Michael D. Tann v. United States

Notice: This opinion is subject to formal revision before publication in the

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DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 09-CF-1438, 10-CF-54, 09-CF-1439, 10-CF-55, 09-CF-1450,

09-CF-1469, 09-CF-1482, 09-CF-1483, & 10-CF-120

MICHAEL D. TANN, LANNELL COOPER, ANTONIO ARNETTE, JAMES RUSHING,

SAQUAWN HARRIS, and DAJUAN D. BEAVER, APPELLANTS,

v.

UNITED STATES, APPELLEE.

Appeals from the Superior Court

of the District of Columbia

(CF1-22807-07, CF1-22940-07, CF1-22893-07,

CF1-3359-08, CF1-22962-07, & CF1-22967-07)

(Hon. Henry F. Greene, Trial Judge)

(Argued March 25, 2014 Decided November 19, 2015)

Judith A. Lovelace for appellant Tann.

Thomas T. Heslep for appellant Cooper.

Deborah A. Persico for appellant Arnette.

Steven R. Kiersh for appellant Rushing.

Christopher Kemmitt, Public Defender Service, with whom James Klein,

Public Defender Service, was on the brief, for appellant Harris.

Stephen W. Riddell for appellant Beaver.

2

Elizabeth Gabriel, Assistant United States Attorney, with whom Ronald C.

Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth

Trosman, John P. Mannarino, Laura Bach, and John Giovanelli, Assistant United

States Attorneys, were on the brief, for appellee.

Before GLICKMAN, BLACKBURNE-RIGSBY, and THOMPSON, Associate

Judges.

Opinion for the court per curiam.

Opinion by Associate Judge GLICKMAN, concurring in part and dissenting in

part, at page 213.

PER CURIAM: After a nine-month jury trial, the six appellants in this case

were convicted of conspiracy and a string of violent crimes, including homicides,

that were committed in connection with their membership in a gang known as the

22nd Street Crew. They raise numerous challenges to their convictions in these

consolidated appeals. With a few exceptions, however, we affirm the judgments of

the Superior Court.

In view of the length of this opinion, before commencing our discussion of

the proceedings below and appellants‘ claims, we set forth the following table of

contents as an aid to the reader.

Table of Contents

I. The Leslie Jones Murder ............................................................................................7

II. The Terrence Jones Murder and Richard Queen Assault ..........................................8

III. The James Taylor Murder and Bernard Mackey Assault ..........................................10

IV. The Laquanda Johnson Murder and Keisha Frost Assault ........................................12

V. Obstruction of Justice – Witness Intimidation and Manipulation .............................15

3

VI. Procedural Developments ..........................................................................................16

VII. Claims Concerning the Sufficiency of the Evidence .................................................19

A. Conspiracy .....................................................................................................19

1. Antonio Arnette ....................................................................................25

2. Dajuan Beaver .......................................................................................27

3. Lannell Cooper......................................................................................28

4. Saquawn Harris .....................................................................................29

5. James Rushing ......................................................................................30

6. Michael Tann ........................................................................................31

B. Terrence Jones-Richard Queen Incident ........................................................35

1. Tann‘s Convictions: Second-Degree Murder While

Armed of Terrence Jones, Armed Robbery of Richard

Queen, and Possession of a Firearm During the

Commission of a Crime of Violence (―PFCV‖) ...................................35

2. Arnette‘s Convictions: Second-Degree Murder While

Armed of Terrence Jones, Armed Robbery of

Richard Queen, and PFCV ....................................................................42

C. James Taylor-Bernard Mackey Incident ........................................................50

1. The Government‘s Argument ...............................................................56

2. Appellant‘s Argument ...........................................................................58

3. Analysis.................................................................................................60

D. Beaver‘s Conviction: Obstruction of Justice .................................................87

E. Beaver‘s Conviction: Carrying a Pistol Without a License (―CPWL‖) ........94

F. Cooper‘s Conviction: Laquanda Johnson Murder Under Pinkerton .............98

VIII. Procedural and Evidentiary Issues Related to the Conspiracy

And Appellants‘ Joint Trial .......................................................................................103

A. Cooper‘s Prior Convictions............................................................................103

1. Error in Admitting Cooper‘s Convictions Against

Tann and Arnette...................................................................................106

2. Harmlessness.........................................................................................110

3. Admission Against Cooper ...................................................................114

B. Tann‘s Severance Argument Unrelated to Cooper‘s

Prior Conviction .............................................................................................115

C. Laquanda Johnson‘s Statements Admitted Under a

Forfeiture-by-Wrongdoing Theory ................................................................117

D. The Trial Court‘s Finding of a Predicate Conspiracy ....................................121

E. Rap Lyrics and Beaver‘s Webpage ................................................................125

1. Authorship of the Rap Lyrics on the CD ..............................................127

2. Whether Michael Smith was a Co-conspirator .....................................129

3. Statements in Furtherance of Conspiracy .............................................130

4. Unfair Prejudice ....................................................................................133

F. Tann‘s Outburst .............................................................................................135

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IX. Pretrial and Trial Issues Unrelated to the Conspiracy or Joint Trial..........................143

A. Evidentiary Issues ..........................................................................................143

1. Search of Beaver‘s Jail Cell ..................................................................143

2. Evidence of Uncharged Misconduct, Incarceration, and Fear

Testimony ............................................................................................149

a. Testimony of Andre McDuffie ......................................................149

b. Testimony of Darryl Travers .........................................................155

3. Evidentiary Rulings During Cooper‘s Case-in-Chief ...........................157

a. Statements by Tamika Bradshaw ..................................................157

b. Statements by Laquanda Johnson..................................................159

c. Statements by Cooper to Brandon Elzie........................................160

4. Admission of Tann‘s Videotaped Statement ........................................162

B. Instructional Issues.........................................................................................163

1. Obstruction of Justice Instruction .........................................................163

2. Lesser-Included Offense Instruction: Relationship

Between Felony and Second-Degree Murder .......................................173

3. Attitude and Conduct Instruction ..........................................................175

C. Closing and Rebuttal Argument.....................................................................176

1. Government‘s Closing Argument .........................................................176

2. Government‘s Rebuttal Argument ........................................................179

3. Analysis.................................................................................................182

D. Discovery .......................................................................................................186

1. Loss of Cooper‘s Jail Phone Calls ........................................................186

2. Dewey Chappel .....................................................................................191

3. Kyara Johnson .......................................................................................196

E. Grand Jury Claims .........................................................................................199

1. Pre-Indictment.......................................................................................203

2. Post-Indictment .....................................................................................206

X. Merger ...............................................................................................................208

XI. Conclusion ............................................................................................................212

The government presented evidence at appellants‘ trial showing that there was

a criminal street gang operating in the area of 22nd Street, Southeast, Washington,

D.C. The investigation of this gang revealed a violent, drug-trafficking organization

functioning in the blocks of 22nd Street that sat between Southern Avenue and

Savannah Street, and influencing areas around the gang‘s base of operations. The

5

goals of the organization were centered on the purchase, storage, packaging, and

resale for profit, of illegal drugs within the community.

Members of the gang committed numerous criminal acts in an effort to

protect the territory of the gang and integrity of its operations. This misconduct

took the form of acts of violence designed to safeguard the organization. Often,

the violence was directed at perceived rivals who might threaten the gang‘s

territory and drug trade or witnesses who might undermine its operations through

cooperation with law enforcement.

The gang was called various names, including the ―22nd Street Crew,‖ ―The

Deuce,‖ ―Deuce-Deuce,‖ ―Shipley Market,‖ ―Young Gunz,‖ and ―Deuce Squad

Mafia.‖ For simplicity, it will be referred to in this opinion as the ―22nd Street

Crew.‖ The 22nd Street Crew had a loose rank structure wherein members would

play different roles according to the level of authority and respect they had gained

over time through demonstrations of loyalty to the gang. Members that had

achieved a sufficient level of respect would be referred to as ―OGs‖ or ―original

gangsters.‖ More junior members were labeled ―baby gangsters‖ or ―little locs.‖

6

The government‘s evidence tended to demonstrate the involvement of all six

appellants in the 22nd Street Crew. Lannell Cooper had been part of the 22nd

Street Crew since the 1990s and achieved an unmatched level of authority within

the gang. Michael Tann was part of the gang for a similar period and was close

behind Cooper in the hierarchy. James Rushing, Dajuan Beaver, and Antonio

Arnette carried less weight in the organization; however, evidence was presented

showing their long-standing involvement in the 22nd Street Crew and its operation.

Saquawn Harris was a newer member, having been introduced by another high-

ranking gang member.

The indictment in this case charged the six appellants with conspiracy and

with committing serious acts of violence as part of their participation in the 22nd

Street Crew. Specifically, the indictment articulated that each appellant entered

into a conspiracy to ―knowingly and willfully . . . agree together to obstruct justice

and to assault and kill anyone whose interests were contrary to those of

[appellants] and their associates.‖ In a nine-month joint trial of appellants from

November 2008 to July 2009, the government endeavored also to show that four

murders were committed, as part of the charged conspiracy, at or near 22nd Street

between 2003 and 2006. The government contended that these murders were

7

directed toward maintaining the turf and authority of the 22nd Street Crew, either

by eliminating perceived rivals or killing government witnesses. Each appellant

was involved in at least one of these murders; appellant Tann was alleged to have

played a role in three of the four. The essential facts of each major incident are

briefly recited here.

I. The Leslie Jones Murder

Leslie Jones was a drug dealer who sold his product near 22nd Street,

specifically in the Shipley Market area. He had a long-running feud with Tann that

revolved around competition for drug sales and a prior incident in which one of his

relatives assaulted Tann and had stolen his weapon.

On the evening of April 11, 2003, Tann attended a small party with his

future wife Tracey at his cousin‘s house in Southeast, Washington, D.C. At some

point during the evening, Tann told Tracey that he was going to 22nd Street and

left the party. Tann found Leslie Jones at a pay phone near Shipley Market and

shot him from behind. 22nd Street Crew member Alphonce Little was an

eyewitness to the murder. Another witness, Tyrone Curry, heard the gunfire and

saw Tann running away from the scene of the crime. Tann later confessed to

8

Tracey, and another 22nd Street Crew member named Donald Matthews, that he

had committed the murder.

