the evidence at trial was

insufficient to convict them of violating it.

As relevant here, § 1959 prohibits any person from

“murder[ing], kidnap[ping],” or committing any other “crime of

violence” in exchange for “anything of pecuniary value from an

enterprise engaged in racketeering activity” or to “gain[]

entrance to or maintain[] or increas[e] position” in such an

56

enterprise. Id. § 1959(a). “‘[R]acketeering activity’” is defined

as it is in the RICO statute, id. § 1959(b)(1); see id. § 1961, and

“‘enterprise’” is defined to include any “legal entity, and any

union or group of individuals associated in fact although not a

legal entity, which is engaged in, or the activities of which

affect, interstate or foreign commerce,” id. § 1959(b)(2).

Each defendant was indicted for violating § 1959 by

committing various violent crimes in furtherance of the RICO

conspiracy charged in Count 2.28 Carson, Coates, and Sweeney

were each convicted on three counts of violating § 1959 for their

roles in the triple murders of Alonzo Gaskins, Darnell Mack,

and Melody Anderson. Carson was also convicted of violating

this section for the attempted murder of Ulysses English and the

murder of Chrishauna Gladden. Coates and Sweeney were each

convicted under § 1959 for the attempted murder of Anthony

Pryor. Coates was also convicted for the attempted murder of

Ronald Sowells, and Sweeney for the murder of Donnell

Whitfield. Martin was convicted for the attempted murder of

James Coulter in aid of racketeering.

Relying on United States v. Lopez, 514 U.S. 549 (1995), and

United States v. Morrison, 529 U.S. 598 (2000), the appellants

claim that the statute facially exceeds Congress’s Commerce

Clause authority because § 1959 does not regulate commercial

activity and does not contain a jurisdictional provision requiring

that the prohibited conduct have a connection to interstate

commerce.

28

Although Hill apparently challenges the constitutionality of

§ 1959, it does not appear that the jury found him guilty of violating

that section. He was indicted under § 1959 for the attempted murders

of Anthony Pryor, Kimberly Richardson, and Reggie Jones in aid of

racketeering activity. Only the attempted murder of Anthony Pryor

was submitted to the jury, and it found him not guilty.

57

The government correctly points out that the appellant did

not raise this argument below. “It is the general rule, of course,

that a federal appellate court does not consider an issue not

passed upon below.” Singleton v. Wulff, 428 U.S. 106, 120

(1976). This applies to constitutional and nonconstitutional

challenges alike. See, e.g., Piersall v. Winter, 435 F.3d 319, 325

(D.C. Cir. 2006); Manion v. Am. Airlines, Inc., 395 F.3d 428,

432 (D.C. Cir. 2004); United States v. Baylor, 97 F.3d 542, 543

n.1 (D.C. Cir. 1996); United States v. Badru, 97 F.3d 1471, 1476

(D.C. Cir. 1996).

In any event, it is impossible to see how a statute regulating

conduct within the District of Columbia could exceed

congressional authority under the Commerce Clause. As in the

U.S. Territories, Congress has plenary authority in the District

of Columbia. See U.S. CONST. art. I, § 8, cl. 17; U.S. CONST. art.

IV, § 3, cl. 2; see also, e.g., Binns v. United States, 194 U.S.

486, 491 (1904). Within the District, Congress did not need to

rely on its Commerce Clause authority. Even if there were some

doubt about § 1959’s constitutionality outside the District of

Columbia, “we need not find the language of [§ 1959]

constitutional in all its possible applications in order to uphold

its facial constitutionality.” Griffin v. Breckenridge, 403 U.S.

88, 104 (1971).29

Carson and Coates attack some of their § 1959 convictions

for insufficient evidence. We review sufficiency-of-the-

evidence challenges “in the light most favorable to the

government, drawing no distinction between direct and

29

Section 1959(b)(2) defines “enterprise” in terms of the group’s

effect on interstate commerce. But the appellants do not claim that the

K-Street gang had no such effect. Their argument is instead that

§ 1959 exceeds Congress’s Commerce Clause authority because the

provision does not require that each act of violence affect interstate

commerce.

58

circumstantial evidence, and giving full play to the right of the

jury to determine credibility, weigh the evidence and draw

justifiable inferences of fact.” United States v. Dykes, 406 F.3d

717, 721 (D.C. Cir. 2005) (quoting United States v. Foster, 783

F.2d 1087, 1088 (D.C. Cir. 1986)) (internal quotation mark

omitted). If “‘any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt,’” the

conviction must be affirmed. Id. (quoting United States v.

Arrington, 309 F.3d 40, 48 (D.C. Cir. 2002)).

Section 1959 requires a jury to find two elements in

addition to the violent criminal activity. The first is “an

enterprise engaged in racketeering activity.” 18 U.S.C.

§ 1959(a). The second is that a defendant committed the violent

crime with one of three motives: (1) “as consideration for . . .

anything of pecuniary value” from such an enterprise, (2) “as

consideration for a promise . . . to pay” something of value from

such an enterprise, or (3) “for the purpose of gaining entrance to

or maintaining or increasing position in an enterprise engaged in

racketeering activity.” Id. This third element—the only one at

issue here—may be shown if “the defendant committed his

violent crime because he knew it was expected of him by reason

of his membership in the enterprise or that he committed it in

furtherance of that membership.” United States v. Concepcion,

983 F.2d 369, 381 (2d Cir. 1992); accord United States v. Tse,

135 F.3d 200, 206 (1st Cir. 1998); United States v. Fiel, 35 F.3d

997, 1004 (4th Cir. 1994). Carson and Coates do not contest the

jury’s finding that the K-Street enterprise was one engaged in

racketeering activity.30 Instead, they contend that there was

30

“‘[R]acketeering activity’” is defined by reference to 18 U.S.C.