II. The Terrence Jones Murder and Richard Queen Assault

The murder of Terrence Jones on April 17, 2004, began with an argument on

22nd Street between gang member Donald Matthews and a 22nd Street resident,

Kyara Johnson, apparently about the type of liquor that was to be served at Kyara‘s

birthday party. The verbal quarrel threatened to become violent before it was

broken up by Kyara‘s sister, Shaunta Armstrong. Shaunta called her close friend

Terrence Jones and asked him to come to 22nd Street to make sure that the

situation was under control. Terrence Jones went to 22nd Street with his friend,

Richard Queen. Terrence Jones approached Matthews and had a brief conversation

with him. Matthews explained that he ―just had an argument [with Kyara] but it

wasn‘t nothing.‖ Witnesses reported that their interaction ended peacefully and

without incident.

According to Kyara Johnson, appellant Arnette learned of the exchange

between Donald Matthews and Terrence Jones and yelled, ―Doe‖ [referring to

appellant Cooper] Kyara heard Cooper respond, ―Where at?‖ Shaunta Armstrong

9

then heard someone (believed to be Cooper) ask, ―Squirt [appellant Arnette‘s

nickname], who‘s faking?‖ Arnette nodded in the direction of Terrence Jones and

Richard Queen and told Cooper to go up the street with his ―hammer,‖ which was

the street name for a gun. Cooper approached Terrence Jones and pointed a gun at

him while Arnette hit Terrence Jones with his hands. Then, according to several

witnesses, Cooper said words to the effect of ―Pat them niggers‘ pockets.‖

Arnette proceeded to pat Terrence Jones‘s pockets and hit him in the face.

Witnesses stated that at some point Terrence Jones resisted by hitting Cooper, and

Cooper shot him in response. When Terrence Jones tried to crawl away, Cooper

shot him again.

Witnesses further testified that at approximately the same time as Terrence

Jones was under attack, appellant Tann and other unidentified males appeared,

pinned Richard Queen against a car, and began beating him and going through his

pockets. According to Donald Matthews, Tann picked up a gun off the ground in

the midst of the fight with Queen and shot him in the back as he tried to run away,

wounding Queen but not badly enough to prevent his escape. Several days later,

Tann told Matthews that he had shot Queen. At trial, Queen testified that his

assailants had stolen cash and cigars that he was carrying that night.

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III. The James Taylor Murder and Bernard Mackey Assault

A third murder occurred on 22nd Street a little over two years later, in the

early evening of May 4, 2006. Again, the events were precipitated by an

argument. This time it was a disagreement between Omar Harrison and Ashley

Tyndle during which Harrison may have struck Tyndle. Harrison was an outsider

to 22nd Street, and Tyndle was the girlfriend of gang member Alphonce Little.

As the dispute climaxed, Harrison made reference to his lack of fear of Little

by telling Tyndle to ―go get your baby[‘s] father‖ or words to that effect. At the

time of the argument between Harrison and Tyndle, various members of the 22nd

Street Crew were dispersed in different places on 22nd Street; one witness testified

that one ―little crew,‖ including appellants Tann and Harris, as well as Little and

several other gang members, was gathered near a basketball court. When word of

the Harrison-Tyndle dispute, and Harrison‘s challenge to Little, spread by word of

mouth to the gang, Little, Harris, Tann, and other gang members raced toward

Harrison from different directions on 22nd Street.

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Then, multiple witnesses saw Harris and Tann open fire at Omar Harrison.

Seven witnesses testified that they saw Harris shooting. Four witnesses saw Tann

shooting. One witness testified that between five and ten gang members were

shooting en masse with Tann and Harris although this testimony was conflicting.

Two witnesses testified to seeing gang member Antonio Blaylock with a gun

drawn during the incident. According to another witness, ―a lot of people‖ in

addition to Tann and Harris were shooting.

Alphonce Little, who denied firing a weapon, stated that immediately after

the first waves of gunfire ended, he heard a separate set of gunshots coming from

another location ―across the street.‖ These shots were fired by Robert Foreman,

who Little testified was a very junior member of the 22nd Street Crew. Foreman

saw and heard Tann and Harris firing at Harrison, felt compelled to join in the

attack, and started shooting as well.

Once the firing started, Omar Harrison jumped into his truck and drove away

safely. However, James Taylor, a 22nd Street resident who had been standing near

Harrison‘s truck, was hit by a bullet in the head and died. Bernard Mackey,

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another innocent bystander, was also standing nearby and was grazed by a bullet in

the back.

Alphonce Little ran with appellant Harris to the house of Harris‘s girlfriend

and watched him pack his bags in preparation to go into hiding. Robert Foreman

found Harris and Little at Harris‘s girlfriend‘s house. Little testified that Foreman

told Harris and Little that he believed he had fired the shot that killed James

Taylor. There was no evidence to show that either Harris or Tann, although aware

of each other‘s role in the shooting and the presence of other gang members during

the event, knew of Foreman‘s involvement in the murder. Following the incident,

Harris fled the area and lived in disguise for several weeks until his arrest.

IV. The Laquanda Johnson Murder and Keisha Frost Assault

Notably for purposes of this appeal, appellant Cooper was tried for and

convicted of the murder of Terrence Jones in 2006. At the time of the instant

2008-2009 trial of the appellants in this case, Cooper was serving a lengthy prison

sentence for that crime. At Cooper‘s 2006 trial, the government listed Kyara

Johnson and her older sister, Laquanda Johnson, as potential witnesses. Kyara

testified about Cooper‘s shooting of Terrence Jones following her argument with

13

Matthews. Laquanda was not an eyewitness to the Terrence Jones murder;

however, Cooper had made several incriminating statements to her in the aftermath

of that incident. Ultimately, Laquanda did not testify at the 2006 trial, but she

could be seen at the courthouse during the trial supporting her sister. Laquanda

was protective of her younger sister and was known by reputation to be a

―gatekeeper‖ for those seeking access to Kyara.

Cooper was convicted at the end of June 2006. Approximately two weeks

later, in the early morning of July 11, 2006, the sisters (who had been relocated

from 22nd Street because of Cooper‘s trial) returned to 22nd Street to visit friends.

Appellant Beaver saw the sisters and told Alphonce Little that they were back.

Little investigated their presence and confirmed that the sisters were hanging out at

a 22nd Street house with Keisha Frost, Laquanda Johnson‘s friend. Beaver and

Little met with Dwayne Wright, another 22nd Street Crew member. The three

men discussed the sisters and agreed that they ―got to go‖ – meaning that they

should be killed – because of their cooperation with the government. Beaver and

Little further discussed which one of them was going to do the killing. Beaver,

arguing that he had already done his duty to the gang by testifying in Cooper‘s

defense at his 2006 trial, persuaded Little that he had an obligation to eliminate the

14

Johnson sisters. Wright retrieved a gun for Little, and Beaver gave Little a pair of

sunglasses as a partial disguise. Preparations were completed when Little secured

a ―hoodie‖ from Robert Foreman, and an escape route from appellant Rushing,

who agreed to drive Little and Beaver away from the scene of the anticipated

shooting.

Alphonce Little walked up to the house where he had seen the Johnson

sisters. Kyara Johnson was inside, but Laquanda was on the porch with Keisha

Frost. Little opened fire and shot both women, believing that Keisha was Kyara.

Laquanda died, but Keisha lived. Kyara, looking out of an upstairs window,

witnessed the shooting. Little ran away from the scene toward 23rd Street and

Southern Avenue. Rushing collected Little and Beaver in his car and instructed

Little to get rid of the hoodie. Beaver directed the gang members to his mother‘s

house in Maryland where he hid the gun that Dwayne Wright had given Little to

commit the murder.

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V. Obstruction of Justice – Witness Intimidation and Manipulation

In the aftermath of these incidents, several appellants, and other gang

members, approached witnesses in efforts to prevent their cooperation with law

enforcement. Karen Bolling, the mother of Laquanda and Kyara Johnson, testified

that while appellant Cooper was still on the street, he approached Laquanda and

offered her drugs and money if she would keep Kyara off the stand during his 2006

trial for the murder of Terrence Jones.

After his arrest, Cooper sent out overtures from prison to numerous

individuals in an effort to have them persuade (by force if necessary) the Johnson

sisters and others not to testify against him. Cooper reached out to members of an

allied street gang on 17th Street, including Brian Gilliam and Tyrell Hargraves, to

have them search 22nd Street for Kyara. Gang member Travis Honesty and gang

ally Dewey Chappell also testified that Cooper, from jail, instructed them and

others (including appellants Tann, Beaver, Harris, Rushing, and gang member

Alphonce Little) to find the sisters at various points. Karen Bolling also testified

that after Cooper was arrested, Laquanda implored her not to let Kyara testify

against Cooper, explaining that Tann had ―talked to [Cooper]‖ and that ―[Cooper]

wanted to know was [Laquanda] going to help him by not letting her sister testify.‖

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Tann approached other witnesses after the James Taylor-Bernard Mackey

incident. He threatened Zartia Anderson, the sister of witnesses to the James

Taylor murder, and stated that he was going to ―straighten things out‖ regarding

their cooperation with the government. Tann also confronted Donnise Harris,

another James Taylor murder witness, and urged her to testify falsely that appellant

Harris (no relation to Donnise Harris) had not been involved in the incident.

VI. Procedural Developments

A grand jury investigating these criminal activities in the area of 22nd Street

handed down its original indictment in September 2007. A second grand jury

followed with a superseding indictment in February 2008. The superseding

indictment charged appellants with conspiring ―to obstruct justice and to assault

and kill anyone whose interests were contrary to those of [appellants] and their

associates,‖ and numerous crimes related to that overall conspiracy, including

involvement in the four murders described above. The jury returned general

17

verdicts against all six appellants, finding each guilty of conspiracy.1 In addition,

each appellant was convicted on multiple other counts, as follows:

Tann was convicted of first-degree premeditated murder while armed2 of

both Leslie Jones and James Taylor, second-degree murder while armed3 of

Terrence Jones, armed robbery4 and assault with intent to kill while armed5

(―AWIKWA‖) of Richard Queen, AWIKWA of Bernard Mackey, two counts of

obstruction of justice,6 one count of threatening a person,7 and a host of weapons

offenses8 related to these underlying crimes. Harris was convicted of first-degree

premeditated murder while armed of James Taylor, AWIKWA of Bernard

Mackey, and several related weapons offenses. Beaver was convicted of first-

1

D.C. Code § 22-1805a (2012 Repl.).

2

D.C. Code §§ 22-2101, -4502 (2012 Repl.).

3

D.C. Code §§ 22-2103, -4502 (2012 Repl.).

4

D.C. Code §§ 22-2801, -4502 (2012 Repl.).

5

D.C. Code §§ 22-401, -4502 (2012 Repl.).

6

D.C. Code § 22-722 (2012 Repl.).

7

D.C. Code § 22-1810 (2012 Repl.).

8

D.C. Code § 22-4504 (a), (b) (2012 Repl.).

18

degree premeditated murder while armed of Laquanda Johnson, assault with a

dangerous weapon9 (―ADW‖) of Keisha Frost, and obstruction of justice, carrying

a pistol without a license, unlawful possession of a firearm in connection with that

event. He was also convicted of an additional count of obstruction of justice

related to his prior attempts to influence the testimony of the Johnson sisters.

Cooper was convicted of first-degree premeditated murder while armed of

Laquanda Johnson and ADW of Keisha Frost on a conspiracy theory of liability

pursuant to Pinkerton v. United States, 328 U.S. 640 (1946). He was also

convicted on two counts of obstruction of justice related to the Johnson sisters and

several weapons offenses. Rushing was convicted of first-degree premeditated

murder while armed of Laquanda Johnson, ADW of Keisha Frost, and obstruction

of justice and weapons offenses related to that shooting. Finally, Arnette was

convicted of second-degree murder while armed of Terrence Jones, armed robbery

of Richard Queen, and weapons offenses related to that incident.

Appellants followed with these appeals. In our discussion of their manifold

claims of error, we first analyze the claims relating to the sufficiency of the

government‘s evidence. Next, we deal with procedural and evidentiary issues

9

D.C. Code § 22-402 (2012 Repl.).

19

affected by the alleged conspiracy and flowing from appellants‘ joint trial. Then,

we address pretrial and trial matters not directly tied into the conspiracy or

appellants‘ joinder. We conclude with our merger analysis and instructions to the

trial court upon remand.

VII. Claims Concerning the Sufficiency of the Evidence

A. Conspiracy

Appellants argue that the evidence failed to establish their membership in

the single conspiracy charged by the superseding indictment.10 Instead, they

contend, the evidence merely established, at best, only several short-term and

discrete conspiracies, and the trial judge erred in failing to grant their motions for

judgment of acquittal (―MJOA‖) as to the conspiracy count. ―The standard by

which we review a denial of a MJOA is de novo, and we, like the trial court,

determine whether the evidence, viewed in the light most favorable to the

government, was such that a reasonable juror could find guilt beyond a reasonable

10

All appellants challenge the sufficiency of the evidence showing a single

conspiracy. Only Tann and Arnette make specific arguments about their

membership in the conspiracy. In order to ensure a comprehensive review of

appellants‘ claims, we will consider the sufficiency of the evidence as to the

membership of each defendant in the single conspiracy charged by the indictment.

20

doubt.‖ (Vashon) Howard v. United States, 867 A.2d 967, 972 (D.C. 2005)

(internal quotation marks and alterations omitted).

―To prove conspiracy, the government must establish that an agreement

existed between two or more people to commit a criminal offense; that the

defendant[s] knowingly and voluntarily participated in the agreement, intending to

commit a criminal objective; and that, in furtherance of and during the conspiracy,

a co-conspirator committed at least one overt act.‖ Hairston v. United States, 905

A.2d 765, 784 (D.C. 2006) (internal quotation marks omitted). ―A conspiratorial

agreement may be inferred from circumstances that include the conduct of

defendants in mutually carrying out a common illegal purpose, the nature of the act

done, the relationship of the parties and the interests of the alleged conspirators.‖

Castillo-Campos v. United States, 987 A.2d 476, 483 (D.C. 2010) (internal

quotation marks and alterations omitted). Gang membership may be circumstantial

evidence probative of the offense of conspiracy. Id. (citing Perez v. United States,

968 A.2d 39, 82-83 (D.C. 2009)).

―In determining whether the evidence supports a finding of a single

conspiracy, the court looks at whether the defendants shared a common goal, any

21

interdependence between the alleged participants and any overlap among the

alleged participants.‖ McCullough v. United States, 827 A.2d 48, 60 (D.C. 2003).

―The existence of a single conspiracy or multiple conspiracies is primarily a

question of fact for the jury.‖ Hairston, 905 A.2d at 784 (quoting United States v.

Tarantino, 846 F.2d 1384, 1391 (D.C. Cir. 1988)).

The superseding indictment charged that between April 2003 and July 2006,

appellants and others conspired as follows:

[D]efendants Lannell N. Cooper . . . Stephen R. Gray . . .

Michael D. Tann . . . Antonio D. Arnette . . . Saquawn L.

Harris . . . Robert J. Foreman . . . Brian K. Gilliam . . .

Dwayne A. Wright . . . James E. Rushing . . . [and

Dajuan D. Beaver],[11] and other persons whose identities

are both known and unknown to the grand jury, did

knowingly and willfully combine, conspire, confederate,

and agree together to obstruct justice and to assault and

kill anyone whose interests were contrary to those of the

defendants and their associates, in violation of 22 D.C.

Code Sections 401, 402, 722, 2101.

11

The charges against appellant Beaver were included in the original

September 2007 indictment, but were not included in the superseding indictment

issued in February 2008. Prior to trial in this case, the government moved to rejoin

Beaver with the other appellants and the motion was granted by the trial court.

The cases against Dwayne Wright, Robert Foreman, Brian Gilliam, and Stephen

Gray, all alleged coconspirators and 22nd Street Crew members or allies, were

voluntarily severed from appellants‘ joint trial by the government.

22

The indictment proceeded to list thirty-three discrete overt acts, twenty-seven of

which went to the jury, alleged to have been committed by at least one charged or

uncharged coconspirator.

Because of the way that the indictment alleged the conspiracy, we review the

sufficiency of the evidence to examine whether it properly established that each

appellant knowingly participated in an agreement to obstruct justice, or to assault

or kill anyone whose interests were contrary to those of the defendants and their

coconspirators,12 and whether at least one overt act was committed by a

coconspirator. At trial, the government offered testimony about the structure and

operations of the 22nd Street Crew through several gang ―insiders‖ who testified as

cooperating witnesses: former gang members Andre McDuffie, Devin Evans,

Donald Matthews, and Alphonce Little. Their testimony tended to demonstrate

that the gang had a geographical territory around 22nd Street where only

authorized members were permitted to sell illegal drugs. In order be part of the

22nd Street Crew and enjoy the privileges associated with that membership, such

12

See White v. United States, 714 A.2d 115, 119 n.5 (D.C. 1998) (―Since

the jury returned a general verdict of guilty on the charge . . ., the conviction may

be affirmed if the evidence was sufficient to support either theory.‖).

23

as the right to partake in the profits of the gang‘s drug trafficking business,

members had to be willing to further the common goals of the gang through the use

of violence. McDuffie testified that to sell drugs as a member of the 22nd Street

Crew:

You have to commit acts of violence; you have to stay

loyal to one another; you got to help each other, if you

need anything [like] guns or if you need more drugs. It‘s

a commitment. It‘s like a way of life.

Appellants and other gang members used violence to protect their territory

and to silence or retaliate against those who were believed to threaten the business

and security of the gang and its operations. Devin Evans testified that an

―outsider‖ was ―considered somebody that‘s not from your neighborhood,

somebody that‘s not welcomed‖ who would be ―dealt with [by] acts of violence‖ if

caught acting in a way adverse to the business interests of the crew. Andre

McDuffie further explained: ―[W]e had to enforce that no one can come into our

area and try to take over our territory; no one can come in there and sell drugs

[because] we wasn‘t having it.‖ If an outsider tried to move in on the gang‘s drug

market, McDuffie stated, ―[The outsider] would have a problem [and] may end up

losing [his life.]‖ Donald Matthews testified similarly. When asked what would

happen if people from another part of the city ―decided to set up shop and sell

24

drugs‖ on 22nd Street, Matthews replied ―[t]hey wouldn‘t last long‖ because gang

members would ―[r]un them away‖ using ―[v]iolence.‖

The gang members treated ―snitches,‖ meaning those ―cooperating, telling

authorities . . . about the activities of our organization,‖ in the same way.

McDuffie testified that if someone was to cooperate with the government, ―there

would be violence inflicted.‖

The gang members played different roles in the operation according to the

―different rank[s] and level[s] of respect‖ that members had earned over time

through demonstrations of loyalty to the gang. Donald Matthews testified that the

different roles assigned to gang members included selling drugs, storing money,

stealing cars, and ―committ[ing] acts of violence in order to protect the

neighborhood.‖ However, Andre McDuffie also testified that ―everyone was an

enforcer,‖ willing to handle a ―beef‖ with ―rival[s] in the street. The cooperating

witnesses also revealed how 22nd Street Crew members shared weapons, warned

each other about police activity in the gang‘s, and provided assistance to gang

members who were in jail.

25

Such testimony sufficiently showed that no matter what role was played by a

particular gang member at a given time, the 22nd Street Crew members were

required to support the use of violence in order to advance the overall goals of

maintaining the stability and reputation of the organization, its territory, and its

illegal drug business. This testimony also established that the gang operated as a

cohesive unit (albeit loosely coordinated), with a rank and leadership configuration

that bound the gang together.