§ 1961. Id. § 1959(b)(1). That statute defines such activity to include

“dealing in a controlled substance or listed chemical (as defined in

section 102 of the Controlled Substances Act), which is chargeable

under State law.” 18 U.S.C. § 1961(1)(A). The enterprise here

regularly engaged in, among other things, the sale of marijuana, a

59

insufficient evidence that their violent crimes were done in order

to maintain or increase their positions in that enterprise.

The subject of Carson’s claim is his § 1959 conviction for

the shooting of Ulysses English. On the morning of June 26,

1994, several people witnessed Carson shoot English while

English sold drugs on K Street. English apparently associated

with the 58th-Street crew, a rival of the K-Street organization.

Before English’s shooting, Carson informed Montgomery that

he “was almost certain that [English] had told Keith Holmes”

and other people from 58th Street, Southeast, “where [Carson’s]

mother live[d].” At trial Montgomery explained the significance

of this: gang members generally kept this type of information

secret to protect themselves and their families from rivals. The

fact that people from 58th Street knew this information

concerned both Carson and Montgomery, who worried that

something might happen to Carson or his family. Carson told

Montgomery to keep an eye out for English and to “hit him” if

he saw “him in a good position.” On the day English was shot,

Carson approached Montgomery, who was selling marijuana,

and told him that “something was about to happen.” Not long

after this, at least two people saw Carson shoot English and run

off.

Carson argues that the shooting of English was done out of

concern for Carson’s safety, that it was “unrelated to possession

with intent to distribute or distribution of drugs,” and that it was

therefore not done to maintain or increase his position in the

enterprise. Br. of Appellants 128. Viewed in the light most

favorable to the government, the evidence proved that English

was a member of a rival organization battling the K-Street

enterprise and that English had potentially put Carson and his

controlled substance. See, e.g., United States v. Feliciano, 223 F.3d

102, 119 (2d Cir. 2000) (quoting, inter alia, United States v. Goodwin,

141 F.3d 394, 399 (2d Cir. 1997)).

60

family in danger. Threatened by a rival gang member, Carson

took the action that “was expected of him by reason of his

membership.” Concepcion, 983 F.2d at 381. It follows that a

reasonable jury could have inferred that Carson shot English to

maintain his position in the K-Street organization. This

conclusion gains more support from evidence that the K-Street

organization intimidated, threatened, or killed people or groups

who threatened it or its members. Carson’s shooting of English

could have been “in part at least in furtherance of the

enterprise’s policy of treating affronts to any of its members as

affronts to all, of reacting violently to them and of thereby

furthering the reputation for violence essential to maintenance

of the enterprise’s place in the drug-trafficking business.”

United States v. Tipton, 90 F.3d 861, 891 (4th Cir. 1996). The

jury also could have determined that Carson shot English to

maintain or increase his own reputation as an enforcer in the

enterprise. The evidence showed that Carson frequently carried

out violent crimes against those who threatened the organization

or its members.

The subject of Coates’s claim is the triple murders of

Gaskins, Mack, and Anderson. The murders resulted from a

robbery that went sour. After Carson and Sweeney saw Gaskins

win $50,000 in Las Vegas, Carson, Sweeney, and Montgomery

discussed robbing Gaskins of his winnings and using the money

to purchase guns to aid them in their dispute with members of a

rival gang and to supplement the slow-down in marijuana sales.

Gaskins had returned to his home in Temple Hills, Maryland.

Carson, Sweeney, and Montgomery approached the house to

commit the robbery, but did not see Gaskins’s car and did not

know whether he was inside. In light of this, they decided to

pick up Coates, who knew Gaskins, gambled at his house on

occasion, and could enter the house to ensure that Gaskins was

there. When they returned to Gaskins’s house with Coates, they

saw Gaskins and Mack leave with two women. The four

defendants left for Montgomery’s mother’s house, made masks

61

to cover their faces, stole a license plate to put on the rental van

they were using, and returned to Gaskins’s house. Gaskins

arrived with Mack and the two women. The four appellants

circled around to the back of the house and parked the van in the

parking lot. Montgomery and Sweeney jumped out of the van

and rushed up to Gaskins’s place. Coates, who was unarmed,

remained in the van. As Gaskins, Mack, and the two women

entered the house, Sweeney, with a gun, and Montgomery, with

a stun gun, rushed in, pushing everyone inside except Anderson

(one of the women), who remained outside. Gaskins reached for

something and Sweeney shot him. Sweeney then shot Mack and

fled the house, shooting Anderson on his way out.

Like Carson, Coates contends that there was insufficient

evidence that his involvement in the triple murders was for the

purpose of maintaining or increasing his position in the

enterprise. He argues that he did not know of, or share in, the

other appellants’ plan to rob Gaskins in order to buy weapons

for the enterprise or to make up for the organization’s lagging

marijuana sales. Nor was the robbery connected to the

organization’s “core business of drug dealing,” according to

Coates. Br. of Appellants 130. None of these assertions change

the fact that Coates was involved in the triple murders in order

to maintain or increase his position in the K-Street enterprise.

Although the attempted robbery was unlike their other drug

activities, Sweeney, Carson, and Montgomery planned to rob

Gaskins in order to supply the enterprise with arms and

supplement the enterprise’s income. Coates joined Sweeney,

Carson, and Montgomery “because he knew it was expected of

him by reason of his membership in the enterprise.”