This testimony was the backdrop with which the jury examined the

participation of appellants in the charged conspiracy and the facts of the murders in

this case. The following subsections detail the evidence that more specifically

demonstrated the knowing participation of appellants in the conspiracy alleged.

1. Antonio Arnette

Donald Matthews testified that appellant Antonio Arnette was a member of

the 22nd Street Crew. According to Matthews, Arnette spent considerable time

with appellants Cooper, Rushing, and fellow gang member Alphonce Little, on

22nd Street. Matthews testified that Arnette was also involved with other 22nd

Street Crew members in packaging and selling illegal drugs in areas commonly

used by the gang. Two other gang ―insiders,‖ Devin Evans and Alphonce Little,

also testified that Arnette was a member of the 22nd Street Crew. Little testified

26

that Arnette sold drugs on 22nd Street and sometimes carried a gun. Several police

officers also testified that they observed Arnette trafficking illegal drugs in the

presence of other gang members and in areas known to belong to the 22nd Street

Crew.

Arnette also played a leading role in the attack on Terrence Jones and

Richard Queen. The evidence about this incident reasonably showed that Arnette

perceived that Terrence Jones and Queen affronted the territory of the 22nd Street

Crew by confronting fellow gang member Donald Matthews on the gang‘s turf.

Arnette then called out Terrence Jones and Richard Queen for ―faking‖ on 22nd

Street, identified the two outsiders to Cooper (who Arnette knew was a leading

member of the gang), and recommended that Cooper ―bring his hammer‖ to deal

with the situation. And the facts showed that Cooper (and Tann) responded

accordingly, in reliance on Arnette‘s representations, resulting in a chain of events

that led to Terrence Jones‘s death and Queen‘s shooting.

Although Arnette and Cooper may have been mistaken about whether

Terrence Jones or Richard Queen was a true threat to the interests of the 22nd

Street Crew, the evidence was sufficient to show that Arnette and Cooper believed

27

that the outsiders, who they thought were ―faking‖ by challenging Donald

Matthews, had territorial aspirations adverse to the interests of appellants and their

22nd Street Crew associates. The evidence surrounding this incident, especially in

the context of Arnette‘s active membership in the 22nd Street Crew and its illegal

activities, was sufficient to demonstrate his knowing participation in an agreement

with Cooper and other gang members ―to assault and kill‖ those whose goals were

contrary to those of the gang.

2. Dajuan Beaver

Appellant Beaver was identified by Devin Evans, Donald Matthews, and

Alphonce Little as a member of the 22nd Street Crew who sold illegal substances

with other gang members on 22nd Street. Alphonce Little also testified that he

shared weapons with Beaver and that Beaver carried a gun.

Beaver also played a role in the crimes against the Johnson sisters, who were

known by the gang members to be government cooperators. Beaver was involved

in assisting Cooper with his attempt to alter Kyara‘s testimony in the period

leading up to his trial. Moreover, Beaver was a key player in Laquanda Johnson‘s

murder. Beaver found the Johnson sisters on 22nd Street the evening of the

murder, convinced Alphonce Little to murder them in retaliation for their

28

cooperation with the government in Cooper‘s 2006 trial, and then assisted Little by

helping him put together a disguise before the shooting and covering up the crime

afterward. The evidence was clear that Beaver was motivated to aid in this crime

because of his membership in the 22nd Street Crew and his belief that the

objectives of the membership were contrary to those of ―snitches.‖ Thus, the

evidence was sufficient to show Beaver‘s knowing participation with other gang

members in a conspiracy to ―obstruct justice and to assault and kill‖ persons with

aims contrary to those of his codefendants.

3. Lannell Cooper

Government witnesses testified that appellant Cooper was a long-standing

and high-ranking member of the organization who by 2004 ―could tell everybody

[in the gang] what to do.‖ He was also deeply involved in the illegal drug trade on

22nd Street. Cooper was a principal in the murder of Terrence Jones for perceived

threats to the gang‘s reputation and territory on 22nd Street. And he was the

instigator of a series of attempts to obstruct justice with regard to the cooperation

of the Johnson sisters with the government in his 2006 prosecution – attempts

which were ultimately connected to Laquanda Johnson‘s murder by Alphonce

Little. Clearly, the evidence was sufficient to show his knowing participation in an

agreement with other members of the 22nd Street crew to commit obstruction of

29

justice and murder of individuals possessing interests conflicting with those of the

gang.

4. Saquawn Harris

Alphonce Little testified that appellant Harris was a member of the 22nd

Street Crew, although he was a newer member of the gang who had been

introduced to the gang and encouraged to sell drugs on 22nd Street by influential

gang member Eric Dreher. Little further stated that he sold illegal drugs with

Harris and shared weapons with him. The testimony of several police officers

bolstered Little‘s testimony about Harris‘s connection to the 22nd Street Crew by

establishing that Harris was seen regularly with Tann, Beaver, Arnette, Rushing

and other gang members on 22nd Street.

In light of these relationships, the James Taylor-Bernard Mackey incident

was probative evidence of Harris‘s participation in the conspiracy. The facts of

that incident showed that Harris, Tann, and many other gang members, responded

to an insult by an outsider, Omar Harrison, to Alphonce Little‘s girlfriend on 22nd

Street – in the heart of the gang‘s territory – and to Harrison‘s instruction to

Little‘s girlfriend to ―go get your baby[‘s] father.‖ Harris and Tann opened fire in

the direction of Omar Harrison in a sequence of events that resulted in the death of

30

James Taylor and the wounding of Bernard Mackey. Like the Terrence Jones-

Richard Queen incident, Harris‘s active participation in an event where he

violently reacted to a perceived threat to the reputation of the gang (and to the

girlfriend of a fellow gang member) was sufficient evidence of his knowing

participation in an agreement ―to assault and to kill‖ those whose interests ran

contrary to those of his gang associates.

5. James Rushing

Andre McDuffie testified that appellant Rushing had been a member of the

22nd Street Crew since the early 1990‘s; McDuffie was a senior gang member at

the time of Rushing‘s entry into the gang, and McDuffie was responsible for

teaching Rushing gang-related skills. McDuffie also testified that he saw Rushing

sell crack cocaine on a regular basis on 22nd Street. Matthews‘s testimony

additionally provided supporting evidence of Rushing‘s drug trafficking activities

with other members of the gang.

Like Beaver, Rushing played a critical role in the Laquanda Johnson murder,

which was evidence of his involvement in the conspiracy. Knowing that Little

intended to murder the Johnson sisters because of their cooperation with the

government, Rushing agreed to act as Little‘s getaway driver. Rushing drove

31

Little and Beaver from the scene of the crime after Little killed Laquanda and

wounded Keisha Frost. He also helped Little cover up the crime by instructing him

to discard his clothing, and by driving Little to Beaver‘s mother‘s house in

Maryland where Beaver stashed the murder weapon. Given Rushing‘s participation

in the Laquanda Johnson murder, the killing of a known government cooperator, in

light of Rushing‘s relationship with the 22nd Street Crew and its members, the

evidence was sufficient to show his knowing participation in the conspiracy ―to kill

or assault‖ persons (such as Laquanda) whose interests were not aligned with those

of Rushing or his associates.

6. Michael Tann

All of the government‘s ―insider‖ witnesses (McDuffie, Evans, Matthews,

and Little), as well as Tracey Tann (appellant Tann‘s wife), testified that Tann was

a well-known and high-ranking member of the 22nd Street Crew. Matthews and

Little also provided testimony about Tann‘s participation with other gang members

in the gang‘s drug trade.

More than any other appellant, Tann was also closely involved in the acts of

violence against outsiders who challenged the 22nd Street Crew‘s territory and

reputation. Tann was a key player in the Leslie Jones, Terrence Jones, and James

32

Taylor murders. Moreover, the facts point to Tann‘s repeated use of threats of

violence against potential witnesses, who might testify against his coconspirators,

in order to obstruct justice. These circumstances were sufficient to establish that

Tann – sometimes acting alongside other gang members to commit acts of violence

against perceived rivals (including Terrence Jones and Omar Harrison) –

knowingly joined and participated in an agreement ―to obstruct justice or assault or

kill‖ persons whose interests ran counter to those of the gang.

***

In sum, the evidence was sufficient to show that appellants, all members of

the 22nd Street Crew, entered into an agreement to obstruct justice by threatening

or manipulating witnesses, or to assault or kill persons whose interests were at

odds with theirs, such as rivals or cooperating witnesses, and knowingly and

voluntarily participated in that agreement. Hairston, 905 A.2d at 784. Moreover,

of the twenty-seven overt acts of the conspiracy that went to the jury, many were

supported by sufficient evidence, and at least some were supported by

overwhelming evidence.13 See Lumpkin v. United States, 586 A.2d 701, 703 (D.C.

1991).

13

For example, the facts that went to Overt Acts 28-30, which described

Little‘s murder of Laquanda Johnson and assault of Keisha Frost, were not in

dispute.

33

As to appellant‘s arguments that the proof at trial did not show a single

conspiracy, but instead showed that appellants merely engaged in ―discrete

projects, which happened within a general community ethos,‖ and that the

―indictment was so broad and unlimited as to be meaningless in a criminal

context‖, we find them unavailing. First, the evidence was sufficient to show that

appellants were engaged in actions demonstrating a core common purpose, namely

to inflict or threaten violence on rivals (real or perceived) and government

cooperators. See United States v. Graham, 83 F.3d 1466, 1471-72 (D.C. Cir. 1996)

(concluding that there was a single conspiracy where the court had ―no doubt that

[the] evidence was sufficient for a reasonable juror to conclude that appellants and

others shared the common goal of distributing crack cocaine for profit‖ despite

evidence of multiple drug-dealing ―cliques‖ operating in a particular territory).

Moreover, it is clear that the appellants and other gang members acted

together, relied on each other, and often coordinated their efforts, in order to more

effectively achieve their common goal of inflicting (or threatening) violence on

those opposed to the interests of the gang. See United States v. Gatling, 96 F.3d

1511, 1522 (D.C. Cir. 1996) (finding ―interdependence‖ existing for purposes of a

34

single conspiracy even when assistance provided by coconspirators to each other is

―fairly minimal‖); see also United States v. Richerson, 833 F.2d 1147, 1154 (5th

Cir. 1987) (―Parties who knowingly participate with core conspirators to achieve a

common goal may be members of an overall conspiracy.‖). The events of the

Terrence Jones murder-Richard Queen assault (involving Tann, Cooper and

Arnette), the James Taylor murder-Bernard Mackey assault (involving Tann,

Harris, and other gang members), and Laquanda Johnson murder-Keisha Frost

assault (involving Beaver and Rushing), are examples of such coordinated actions

by all appellants to achieve the goals of the conspiracy.

Finally, we agree with the United States Court of Appeals for the District of

Columbia Circuit that ―a conspiracy‘s purpose should not be defined in too narrow

or specific terms.‖ Gatling, 96 F.3d at 1520. Our case law demonstrates the same

principle. See Hairston, 905 A.2d at 784 (conspirators‘ aim was to ―seek[] revenge

against the 1400 block faction [of rival gang members]‖); Castillo-Campos, 987

A.2d at 483 (conspiracy‘s objective was ―to kill or otherwise ‗get‘ the rival gang

members‖). Here, although the conspiracy to ―obstruct justice and to assault and

kill anyone whose interests were contrary‖ to the gang was indeed a broadly stated

criminal objective, appellants have not cited any authority demonstrating that the

35

conspiracy count as charged was legally deficient. Cf. United States v. Romero,

897 F.2d 47, 51-52 (2d Cir. 1990) (affirming conviction for conspiring to kill a

federal officer where defendants‘ conspiracy ―was the result of a plan agreed to by

all the defendants to kill anyone posing a threat to them or [their narcotics]

business‖).

Instead, the conspiracy count adequately apprised appellants of the elements

of the offense and the time frame within which the conspiracy existed, such that

appellants could properly prepare their defenses and were protected against double

jeopardy. See United States v. Roman, 728 F.2d 846, 853-54 (7th Cir. 1984)

(indictment properly charged conspiracy where it alleged a conspiracy, the

criminal statute violated, and the time frame of the conspiracy). Therefore, we

grant no relief to appellants on the basis of their claims regarding the sufficiency of

the evidence on, or the legality of, their conspiracy charges.

B. Terrence Jones-Richard Queen Incident

1. Tann’s Convictions: Second-Degree Murder While Armed of

Terrence Jones, Armed Robbery and AWIKWA of Richard Queen, and

Possession of a Firearm During the Commission of a Crime of Violence

(“PFCV”)

36

Appellant Tann makes several sufficiency claims regarding his Terrence

Jones-Richard Queen related convictions. Emphasizing heavily the testimony of

Richard Queen and the lack of credibility of Donald Matthews, Tann challenges

the identification evidence that the jury relied on for his involvement in the entire

incident. Furthermore, he argues that, even if found to have been involved in the

event, he did not possess the state of mind required for the jury to convict him

under an aiding-and-abetting theory of liability for the second-degree murder while

armed of Terrence Jones and related counts of PFCV.

Tann‘s argument concerning the offenses in which he was the principal (the

armed robbery of Richard Queen, AWIKWA of Queen, and related weapons

offenses) is that the government‘s evidence was insufficient because it rested

solely on a single, incredible witness: Donald Matthews. However, the testimony

of a single witness is sufficient to sustain a conviction, even where contradicted by

other witnesses or evidence. Gibson v. United States, 792 A.2d 1059, 1066 (D.C.

2002). Although Matthews was not a perfect witness, the jurors credited his

testimony and it was permissible for them to do so.14 We afford the jury‘s

14

Tann‘s best evidence to counter Matthews was the testimony of the

surviving victim, Richard Queen, who testified that Tann was not among his

attackers. While powerful counterevidence, the jury could have reasonably

(continued…)

37

credibility determination substantial deference on appellate review. (Steven)

Robinson v. United States, 928 A.2d 717, 727 (D.C. 2007).

Tann‘s other claims involve those crimes of which he was convicted on an

aiding-and-abetting theory of liability (second-degree murder of Terrence Jones

and related PFCV offenses). Because he was convicted of second-degree murder

for aiding and abetting Cooper‘s shooting of Terrence Jones, the government was

required to prove that Tann had, at a minimum, a ―depraved heart‖ with regard to

Terrence Jones‘s death. Perez, 968 A.2d at 102 (―For second-degree murder, the

intent required is malice, which can be proven by evidence of a specific intent to

kill, specific intent to inflict serious bodily harm, or wanton and willful disregard

of an unreasonable human risk – also known as ‗depraved heart‘ murder.‖).

―[W]here a specific mens rea is an element of a criminal offense, a defendant must

have had that mens rea himself to be guilty of that offense, whether he is charged

as the principal actor or as an aider and abettor.‖ Kitt v. United States, 904 A.2d

348, 356 (D.C. 2006); see also Coleman v. United States, 948 A.2d 534, 552-53

(…continued)

concluded that Queen, who was attacked from behind during an extremely chaotic

situation, simply was unable to view and identify all of the men who were involved

in the attack.

38

(D.C. 2008) (extending the doctrine that the aider and abettor must share in the

mens rea of the principal to second-degree murder).

Tann portrays his attack on Richard Queen as separate and distinct from

Cooper‘s and Arnette‘s attack on Terrence Jones; further, Tann claims that there

was no evidence that he knew Cooper was going to shoot Terrence Jones or that he

helped Cooper with the shooting. To be sure, there was no evidence of any pre-

attack discussion or coordination between Tann, Cooper, and Arnette in which the

gang members explicitly identified Terrence Jones‘s death as a goal.

However, the government had powerful evidence of a joint and coordinated

effort, and of Tann‘s ―depraved heart,‖ through testimony that as the attack was

escalating, Cooper ordered Arnette, Tann, and others, to rob Terrence Jones and

Richard Queen – an order which was carried out by its recipients. This was done

when Cooper directed his cohorts to ―Pat them niggers‘ pockets.‖ The evidence

was not perfectly clear to whom this order was issued and precisely when Cooper

said it in the course of events; however, a fair interpretation of the evidence

suggests that it was made by Cooper to both Arnette (who was covering Terrence

Jones) and the men (including Tann) who were attacking Queen.

39

This understanding of the evidence was bolstered by testimony that

Cooper‘s instructions were immediately carried out by Tann, Arnette, and others,

with regard to both Terrence Jones and Richard Queen. The close proximity of the

attack on Terrence Jones and the attack on Queen, a matter of approximately ten

feet according to witnesses, in conjunction with these robbery instructions,

sufficiently proved that the attacks were a knowingly organized (if not verbally

articulated) venture designed to allow Tann and his fellow gang members tactically

to divide their victims in order to better subdue, rob, and eventually shoot both of

them. Moreover, the jury could have easily inferred from the close proximity of

the assaults that as Tann attacked Queen, he saw Cooper (a man by reputation

known to have a history of violence) striking Terrence Jones and pointing a gun at

him.

Given these circumstances, it was reasonable for the jury to have found that

Tann displayed a ―wanton and willful disregard of an unreasonable human risk‖ to

the life of Terrence Jones when he isolated, neutralized, robbed, and ultimately

shot the man who he knew was in a position to come to Terrence Jones‘s aid:

40

Richard Queen. See (Darion) Ingram v. United States, 40 A.3d 887, 900-01 (D.C.

2012); Perez, 968 A.2d at 102.

Analyzing Tann‘s PFCV offenses associated with Cooper‘s murder of

Terrence Jones, our case law instructs that ―[w]hen the government relies on an

aiding and abetting theory to prove PFCV, it is not enough to show that the

defendant participated ‗in the ―larger scheme‖ of the [crime].‘‖ Fox v. United

States, 11 A.3d 1282, 1287 (D.C. 2011) (quoting Lancaster v. United States, 975

A.2d 168, 175 (D.C. 2009)). ―Rather, the government must prove some act on the

defendant‘s part that assisted the [principals] in their possession of firearms . . . .‖

Fox, 11 A.3d at 1287 (internal quotation marks and emphasis omitted). Tann‘s

case is distinguishable from cases such as Fox and Lancaster where we found

PFCV offenses insufficient in the aiding-and-abetting context.

By complying with Cooper‘s directive to rob Richard Queen, the jury could

have found that Tann assisted Cooper in maintaining possession (by preventing

Queen from coming to the aid of his friend) of the firearm that he was using in the

course of the murder of Terrence Jones. The facts show that Tann took affirmative

steps to help Cooper keep possession of his firearm by subduing Queen in a

41

number of ways: (1) patting Queen‘s pockets – at Cooper‘s direction; (2) striking

Queen; (3) robbing Queen; (4) and ultimately shooting Queen as he ran for safety

where he could have called for help for Terrence Jones. Furthermore, the fact that

Terrence Jones resisted Cooper by hitting him suggested that Tann‘s actions

toward Queen were helpful in ensuring that Queen could not aid Jones in further

interfering with Cooper‘s possession of the weapon. Dang v. United States, 741

A.2d 1039, 1043 (D.C. 1999).

The facts of Dang, where we found that the evidence was sufficient to show

that appellant aided and abetted his codefendants in the possession of their

firearms, are very similar to the facts here. In Dang, although the defendant did

not possess a weapon, the evidence demonstrated that he ―worked in concert with

[his codefendants] by, among other things, blocking the door, guarding [one

victim] and pointing a knife at [a second victim].‖ Id. Here, like in Dang, Tann

helped Cooper maintain possession of his weapons through his actions, working in

concert with those of Cooper, to neutralize Richard Queen.

Therefore, we reject in their entirety Tann‘s arguments challenging the

sufficiency of the evidence for his convictions related to the Terrence Jones-

Richard Queen incident.

42

2. Arnette’s Convictions: Second-Degree Murder While

Armed of Terrence Jones, Armed Robbery of Richard Queen,

and PFCV

Like Tann, appellant Arnette argues that the evidence was insufficient as to

the mens rea elements required for his Terrence Jones murder-Richard Queen

assault related convictions. The government pursued each of the counts in the

indictment against Arnette related to this incident under an aiding-and-abetting

theory of liability.