Concepcion, 983 F.2d at 381. The jury could fairly infer from

Coates’s willingness to assist his coconspirators that he joined

them because this was expected of him. It makes no difference

whether Coates shared Sweeney, Carson, and Montgomery’s

motive or whether his interest in maintaining his position was

his sole motivation, see id.; see also Tse, 135 F.3d at 206.

62

United States v. Thai, 29 F.3d 785 (2d Cir. 1994), does not,

as Coates urges, dictate a different result. There the Second

Circuit held that the leader of a gang who bombed a restaurant

did not act in furtherance of the gang’s enterprise or attempt to

maintain his status through the bombing. Id. at 818-19.

Although the gang engaged in murder, robbery, and extortion,

the gang leader bombed the restaurant as part of a side

agreement unrelated to the enterprise. Id. at 818. Here the

attempted robbery of Gaskins was not the K-Street enterprise’s

typical business, but it was done to further the ends of the

enterprise. A rational jury could properly find that Coates

accompanied his coconspirators in an effort to maintain his

position in the enterprise—that is, because the other members

expected him to assist them. The other cases Carson and Coates

cite are inapposite because each involved individuals who were

not members of the charged enterprise. See, e.g., United States

v. Ferguson, 246 F.3d 129, 135-36 (2d Cir. 2001); United States

v. Polanco, 145 F.3d 536, 540 (2d Cir. 1998).

VI. Joinder

Carson and Martin claim that several first-degree murder

charges under D.C. Code § 22-2401 (1996) and various criminal

charges related to events that occurred on, or in connection with,

37th Street, Southeast, were misjoined with the broader

narcotics and RICO conspiracy charges. They contend that the

prosecution failed to prove a sufficient relationship between

these joined charges and the broader claims asserted in the

indictment.

The superseding indictment filed on March 25, 1999,31

31

This was the indictment before the court when the defendants

moved to sever. Thereafter a retyped indictment was filed on January

4, 2001, and a second retyped indictment was filed on July 2, 2001.

The charges of which Carson and Martin complain were alleged in

each version. The verdicts relate to the July 2 indictment.

63

contained 101 counts. Among these were charges against

Carson and Martin for first-degree murder in violation of D.C.

Code § 22-2401 (1996). The charges related to Carson’s alleged

murder of Maurice Hallman, Leonard Hyson, Teresa Thomas,

and Terita Lucas, and Carson and Martin’s murder of Anthony

Fortune. Carson participated in the murder of Hallman and

Hyson, according to the government, as retaliation for an attack

on a member of the K-Street organization. The government

alleged that Carson murdered Thomas and Lucas because they

gave a rival drug dealer a bag of guns Carson had stored at

Thomas’s apartment. And according to the government, Carson

and Martin killed Anthony Fortune, who had robbed Martin, to

protect the organization’s violent reputation and ward off future

affronts to it or its members. Fortune’s murder was particularly

important because the organization was trying to move into his

area.

The indictment also charged Carson and Martin with various

racketeering acts underlying the RICO conspiracy charged in

Count 2. These racketeering acts included murdering Anthony

Fortune and Curtis Edward and assaulting with intent to murder

Keith Bradley, Jimmy Thomas, Richard Burton, Keith Jones,

and Officers Adrian Treadwell, Edward McDonald, Marc Little,

and Alvin Ray. All of these counts arose out of events on 37th

Street, which, as the government alleged, became an extension

of the K-Street organization when some conspirators moved

there. Carson and Martin’s murder of Fortune begat a rivalry

between the K-Street organization and a gang from 58th Street,

leading to numerous drive-by shootings. This in turn led, on one

occasion, to a shoot-out between Carson, Martin and police

officers, and, on another occasion, to Martin firing into

Edwards’s car (in which Burton and Jones were riding) on the

mistaken belief that Edwards was part of the 58th-Street gang.

Related to the shoot-out with police was the charge against

Martin for assaulting, resisting, and interfering with a police

64

officer while using a dangerous weapon. See D.C. Code § 22-

505(b) (1996).

Carson and Martin filed a pretrial motion to sever these

counts under Federal Rule of Criminal Procedure 14, contending

among other things that the counts were misjoined under Rule

8 with the other counts, particularly the narcotics and RICO

conspiracy counts. Carson and Martin argued, as they do on

appeal, that the D.C. Code offenses and the charges related to

37th Street were distinct and unrelated to the alleged RICO and

narcotics conspiracies. The district court denied the motion.

The jury returned guilty verdicts on the first-degree murder

counts and on the single count of assaulting, resisting, and

interfering with a police officer. It also found the racketeering

acts proven.

Carson and Martin’s Rule 8 argument here differs from their

pretrial argument in a material respect: rather than arguing that

the counts, as alleged, were misjoined as a legal matter, they

contend that joinder was inappropriate because the evidence at

trial failed to prove a sufficient connection between these counts

and the broader narcotics and RICO conspiracy counts to satisfy

the standards of Rule 8. This change in their argument is

important because Rule 8 governs only the initial joinder of

counts and defendants: “the only issue under Rule 8 is whether

joinder was proper at the beginning of trial.” United States v.