Kyara Johnson testified that Arnette initiated the attack by calling for

Cooper and telling him to confront Terrence Jones and Richard Queen while

armed, i.e., with his ―hammer.‖ Kyara also testified that Arnette patted Terrence

Jones‘s pockets, at Cooper‘s command, and struck him with his hands while

Cooper had his gun drawn. Certainly, if believed, this would amount to active

participation in the assault on Terrence Jones. However, as Tann does, Arnette

argues that his involvement in the offense did not demonstrate the necessary state

of mind for second-degree murder because he had no reason to believe that Cooper

would shoot Terrence Jones. Also like Tann, Arnette relies on the fact that there

was no previous conversation with Cooper about intending to kill Terrence Jones

or any evidence that Arnette did anything to encourage Cooper to do so. Instead,

43

he argues that the shooting was a ―spontaneous reaction by Cooper‖ to Terrence

Jones‘s unexpected resistance to the attack.

Arnette further argues that the evidence is even more attenuated, and

therefore also insufficient, regarding his convictions for aiding and abetting Tann

in the armed robbery of Richard Queen. He claims that there is no reasonable

inference to be drawn from his actions toward Terrence Jones (patting his pockets

and/or hitting him) that supports the notion that he shared in Tann‘s intent to rob

Queen.

The government witnesses against appellant Arnette were often inconsistent

and sometimes exculpatory in their testimony. However, the question here is

whether, viewing the evidence in the light most favorable to the government,

Arnette‘s conduct demonstrated the ―depraved heart‖ (if not a more criminally

culpable) state of mind required for the second-degree murder of Terrence Jones,

the specific intent to commit armed robbery of Queen, and knowledge of Cooper‘s

and Tann‘s use of firearms, as well as assistance to Cooper and Tann in

maintaining possession of those firearms, as required by the associated PFCV

offenses. The key facts, as to the offenses involving both victims, were: (1)

44

Arnette instigated the entire event by identifying Terrence Jones and Richard

Queen to Cooper and telling him that the two men were on 22nd Street ―faking‖;

(2) Arnette instructed Cooper to ―bring his hammer,‖ meaning Cooper‘s gun,

thereby anticipating and inciting violence; (3) Arnette complied with Cooper‘s

order to pat Terrence Jones‘s pockets; (4) Arnette hit Terrence Jones in the course

of the attack; (5) Tann violently assaulted Queen less than ten feet away from

Arnette‘s and Cooper‘s attack on Terrence Jones; and (6) Cooper phrased his

―robbery‖ instruction in the plural, so Arnette would have known that there were

two victims to be jointly controlled and subdued by the attackers.

As to the offenses in which Arnette aided and abetted Cooper (second-

degree murder and associated PFCV offenses), the evidence against Arnette was

clearly sufficient. See (Darion) Ingram, 40 A.3d at 900-01; Perez, 968 A.2d at

102. Arnette‘s instigation of the violent attack on Terrence Jones and his active

assistance during its undertaking demonstrated, at a minimum, a ―wanton and

willful disregard of an unreasonable human risk.‖ Perez, 968 A.2d at 102.

Moreover, the PFCV convictions underlying the Terrence Jones offenses were also

based on sufficient evidence given that Arnette himself instructed Cooper to bring

his gun to confront Terrence Jones and Richard Queen – obviously demonstrating

45

the requisite awareness and knowledge of Cooper‘s use of a firearm. Then,

Arnette took steps to assist Cooper in maintaining possession of the firearm during

Cooper‘s attack on Terrence Jones. See Fox, 11 A.3d at 1287; Lancaster, 975

A.2d at 175; Dang, 741 A.2d at 1043.

For the robbery conviction of which Arnette was an accomplice to Tann, the

government was required to show that Arnette had the specific intent to aid and

abet Tann in the robbery of Richard Queen. Lattimore v. United States, 684 A.2d

357, 359-60 (D.C. 1996). Certainly, there was no evidence of a pre-attack

discussion outlining robbery as a goal of the attack which would have made the

government‘s case clear-cut. Arnette relies on a Virginia case, McMorris v.

Commonwealth, 666 S.E.2d 348, 352 (Va. 2008), for the proposition that

―[r]obbery is not an incidental, probable consequence of an assault; robbery

requires a completely different type of wrongdoing: stealing.‖ Indeed, a joint

assault plus close proximity to a codefendant‘s robbery may be insufficient to

show specific intent to commit robbery under an aiding-and-abetting theory of

liability. But the facts here are not so limited.

46

As we have already discussed, between the first stages of the attack and

Tann‘s subsequent robbery of Richard Queen, Cooper issued his robbery

instructions. And Cooper phrased his instructions in the plural: ―Pat them niggers‘

pockets.‖ These instructions were followed by Arnette‘s patting of Terrence

Jones‘s pockets, which could have been reasonably interpreted as a robbery

attempt by Arnette on Jones. The fact that Arnette heard and executed Cooper‘s

instructions strongly implied that Arnette knew exactly what Tann (one of the

other recipients of Cooper‘s instructions) was similarly doing to Queen, and

Arnette was intentionally aiding and abetting the robbery of Queen through his

actions containing and subduing Terrence Jones. Again, it was reasonable for the

jury to have viewed the entire attack (including the robbery) as a coordinated

venture among Cooper, Tann, Arnette, and others, in which the gang members

worked together, at Cooper‘s direction, to make their attack on both victims more

successful through combined efforts. See Downing v. United States, 929 A.2d 848,

862 (D.C. 2007) (defendant‘s presence at the scene of a crime plus conduct which

facilitates a crime supports an inference of guilt as an aider and abettor). So

viewed, the evidence was legally sufficient for the jury to find that Arnette

possessed the state of mind necessary for the second-degree murder of Terrence

47

Jones, the robbery of Richard Queen, and the PFCV offenses associated with

Cooper‘s murder of Jones.

However, the analysis is different as to Arnette for the ―armed‖ component

of the robbery of Richard Queen and the related PFCV offense. Unlike Cooper‘s

robbery instructions, which put Arnette on notice that Queen was about to be

robbed, there was no similar mechanism by which Arnette was put on notice that

Queen was about to be robbed by the use of a firearm. There is no evidence that

Tann was in possession of a weapon prior to the point when Donald Matthews saw

Tann pick up a gun from the ground during the melee and immediately use it to

shoot Queen. Although arguably Arnette should have anticipated or foreseen that

Tann would use a weapon, especially in light of Arnette‘s statement to Cooper that

Cooper should bring his weapon, recent case law from the Supreme Court, as well

as this court, teaches that foreseeability alone is insufficient to support such a

judgment of conviction under an aiding-and-abetting theory of liability.

In order to convict of an offense requiring the use of a firearm by a principal,

the government must prove that the aider and abettor knew in advance that his

associate was armed with a gun – enabling the defendant to ―make the relevant

48

(and indeed, moral) choice‖ to aid and abet an armed offense. Rosemond v. United

States, 134 S. Ct. 1240, 1249 (2014) (―[A]n unarmed accomplice cannot aid and

abet a [PFCV-type] violation unless he has foreknowledge that his confederate will

commit the offense with a firearm.‖) (internal quotation marks omitted); (Leon)

Robinson v. United States, No. 11-CF-1443, slip op. at 21 (D.C. Sept. 25, 2014)

(―A person cannot intend to aid an armed offense if she is unaware a weapon will

be involved.‖). Here, there was insufficient evidence that Arnette had advance

knowledge that Tann was armed during the robbery of Richard Queen.

Under these circumstances, the mere proximity of Arnette to Tann was not

enough to infer such knowledge. The evidence showed that Tann picked up a

firearm and used it to rob and shoot Richard Queen quite late in the timeline of the

incident, giving Arnette no meaningful notice (if any at all) that Tann was going to

use the gun to effectuate his attack on Queen. Cf. Rosemond, 134 S. Ct. at 1250

n.9 (―Of course, if a defendant continues to participate in a crime after a gun was

displayed or used by a confederate, the jury can permissibly infer from his failure

to object or withdraw that he had such knowledge.‖).

49

Had there been some evidence from which the inference could be drawn that

Arnette had advance knowledge that Tann was using a gun to carry out the

robbery, as well as evidence that Arnette assisted Tann in maintaining possession

of the firearm, and decided to proceed with his involvement in the attack on

Terrence Jones and Queen, our conclusion would be different. However, we see

insufficient evidence based on this record. See Rivas v. United States, 783 A.2d

125, 134 (D.C. 2001) (en banc) (―[I]f the evidence, when viewed in the light most

favorable to the government, is such that a reasonable juror must have a reasonable

doubt as to the existence of any of the essential elements of the crime, then the

evidence is insufficient and we must say so.‖) (internal quotation marks omitted).

Therefore, we vacate the judgment as to the ―armed‖ component of

Arnette‘s robbery conviction and his PFCV conviction associated with the robbery.

The lesser-included offense of unarmed robbery, and all of Arnette‘s other

convictions related to this incident are affirmed.15

15

See (Leon) Robinson, No. 11-CF-1443, slip op. at 37-38 (permitting the

government to ―accept[] the entry of judgment for [the] lesser-included unarmed

offense‖ of unarmed robbery after holding that the trial court committed

instructional error, but concluding that the error did not affect the jury‘s findings

on the elements of the lesser-included offense). Here, there has been no claim of

instructional error with regard to the jury instruction concerning the state of mind

required for conviction of PFCV under an aiding-and-abetting theory of liability.

(continued…)

50

C. James Taylor-Bernard Mackey Incident

Appellants Tann and Harris challenge the sufficiency of the evidence for

their convictions based on the James Taylor and Bernard Mackey incident.

Fundamentally, their claims turn on how the law of aiding and abetting is to be

applied to the facts of this event. In addition to their sufficiency arguments,

appellants raise two related claims, one regarding the aiding-and-abetting

instruction given to the jury, and another regarding the trial court‘s ―curtailment‖

of their closing arguments. Since all of these arguments turn on whether the court

properly decided the legal issue related to the theory of liability, they are all

addressed here.

(…continued)

Therefore, despite the insufficiency of the evidence on the armed component of

Arnette‘s robbery conviction and the associated PFCV offense, there was no

reasonable possibility that the jury‘s permissible finding of the elements of

Arnette‘s lesser-included offense of unarmed robbery of Richard Queen, or of his

Terrence Jones murder-related offenses (resulting in three convictions for second-

degree murder and associated PFCV offenses based on Cooper‘s use of a weapon),

was affected. Cf. id. at 37-42. As we did in (Leon) Robinson, we conclude that

there is ―no unfairness that we can discern in reducing [Arnette‘s] conviction to

[the] lesser included offense[]‖ because Arnette ―had full notice of [his] potential

liability for the lesser crime[] and there is no indication that defense presentation

would have been altered if the armed charges had been dismissed at the end of the

government‘s case or if the trial court had instructed the jury on the lesser-included

offense[].‖ Id. at 38 (internal quotation marks omitted) (quoting Allison v. United

States, 409 F.2d 445, 451 (D.C. 1969)). See also Jackson v. United States, 940

A.2d 981, 996 (D.C. 2008) (remanding the case to the trial court with instructions

to enter judgment of conviction on a lesser-included offense).

51

The government argued that there were three shooters within the group of

gang members who raced toward Omar Harrison after his dispute with Alphonce

Little‘s girlfriend, Ashley Tyndle, from different directions on 22nd Street:

appellants Tann and Harris, as well as a third shooter, junior gang member Robert

Foreman. But the government presented evidence that additional gang members

were shooting as well. Latina Anderson testified that she saw between five and ten

men, including gang members Tann, Harris, Little, and Blaylock, emerge from

nearby ―cuts‖ and shoot at Harrison.16 Christina Anderson told the grand jury that

she saw Tann and Blaylock shooting. Donnise Harris saw Tann, Harris, and ―a lot

of people‖ running and shooting. Thus, if credited, the testimony of several

witnesses established that there were a number of 22nd Street Crew members at the

scene of the crime moving toward Omar Harrison in a hostile manner and

shooting.

16

Little and government witness Travis Honesty denied that Little was

shooting, but Little testified that he would have been shooting if he had had a gun

at the time. Firearms examiner Robert Harvey testified that there were ―three

firearms that [he] kn[e]w of for sure[,]‖ but agreed that ―[t]here could have been

more[.]‖

52

Furthermore, there was testimonial evidence – not really disputed on appeal

– tending to show that Harris and Tann opened fire on 22nd Street with the intent

to shoot Harrison and that they were each aware of each other‘s presence at the

time of the shooting. Anderson testified that some other shooters were standing

within a few steps of Tann and Harris while they all were shooting, thus permitting

an additional inference that Harris and Tann were aware of the presence and

participation of other gang-member shooters. However, there appears to have been

no evidence to suggest that either Harris or Tann was aware of the specific

presence and participation of Foreman until after the incident was complete.

Foreman was shooting from a different position on 22nd Street than either Harris

or Tann. The testimony was that Foreman saw and heard Tann and Harris firing at

Harrison, felt compelled to join in the attack, and started shooting as well. The

evidence was ambiguous as to which of the shooters, Harris, Tann, Foreman, or

someone else, actually fired the shot or shots that hit James Taylor and Bernard

Mackey.

There was at least some evidence to show, primarily through the testimony

of Alphonce Little, that James Taylor was not killed until after Harris‘s gun ran out

of bullets and he stopped firing at Omar Harrison. Based on his statements to his

53

fellow gang members, Robert Foreman appeared to believe, or want others to

believe, that his shot hit Taylor.

The forensic evidence was of limited value. Although it was clear that

James Taylor had been killed by a gunshot wound to the head, the fatal bullet

passed through him and was not identified during the investigation. Therefore,

there was no link between the fatal bullet and a particular gun or shooter;

additional forensic evidence was of minimal weight in identifying the actual killer,

and the government essentially conceded this at trial. The evidence was even less

clear with regard to Bernard Mackey. No evidence was presented linking the

bullet that grazed Mackey with any particular shooter.

The government charged Harris and Tann with the premeditated murder of

James Taylor and AWIKWA of Bernard Mackey. It told the jury they could

convict Harris and Tann of Taylor‘s murder and (using transferred intent) of

Mackey‘s assault either as principals or based on an aiding-and-abetting theory of

liability.

54

Because the government did not know who fired the fatal shot, and also did

not contend that Harris and Tann knowingly or intentionally associated themselves

with Robert Foreman in particular at the time of the shooting,17 it argued that,

regardless, aiding-and-abetting liability rendered each one criminally responsible

for the others‘ actions if they all aided in the commission of the offense by firing at

Omar Harrison.

Harris and Tann contended that accomplice liability requires proof that the

defendant was ―consciously helping the person that was the principal‖ (whom, they

argue, the jury could have found to be Robert Foreman). According to appellants‘

brief on appeal, to convict Harris and Tann of aiding and abetting Foreman‘s

crime, the jury was required to find ―beyond a reasonable doubt that [appellants

were] aware of Mr. Foreman‘s presence and aware that by firing first, they would

cause Mr. Foreman to commit the acts that would result in the decedent‘s death.‖

After litigating the issue, the trial court agreed with the government that if

―you can show that the person aided and abetted the crime itself[,] you‘ve solved

17

The government did, however, remind the court of evidence that showed

that ―this is not a situation where Mr. Harris didn‘t know Mr. Foreman. There is

evidence that these two men shared guns together, and that Mr. Foreman was a

member of the conspiracy.‖

55

the intent problem.‖ Accordingly, the judge gave the pattern instruction for aiding

and abetting, which does not reference intentional association with the principal.

In relevant part, the instruction reads: ―To find that a defendant aided and abetted

in committing a crime, you must find that the defendant knowingly associated

himself with the commission of the crime, that he participated in the crime as

something he wished to bring about, and that he intended by his actions to make it

succeed.‖ Criminal Jury Instructions for the District of Columbia, No. 3.2 (5th ed.

rev. 2013). During closing arguments, the trial judge further informed the jury

that there are two ―types‖ of aiding and abetting: ―if you knowingly aid and assist

the [principal] . . . [or] if you knowingly aid and abet the crime.‖ In addition, the

trial court instructed the jury that it is ―not the law‖ that ―‗[i]f you don‘t know who

the shooter is or that they are present, you can‘t possibly be working together in a

18

coordinated effort‘ and ‗can‘t be an aider and abettor.‘‖

On this issue, we find ourselves confronted with a very unusual fact pattern.

There is no case in this jurisdiction that has addressed the legal viability of an

aiding-and-abetting theory of liability as applied to a defendant whose actions

18

Nevertheless, Harris‘s counsel argued to the jury that, ―you can‘t help a

crime that is occurring because some unknown person is committing that crime if

you‘re unaware that that person is there.‖

56

actually aided the principal, and who possessed the same criminal intent as the

principal, but who was unaware of the presence and participation of the principal at

the time the criminal offense occurred. Because of the challenging nature of this

issue, we pause to flesh out the arguments of the parties – neither of which we fully

accept.

1. The Government’s Argument

The government‘s argument is that there are two manners in which a

defendant in this jurisdiction can be guilty of aiding and abetting. One way is to

aid and abet the principal offender in his or her commission of a crime. The other

way is to ―advise,‖ ―incite,‖ or ―connive‖ at the offense itself, regardless of

―intentional association‖ between the principal and the aider and abettor. The

government emphasizes the plain language of the aiding-and-abetting statute, D.C.

Code § 22-1805 (2012 Repl.), which reads:

In prosecutions for any criminal offense all persons

advising, inciting, or conniving at the offense, or aiding

or abetting the principal offender, shall be charged as

principals and not as accessories, the intent of this section

being that as to all accessories before the fact the law

heretofore applicable in cases of misdemeanor only shall

57

apply to all crimes, whatever the punishment may be.

[Emphasis added.]19

The government argues that the ―or‖ in the statute makes it disjunctive, and

therefore creates these two categories of aiders and abettors. The government‘s

position is that Tann and Harris were guilty of the ―first‖ form of aiding and

abetting, which holds accomplices liable if they advise, incite, or connive ―at the

offense,‖ regardless of the relationship, if any, between the accomplice and the

principal. Therefore, the government contends, because Tann and Harris incited

the crime by shooting at Omar Harrison, causing Foreman also to open fire, Tann

and Harris need not have ―intentionally associated‖ with Foreman in order to be

guilty of his crimes (assuming Foreman was the principal).

19

The purpose of D.C. Code § 22-1805 was to ―abolish the distinction

between principals and accessories and render them all principals.‖ Perez, 968

A.2d at 93 (alterations omitted); see also Standefer v. United States, 447 U.S. 10,

19-20 (1980) (interpreting the similarly-worded federal aiding-and-abetting statute,

18 U.S.C. § 2 (a) (2014): ―all participants in conduct violating a federal criminal

statute are ‗principals‘‖); ).(Edward) Thompson v. United States, 30 App. D.C.

352, 364 (D.C. Cir. 1908) (―By the common law, all persons who command,

advise, instigate, or incite the commission of an offense, though not personally

present at its commission, are accessories before the fact, and the object of the

aforesaid section was to make all such persons principal offenders.‖). The statute

―merely extended [the] doctrine of vicarious responsibility to additional classes of

offenders by treating them as principals.‖ Hazel v. United States, 353 A.2d 280,

283 n.9 (D.C. 1976). That narrow purpose notwithstanding, ―it is not, and cannot

be, our practice to restrict the unqualified language of a statute to the particular evil

that Congress was trying to remedy -- even assuming that it is possible to identify

that evil from something other than the text of the statute itself.‖

Brogan v. United States, 522 U.S. 398, 403 (1998).