Clarke, 24 F.3d 257, 262 (D.C. Cir. 1994) (discussing Schaffer

v. United States, 362 U.S. 511, 514 (1960)); see also United

States v. Irizarry, 341 F.3d 273, 287 (3d Cir. 2003); United

States v. Friedman, 854 F.2d 535, 561 (2d Cir. 1988). The

propriety of joinder is determined as a legal matter by evaluating

only the “indictment [and] any other pretrial evidence offered by

the Government.” United States v. Spriggs, 102 F.3d 1245,

1255 (D.C. Cir. 1996) (quoting United States v. Wilson, 26 F.3d

142, 153 (D.C. Cir. 1994)) (internal quotation mark omitted);

see also Schaffer, 362 U.S. at 513; United States v. Halliman,

65

923 F.2d 873, 883 (D.C. Cir. 1991).32 After counts are joined,

“subsequent severance [is] controlled by Rule 14.” Schaffer,

362 U.S. at 515. Whereas misjoinder under Rule 8 is

determined according to the propriety of joining offenses before

trial, severance may be warranted under Rule 14 “at all stages of

trial” because the district court has a “continuing duty” to sever

counts if it finds a risk of prejudice. Id. at 516; see also Zafiro

v. United States, 506 U.S. 534, 539 (1993). That Rule 8 and

Rule 14 operate differently is made clear by the standards

governing appellate review of a district court’s decision under

them. Judge Friendly explained:

The question[s] of the propriety of joinder under Rule 8

and of refusal to grant relief from prejudicial joinder

under Rule 14 are quite different in nature . . . . The

former is a question of law, subject to full appellate

review . . . . In contrast, the grant of relief under Rule 14

lies within the discretion of the trial judge and refusal to

sever counts . . . properly joined under Rule 8 will be

reversed only if discretion was abused . . ..

United States v. Werner, 620 F.2d 922, 926 (2d Cir. 1980);

accord United States v. Brown, 16 F.3d 423, 426-27 (D.C. Cir.

1994); see also 1A CHARLES ALAN WRIGHT, FEDERAL

PRACTICE & PROCEDURE § 227, at 573 & n.1 (3d ed. 1999).33

32

The government need only allege “the facts necessary to sustain

joinder,” not prove them. Halliman, 923 F.2d at 883; Friedman, 854

F.2d at 561.

33

The joinder and severance of D.C. Code offenses follows these

same standards. The U.S. District Court for the District of Columbia

has jurisdiction over “[a]ny offense under any law applicable

exclusively to the District of Columbia” if the “offense is joined in the

same information or indictment with any Federal offense.” D.C. Code

§ 11-502(3). To be “joined” under § 11-502 means to be “properly

joined under” Rule 8. United States v. Jackson, 562 F.2d 789, 793

66

We have no doubt that the district court correctly permitted

the joinder of the D.C. Code offenses and the charges related to

37th Street under Rule 8(b).34 The indictment alleged that all of

these counts were overt acts in furtherance of the narcotics

conspiracy and predicate acts in furtherance of the RICO

conspiracy. This provided the necessary link to satisfy Rule

(D.C. Cir. 1977) (internal quotation marks omitted); see also United

States v. Richardson, 161 F.3d 728, 733 (D.C. Cir. 1998). Here Rule

8(b) governed the joinder of the D.C. Code offenses because there are

multiple defendants. See Jackson, 562 F.2d at 793-94; see also

Halliman, 923 F.2d at 882-83. Section 11-502 does not, however,

specifically address severance after initial joinder. Rather, it speaks

only to the joining of counts “in the same information or indictment

with any Federal offense.” D.C. Code § 11-502(3). But once they

were joined, the D.C. Code offenses operated like other federal

offenses for purposes of severance. Cf. Jackson, 562 F.2d at 798.

“[T]he trial judge ha[d] a continuing duty,” under Rule 14, “at all

stages of the trial to grant a severance if prejudice d[id] appear.”

Schaffer, 362 U.S. at 516.

34

When multiple defendants are tried together, the joinder of

counts is governed by Rule of Criminal Procedure 8(b), even though

Rule 8(a) would appear exclusively to deal with the joinder of

offenses. See Brown, 16 F.3d at 427; Halliman, 923 F.2d at 882-83;

United States v. Perry, 731 F.2d 985, 989 (D.C. Cir. 1984); Jackson,

562 F.2d at 793-94; see also 1A WRIGHT, supra, § 143, at 22; id

§ 144, at 44. Rule 8(b) states that an

indictment . . . may charge 2 or more defendants if [the

government alleges that they] have participated in the same

act or transaction, or in the same series of acts or transactions,

constituting an offense or offenses. The defendants may be

charged in one or more counts together or separately. All

defendants need not be charged in each count.

Fed. R. Crim. P. 8(b).

67

8(b).35 See Irizarry, 341 F.3d at 289-90; Spriggs, 102 F.3d at

1255-56; Friedman, 854 F.2d at 561; see also Schaffer, 362 U.S.

at 513-14; 1A WRIGHT, supra, § 144, at 53-54.

Carson and Martin’s argument, however, focuses on

evidence at trial. As such, the argument is under Rule 14, not

Rule 8. See Irizarry, 341 F.3d at 286; cf. Clarke, 24 F.3d at 262;

Schaffer, 362 U.S. at 516; 1A WRIGHT, supra, § 144, at 79-80.

Rule 14 provides that “[i]f the joinder of offenses . . . appears to

prejudice a defendant . . . the court may order separate trials of

counts, sever the defendants’ trials, or provide any other relief

that justice requires.” Fed. R. Crim. P. 14(a). As mentioned, the

district court “has a continuing duty at all stages of the trial” to

guard against any risk of prejudice. Schaffer, 362 U.S. at 516.

“The first hurdle in obtaining a severance under Rule 14 is

a showing of prejudice,” United States v. Lane, 474 U.S. 438,

449 n.12 (1986), which the defendant has the burden of

establishing, Spriggs, 102 F.3d at 1256; Brown, 16 F.3d at 427.

A showing that the defendant “may have a better chance of

acquittal in separate trials” is insufficient. Zafiro, 506 U.S. at

35

Appellants suggest that Rule 8(a) governs the joinder of the

D.C. Code offenses under § 11-502(3). For this, they rely on

Richardson, which explained that “joined” under § 11-502(3) “means

‘properly joined in accordance with Rule 8(a).’” 161 F.3d at 733

(quoting United States v. Koritko, 870 F.2d 738, 739 (D.C. Cir.

1989)). Nothing in Richardson, or Koritko upon which it relied,

indicates a departure from Jackson’s explanation of Rule 8 and § 11-

502(3). Both Richardson and Koritko dealt with a single defendant,

and the court therefore looked to Rule 8(a) to determine whether the

joinder of offenses was proper. See Richardson, 161 F.3d at 730, 733;

Koritko, 870 F.2d at 738-39. The statement that Rule 8(a) governed

the issues in each case did not change the conclusion in Jackson that

when there are multiple defendants, Rule 8(b) governs. 562 F.2d at

793-94; see also Brown, 16 F.3d at 427; Halliman, 923 F.2d at 882-

83.

68

540; accord Halliman, 923 F.2d at 884. The Supreme Court

explained that severance is warranted “under Rule 14 only if

there is a serious risk that a joint trial would compromise a

specific trial right of one of the defendants, or prevent the jury

from making a reliable judgment about guilt or innocence.”

Zafiro, 506 U.S. at 539; accord Brown, 16 F.3d at 433. This

may be shown, for example, by the presence of evidence

admissible against one defendant but not another or by the

unavailability of exculpatory evidence to a single defendant in

a joint trial that would be available in a single trial. Zafiro, 506

U.S. at 539; see also Halliman, 923 F.2d at 884. Even when a

defendant has demonstrated prejudice, however, severance may

not be required. Our review of a district court’s decision not to

sever is for abuse of discretion. We may uphold the court’s

judgment “even if the circumstances are such that a grant of

severance would have been sustainable,” Brown, 16 F.3d at 427

(citation and internal quotation marks omitted), particularly

since potential prejudice to a defendant may be obviated by jury

instructions, see, e.g., Zafiro, 506 U.S. at 539, 540; Schaffer, 362

U.S. at 516; Spriggs, 102 F.3d at 1256.

Carson and Martin’s first point—that there was a risk of

prejudice from the likelihood of evidentiary “spillover” or juror

confusion—fails to account for the district court’s limiting

instructions to the jury. The district court “was acutely aware of

the possibility of prejudice and was strict in his charge.”

Schaffer, 362 U.S. at 516. The court instructed the jury that it

could “not infer that a defendant is guilty of participating in

criminal conduct merely from the fact that he may have been

present at the time and place a crime was being committed,” nor

could the jury “infer that a defendant is guilty of participating in

criminal conduct merely from the fact that he associated with,

was a family member of or lived with other people who were

guilty of wrongdoing.” The court also explained that the jury

“should give separate consideration and render separate verdicts

with respect to each defendant,” and that “[e]ach defendant is

69

entitled to have his guilt or innocence of the crime . . .

determined from his own conduct and from the evidence that

applies to him as if he were being tried alone.” The court further

instructed that “[e]ach offense and the evidence that applies to

it should be considered separately, and you should return

separate verdicts as to each . . . . [T]he fact that you may find a

defendant guilty or not guilty of any one count of the

indictments should not control or influence your verdict with

respect to any other count of the indictments.” As in Zafiro, 506

U.S. at 540-41, and Schaffer, 362 U.S. at 516, these instructions

cured any possible risk of prejudice. See also United States v.

Thompson, 286 F.3d 950, 968 (7th Cir. 2002); Brown, 16 F.3d

at 433. The jury is “presumed to follow [its] instructions.”

Zafiro, 506 U.S. at 540 (quoting Richardson v. Marsh, 481 U.S.

200, 211 (1987)) (internal quotation mark omitted).

Carson and Martin contend that had they been tried

separately, they could have better defended against the

government’s allegations through more effective cross-

examination and impeachment of various witnesses. This is

insufficient under Rule 14 because “it is well settled that

defendants are not entitled to severance merely because they

may have a better chance of acquittal in separate trials.” Zafiro,

506 U.S. at 540; accord Halliman, 923 F.2d at 884. It follows

that Carson and Martin have failed to show a risk of prejudice

that might warrant severance. Without such a showing, their

Rule 14 argument fails.

Martin has an additional argument—that even if the 37th-

Street counts were properly joined, the evidence proved the

existence of multiple conspiracies, rather than the narcotics

conspiracy alleged in the indictment, and that this variance

between the evidence and the indictment requires reversal. See

United States v. Childress, 58 F.3d 693, 709 (D.C. Cir. 1995).

“Variance is grounds for reversal only if [Martin] can show that

the variance is material and that it substantially prejudiced

70

[him], such as by causing the jury to ‘transfer evidence from one

conspiracy to a defendant involved in another.’” United States

v. Graham, 83 F.3d 1466, 1471 (D.C. Cir. 1996) (quoting United

States v. Tarantino, 846 F.2d 1384, 1391 (D.C. Cir. 1988)).

Whether the prosecution has proven a single conspiracy or

multiple conspiracies is a question for the jury. See Tarantino,

846 F.2d at 1391. As such, we must view “the evidence in the

light most favorable” to the government, asking “whether ‘any

rational trier of fact could have found the essential elements of

[conspiracy] beyond a reasonable doubt.’” Graham, 83 F.3d at

1471 (quoting United States v. Washington, 12 F.3d 1128, 1135-

36 (D.C. Cir. 1994)) (alteration in original); see also United

States v. Mathis, 216 F.3d 18, 23 (D.C. Cir. 2000). To evaluate

the evidence relating to the single-versus-multiple-conspiracies

issue, “we look for several factors, including whether

participants shared a common goal . . .; interdependence

between the alleged participants in the conspiracy; and, though

less significant, overlap among alleged participants.” Graham,

83 F.3d at 1471 (citing Tarantino, 846 F.2d at 1393); accord

Mathis, 216 F.3d at 23 (quoting United States v. Gaviria, 116

F.3d 1498, 1533 (D.C. Cir. 1997)).

Martin contends that his activities related to 37th Street

established a “separate and totally unrelated conspiracy” as

opposed to the narcotics conspiracy alleged in the indictment.

Br. of Appellants 161. We disagree. As the government

suggests, Martin attempts artificially to “split one conspiracy

into two based simply on geographic lines.” Br. for Appellee

164. There was sufficient evidence for the jury to conclude that

Martin’s activities were part of a single conspiracy, not separate

ones. Charles Bender testified that 37th Street and those

associated with it were basically an extension of the K-Street

organization. Others so testified. Martin’s assertions that he

was not involved in the charged conspiracy and that he never

worked in tandem with others in selling drugs is contrary to the

evidence, which showed that he frequently sold drugs on K

71

Street and that he participated in the “rotation” system with

other members. That is, he would alternate between selling

marijuana to customers (sometimes by completing a sale for a

coconspirator and handing over the money) and keeping watch

for police and others who could disrupt the conspiracy’s

activities. This was sufficient for the jury to conclude that

Martin had a common goal with the others, that Martin and

others were interdependent, and that the participants overlapped.

See Graham, 83 F.3d at 1471-72. The violent acts connected

with 37th Street also clearly related to the other goals of the

conspiracy, which, as alleged in the indictment, were:

to enrich the members of the conspiracy; to create,

maintain, and control a market place for the distribution

of its controlled substances; to enforce discipline among

members of the conspiracy; to collect monies owed to

members of the conspiracy; to protect the conspiracy and

its members from detection, apprehension and

prosecution by law enforcement; to intimidate and

prevent persons from testifying as witnesses in criminal

prosecutions against members of the conspiracy; to

prevent, thwart, and retaliate against acts of violence

perpetrated by rivals against the conspiracy and its

members; and to promote and enhance the reputation

and standing of the enterprise and its members.

The evidence at trial did not materially vary from the conspiracy

count alleged in the indictment, and so there is no basis to upset

Martin’s convictions.

VII. Rule 804(b)(1)

Appellants next argue that the district court abused its

discretion by refusing to admit into evidence the transcript

testimony of two witnesses who had appeared before a

Maryland grand jury investigating the triple murders of Alonzo

72

Gaskins, Darnell Mack, and Melody Anderson. Appellants

contend that this testimony would have supported their story that

they were not involved with the triple murders. Because this

hearsay testimony was not within the exception for former

testimony, we conclude that the district court did not abuse its

discretion by barring its use at trial.

On December 10, 1996, less than one month after the triple

murders, the State Attorney for Prince George’s County called

Cheree Owens and her fiancé John Pinkney to testify before a

state grand jury investigating the crime. Owens and Pinkney

testified that they lived down the street from the home where the

triple murders were committed. Owens testified that,

approximately two weeks after the triple murders, she overheard

Dennis Green talking on his cell phone while he was visiting in

her home. Owens heard Green say “that they should have came

[sic] around there . . . because [we] just took three people out of

the street.”36 According to Owens, the person with whom Green

was speaking “must have asked him who is ‘we,’” because

Green responded, “me, California, and Free, and the rest of the

guys.” The conversation scared Owens and, after Green left her

home the next day, she told Pinkney what she heard. Pinkney

testified that after Owens told him about this conversation, he

told Green not to return. For reasons not clear from the

testimony, Green became upset with Owens and Pinkney,

threatened them, and tried to extort money from them. Green

told Owens that after he was “ finish[ed] with you all, a whole

lot of” people were “going to wind up dead around here.”

Around the same time that the Maryland grand jury was

hearing from Owens and Pinkney, federal officials were

36

Although the grand jury transcript states that Owens testified

that Green told the person he was speaking with that “me just took

three people out of the street,” the parties agree that this was a

transcription error.

73

beginning to make a connection between the K Street gang and

the triple murders. After the FBI arrested Robert Smith on

December 5, 1996, for selling four pounds of marijuana, Smith

agreed to tell the FBI what he knew about the K Street group

and at some point during his interviews told Special Agent Lisi

that “Shorty and them” committed the “triple.” “Shorty” was

one of Sweeney’s nicknames. Using this information, the

government began to build its case for the appellants’

involvement in the triple murders. On September 18, 1998, a

federal grand jury in the District of Columbia charged Carson,

Sweeney, and Coates with the three murders and other crimes.

The government filed a superceding indictment on March 25,

1999.

After the United States Marshals Service and an investigator

hired by Sweeney’s attorney could not locate Owens and

Pinkney to call them as witnesses during the trial, Sweeney and

Carson moved to admit into evidence the transcript of the

Maryland grand jury testimony of Owens and Pinkney.

Presumably, Sweeney and Carson hoped that the grand jury

testimony would help show that Dennis Green and his associates

committed the triple murders and not them. Sweeney argued

that the grand jury testimony was admissible under Federal Rule

of Evidence 804(b)(1), which allows for an exception to the

hearsay rule for “former testimony” when the declarant is

“unavailable as a witness” and “the party against whom the

testimony is now offered . . . had an opportunity and similar

motive to develop the testimony by . . . examination.”

The government opposed the motion and argued that the

Rule 804(b)(1) exception did not apply because, although

neither Owens nor Pinkney was available as a witness at trial,

the government—the “party against whom the testimony is now

offered”—would not have had a “similar motive to develop the

testimony” of Owens and Pinkney before the Maryland grand

jury as it had at trial. By the time of the trial, the federal

74

prosecutors believed that Owens and Pinkney were falsely

implicating Green in their grand jury testimony. When they

appeared before the grand jury, in the earliest stages of the

investigation into the triple murders, neither the government nor

Maryland “had [any] reason to believe . . . that the witnesses

were falsely implicating Mr. Green.” It was only much later that

the government came “to believe that [it was] being used by

Pinckney [sic] and Owens.” The government explained:

This belief [that Pinkney and Owens were “using” the

government] was based on the fact that Pinckney [sic]

and Owens were given a considerable amount of money

that was to be used for their relocation and was meant to

last several weeks. The pair went through the funds in

a matter of days and then demanded additional funds.

The police also learned that Pinckney [sic] and Owens

owed Dennis Green—the person they implicated in the

triple murder—money for drugs. After investigating

more fully, the police found nothing to corroborate the

stories of Pinckney [sic] and Owens. A short time later,

Pinckney [sic] and Owens seemingly disappeared.

The district court agreed with the government that the

motive of the State’s Attorney to develop the testimony of

Pinkney and Owens before the grand jury and the government’s

motive to develop their testimony at trial were not “similar” and

therefore denied the appellants’ motion.

The appellants challenge this ruling. We review a trial

court’s refusal to admit grand jury testimony of unavailable

witnesses for abuse of discretion, United States v. Miller, 904

F.2d 65, 68 (D.C. Cir. 1990), and find none here. “The hearsay

rule prohibits admission of certain statements made by a

declarant other than while testifying at trial.” United States v.

Salerno, 505 U.S. 317, 320 (1992); see also Fed. R. Evid.

801(c), 802. In certain circumstances, Rule 804(b)(1) allows an

exception to the rule against hearsay for former testimony:

75

“Testimony given [by a declarant] as a witness at another

hearing of the same or a different proceeding” is not “excluded

by the hearsay rule if the declarant is unavailable as a witness”

and “if the party against whom the testimony is now offered . . .

had an opportunity and similar motive to develop the testimony

by direct, cross, or redirect examination.” Both parties agree

that the failure of the Marshals Service and counsel for Sweeney

to locate Owens and Pinkney made them “unavailable” as

witnesses at trial. See Fed. R. Evid. 804(a)(5) (“‘Unavailability

as a witness’ includes situations in which the declarant . . . is

absent from the hearing and the proponent of the statement has

been unable to procure the declarant’s attendance . . . by process

or other reasonable means.”). The only issue, then, is whether

“the party against whom [their] testimony [would be offered] . . .

had an opportunity and similar motive to develop the testimony

by direct, cross, or redirect examination.”

The district court here held that the Rule 804(b)(1) exception

did not apply, stating that “in the absence of an identity of

motive on the part of the government, that testimony is not

admissible.” We agree. Even were it possible to consider the

United States and Maryland a single party for purposes of Rule

804(b)(1), and, as we discuss below, we do not see how they

could be on these facts, the appellants have failed to show how

the motive to develop the testimony of Owens and Pinkney

before the grand jury was similar to the motive to develop their

testimony at trial. Rule 804(b)(1) provides that “the party

against whom the testimony is . . . offered [must have] had an

opportunity and similar motive to develop the testimony by

direct, cross, or redirect examination.” Fed. R. Evid. 804(b)(1)

(emphasis added).

In Salerno, 505 U.S. at 321-22, the Supreme Court addressed

this similarity of motive requirement. In that case, seven

defendants were accused of taking part in a criminal

organization that committed fraud in the New York construction

76

industry. The defendants sought to introduce into evidence

potentially exculpatory testimony of grand jury witnesses who

were unavailable to testify at trial. The Court rejected any

presumption that a prosecutor’s motives to develop testimony

before the grand jury and at trial are similar and held that

respondents could not make use of Rule 804(b)(1), unless they

could “demonstrate” that the government, in fact, had a “similar

motive” to develop the testimony in both proceedings. Id. at

325. On remand from the Supreme Court, the Second Circuit

held that district courts are to make “fact-specific” inquiries into

the motives of the prosecution during these different stages of

the investigation and trial. Instead of remanding to the district

court to conduct this inquiry, the Second Circuit conducted this

inquiry itself in order to “avoid further delay” and “because [the

case was an] unusual case in which it [could] be shown beyond

reasonable dispute that the prosecutor had no interest at the

grand jury in proving the falsity of the witnesses’ assertion.”

United States v. DiNapoli, 8 F.3d 909, 915 (2d Cir. 1993) (en

banc). It stated: “If a prosecutor is using the grand jury to

investigate possible crimes and identify possible criminals, it

may be quite unrealistic to characterize the prosecutor as the

‘opponent’ of a witness’s version. At a preliminary stage of an

investigation, the prosecutor is not trying to prove any side of

any issue, but only to develop the facts to determine if an

indictment is warranted.” Id. It therefore held that the

government did not have a similar motive to develop testimony

at these two stages of the litigation. Id.; see also United States

v. Omar, 104 F.3d 519, 523 (1st Cir. 1997) (“In an ordinary trial,

the positions of the parties vis-a-vis a witness are likely to be

clear-cut: the witness is normally presented by one side to

advance its case and cross-examined by the other to discredit the

testimony. . . . Grand juries present a different face. Often, the

government neither aims to discredit the witness nor to vouch

for him. The prosecutor may want to secure a small piece of

evidence as part of an ongoing investigation.”).

77

We agree with our sister Circuits that district courts should

apply a fact-specific inquiry to determine whether prosecutors

had a similar motive to develop the testimony at the grand jury

proceeding as they would have at trial. Battle ex rel. Battle v.

Mem’l Hosp. at Gulfport, 228 F.3d 544, 552 (5th Cir. 2000)

(district courts are to apply fact-specific inquiry when assessing

similar motive); Omar, 104 F.3d at 523 (same); DiNapoli, 8

F.3d at 914 (“Our point is simply that the inquiry as to similar

motive must be fact specific, and the grand jury context will

sometimes, but not invariably, present circumstances that

demonstrate the prosecutor’s lack of a similar motive.”); see

also Salerno, 505 U.S. at 326 (Blackmun, J., concurring) (“the

similar-motive inquiry, in my view, is inherently a factual

inquiry, depending in part on the similarity of the underlying

issues and on the context of the grand jury questioning.”)

(emphasis in original). The district court made this inquiry here

and we hold that it did not abuse its discretion in finding that the

government did not have a “similar motive” to develop the

testimony at these two stages of the prosecution. Like the grand

jury proceedings in DiNapoli and Omar, the purpose of the

Maryland grand jury proceeding was to investigate a crime and

identify possible criminals. The state prosecutor was not

attempting to prove that the appellants were involved in the

triple murders. In fact, we can find nothing in the record that

suggests that Maryland state authorities at this point even

suspected that the appellants were involved. Rather, the state

prosecutor was either examining Owens and Pinkney to see if

they could provide information that would lead to the

perpetrators of the crime or questioning them to make a case for

indicting Green and his associates. If Owens and Pinkney had

been available to testify at trial, the federal prosecutors’ motives

in questioning them would have been entirely different.

Because the witnesses’ testimony tended to exculpate the

appellants, the prosecutor at trial would not have used his time

questioning the two to elicit testimony that might help the

78

appellants. Rather he would have tried to show that the grand

jury testimony of Owens and Pinkney was false.

Our decision in United States v. Miller, 904 F.2d 65, 68

(D.C. Cir. 1990), does not conflict with our holding here. In that

case, we held that the defendants could introduce at trial the

testimony of an unavailable witness who had testified before a

grand jury. Id. at 66. We did not, as the appellants argue here,

establish a blanket rule that grand jury testimony is always

admissible at trial under Rule 804(b)(1). In fact, it was only

after we “examined [the witness’s] grand jury testimony [to see

if] the government’s position in the second proceeding would

differ from the first” and determined that it would not, that we

concluded that the Rule 804(b)(1) exception applied. Id. at 68

n.3. After examining the grand jury testimony of Owens and

Pinkney, we reach the opposite conclusion here. The position

of the United States in the trial was substantially different from

the position of Maryland before the grand jury. We therefore

agree with the district court that there was no similarity of

motive here.

We further note that the district court could have refused to

admit the evidence for a more simple reason—the “party against

whom the testimony is now offered,” the United States, never

“had an opportunity” to “develop the testimony” of Pinkney or

Owens before the Maryland grand jury. Maryland and the

United States are separate sovereigns and, in the absence of

evidence that the United States controlled the Maryland

investigation, they should not be treated as the same party for

purposes of Rule 804(b)(1). Maryland had the opportunity to

develop the testimony of Owens and Pinkney before the grand

jury. The United States did not. In United States v. Peterson,

100 F.3d 7, 12 (2d Cir. 1996), the Second Circuit analyzed

whether New York and the United States should be treated as

the same party under Rule 804(b)(1). In that case, a New York

grand jury had indicted the defendant for firearm possession.

79

The charges were dropped, but a federal grand jury later indicted

the defendant for possession of a firearm by a felon. During his

federal trial, the defendant sought to introduce into evidence his

state grand jury testimony in which he claimed that the firearm

was not his but that an associate handed it to him as police

officers saw him. Id. at 10. At trial, the defendant declined to

testify, invoking his Fifth Amendment privilege against self-

incrimination. He argued that by doing so, he was “unavailable

as a witness” and that his former testimony should be admitted

under Rule 804(b)(1). Id. at 11.

The Second Circuit held that the defendant could not take

advantage of Rule 804(b)(1) by creating his own unavailability,

id. at 13, but addressing the issue before us, held that the

defendant could not use the “former testimony” exception

because the United States was not a party to the state grand jury

proceedings. Id. at 12. The Court relied upon the reasoning in

Heath v. Alabama, 474 U.S. 82, 88-89 (1985), which held that

Alabama and Georgia could each prosecute a defendant for the

same actions without offending the Double Jeopardy Clause of

the Constitution because they were separate sovereigns. Id.

Applying this logic to Rule 804(b)(1), the Second Circuit held

that because New York and the United States were separate

sovereigns they were separate parties for purposes of Rule

804(b)(1). Peterson, 100 F

This text is long and has been trimmed here. Open the source document for the complete record.