58

The government attempts to bolster this argument by citing to a series of

cases, particularly from this court, in which the aiding-and-abetting standard is

articulated with reference to the offense, without dependence on a relationship

between the accomplice and the principal. See, e.g., English v. United States, 25

A.3d 46, 52 (D.C. 2011) (―To be guilty as an aider and abettor of a charged offense

. . . the defendant must be shown to have assisted or participated in that crime with

guilty knowledge.‖) (internal quotation marks and emphasis omitted); Tyree v.

United States, 942 A.2d 629, 637 (D.C. 2008) (―[T]he jury may [] convict of aiding

and abetting in cases where the evidence is disputed as to who, as between the

defendant and someone else, was the principal, so long as there is evidence that the

defendant participated – in one capacity or the other – in the events that led to

commission of the crime.‖); see also Rosemond, 134 S. Ct. at 1249 (―So for

purposes of aiding and abetting law, a person who actively participates in a

criminal scheme knowing its extent and character intends that scheme‘s

commission.‖).

2. Appellants’ Argument

Appellants‘ argument is that aiding and abetting has historically required the

aider and abettor to ―intentionally associate‖ himself or herself with a particular

59

individual who was the principal, with liability attaching only if the accomplice

―know[s] of the principal‘s presence and criminal intentions.‖ Appellants cite

authorities articulating aiding-and-abetting standards that specifically reference the

principal in their formulations. See, e.g., Kitt, 904 A.2d at 356 n.10 (―[T]he basic

requirement . . . now almost universally accepted [is that] the accomplice be shown

to have intended that the principal succeed in committing the charged offense.‖)

(citation and internal quotations omitted) (quoting Wilson-Bey v. United States,

903 A.2d 818, 831 (D.C. 2006) (en banc)); United States v. (Dwayne) Washington,

106 F.3d 983, 1004 (D.C. Cir. 1997) (elements of aiding and abetting include ―the

specific intent to facilitate the commission of a crime by another‖); see also

WAYNE R. LAFAVE, CRIMINAL LAW § 13.2 (b) (5th ed. 2010) (―Generally, it may

be said that accomplice liability exists when the accomplice intentionally

encourages or assists, in the sense that his purpose is to encourage or assist another

in the commission of a crime as to which the accomplice has the requisite mental

state.‖). Appellants extrapolate that ―intentional association‖ with the principal is,

and has always been, required for aiding-and-abetting liability.

Appellants argue that based on the government‘s evidence, the jury could

have found that Robert Foreman was the principal in the James Taylor murder.

60

Because, appellants argue, they had no knowledge of Foreman‘s involvement in

the incident and no intent to help or encourage Foreman to commit criminal

activities, they could not have aided and abetted him in his crimes. Although the

evidence was ambiguous as to who was actually the principal in both the murder

and the AWIKWA, appellants argue that the court‘s instruction ensured that they

would be convicted, even if the jury found that Foreman was the principal and that

appellants had no knowledge of his presence or participation at the time of the

crime (which would certainly have been reasonable for the jury to do).

3. Analysis

Fundamentally, the elements of aiding and abetting are that ―(a) a crime was

committed by someone; (b) the accused assisted or participated in its commission;

and (c) his participation was with guilty knowledge.‖ Hawthorne v. United States,

829 A.2d 948, 952 (D.C. 2003).20 ―A culpable aider and abett[o]r need not

20

See also United States v. (Matthew) Moore, 708 F.3d 639, 649 (5th Cir.

2013) (elements of aiding and abetting are: (1) the substantive offense occurred

(2) the defendant associated with the criminal venture; (3) the defendant purposely

participated in the criminal venture; and (4) the defendant sought by his actions to

make the venture successful); United States v. Staten, 581 F.2d 878, 886-87 (D.C.

Cir. 1978) (―the elements of the offense of aiding and abetting are: (1) guilty

knowledge on the part of the accused; (2) that an offense was committed by

someone; (3) that the defendant assisted or participated in the commission of the

offense‖) (alterations omitted).

61

perform the substantive offense, need not know its details, and need not even be

present, so long as the offense committed by the principal was in furtherance of the

common design.‖ United States v. Sampol, 636 F.2d 621, 676 (D.C. Cir. 1980)

(citations omitted). ―[I]t is not essential that the principal in the operation be

identified so long as someone has that status.‖ Gayden v. United States, 584 A.2d

578, 582 (D.C. 1990) (internal quotation marks and alteration omitted).

In Wilson-Bey, we dealt with a first-degree premeditated murder prosecution

under D.C. Code § 22-1805 and held that ―whether the defendant is charged as a

principal or as an aider or abettor, the government must prove all of the elements

of the offense, including premeditation, deliberation, and intent to kill.‖ 903 A.2d

at 822. In doing so, we adopted the rule of United States v. Peoni, 100 F.2d 401

(2d Cir. 1938), and rejected the ―natural and probable consequences‖ approach to

accomplice liability because it ―impermissibly relieved the government of the

burden of showing that the accomplice had the mens rea required to be guilty of

the offense.‖ In re D.N., 65 A.3d 88, 95 n.8 (D.C. 2013); see also Nye & Nissen v.

United States, 336 U.S. 613, 618-19 (1949) (―In order to aid and abet another to

commit a crime it is necessary that a defendant ‗in some sort associate himself with

the venture, that he participate in it as in something that he wishes to bring about,

62

that he seek by his action to make it succeed.‘‖ (quoting Peoni, 100 F.2d at 402)).

We held that an aider and abettor must act with the mens rea required by the

specific crime with which the principal is charged and ―be an associate in guilt of

that crime.‖21 Wilson-Bey, 903 A.2d at 831 (emphasis omitted) (quoting Roy v.

United States, 652 A.2d 1098, 1104 (D.C. 1995)). We explained in Wilson-Bey,

however, that, nothing in the opinion ―casts doubt on the propriety of [an]

instruction . . . to the effect that a jury may . . . infer that a person intends the

natural and probable consequences of his or her acts knowingly done or knowingly

omitted.‖ 903 A.2d at 839 n. 38 (original brackets omitted). Such a presumption,

we observed, ―does not distinguish between principals and accomplices, nor does it

expand the liability of one but not of the other.‖ Id.

What we must do in this case, which we did not do in Wilson-Bey because

the question was not presented, is determine whether the aider and abettor who

acts, as Wilson-Bey requires, with the same purpose and intent as the principal

must also ―intentionally associate‖ with that specific principal. More pointedly,

21

Wilson-Bey‘s holding was extended to the offense of AWIKWA, also a

specific intent crime, and to offenses not requiring specific intent. See McCrae v.

United States, 980 A.2d 1082, 1090 (D.C. 2009); see also Perry v. United States,

36 A.3d 799, 808 (D.C. 2011) (―We have by now made clear that Wilson-Bey is

not limited to specific intent crimes.‖) (internal quotation marks omitted).

63

the question here is whether the aider and abettor must know of the presence and

conduct of the specific principal and form the intent to help him or her with the

commission of his or her crime, as opposed to share simply (with whoever shared

the aider and abettor‘s purpose) in the mens rea required to commit the crime

itself.22 Although the evidence was disputed at trial, we assume for the purposes of

this opinion that it was Robert Foreman who fired the bullets that hit James Taylor

and Bernard Mackey, and therefore, was the principal in the crimes committed

against them. We also assume, because here it appears from the record that the

evidence was undisputed, that Tann and Harris were unaware of Foreman‘s

presence during the attack.

22

Both parties attempt to use the language of Wilson-Bey and Peoni to

support their argument. Indeed, there is language that cuts both ways in those

opinions. Compare Wilson-Bey, 903 A.2d at 840 (―[T]he government must prove,

in conformity with Peoni, that the accomplice in some sort associated himself with

the venture, that he participated in it as in something he wished to bring about, and

that he sought by his action to make it succeed.‖) (emphasis added and internal

quotation marks and alterations omitted) with id. at 831 (―Every United States

Circuit Court of Appeals has adopted Peoni‘s requirement that the accomplice be

shown to have intended that the principal succeed in committing the charged

offense . . . .‖) (emphasis added). The same could be said for other opinions of this

court. Compare English, 25 A.3d at 52 (―To be guilty as an aider and abettor of a

charged offense . . . the defendant must be shown to have assisted or participated in

that crime with guilty knowledge.‖) (internal quotation marks omitted) with id. at

53 (―The key question is whether . . . [the accomplice] intentionally participated in

[the principal‘s offense] and that he not only wanted [him] to succeed . . . but that

he also took concrete action to make his hope a reality.‖). It seems fair to say that,

in all these cases, the judicial mind was not focused on the issue we now confront.

64

The language of D.C. Code § 22-1805 is silent on whether its terms that

describe the accomplice‘s advising, inciting, conniving, or aiding and abetting the

principal offender in the criminal venture are to be infused with the ―intentional

association with a principal of whom the defendant is aware‖ requirement

advanced by appellants. Our case law is also silent on this specific point. In the

normal case, unlike here, there is little question about the alleged accomplice‘s

awareness of the role of the principal – if not aware of every detail about the

principal‘s involvement in the crime at issue, the accomplice is at least aware of his

or her presence and participation.

Because our statute, like its federal counterpart, incorporates the common

law,23 we must look to cases with analogous facts interpreting the common law in

order to test appellant‘s theory that the possibility of recognizing aiding and

abetting on unusual facts such as those presented in this case was unknown to the

common law, and that recognizing such liability in this case would create liability

where it did not exist before. See Outlaw v. United States, 632 A.2d 408, 411

(D.C. 1993) (interpreting the elements of D.C. Code § 22-1806, the District of

23

See (Edward) Thompson, 30 App. D.C. at 364; see also Rosemond, 134 S.

Ct. at 1245-46.

65

Columbia accessory-after-the-fact statute, in light of the common law in the

absence of statutory definitions).

We begin with Whitt v. Commonwealth, 298 S.W. 1101 (Ky. 1927). In that

case, while appellant Whitt was firing at Scott (a law enforcement officer who was

attempting to arrest him), a third-party, Stanley, appeared and fatally shot Officer

Scott. The court observed:

It is clear that appellant in resisting arrest, and in firing at

Scott, was attempting to do so to evade arrest, and not

only is there nothing to show that Stanley was interested

in appellant’s successful evasion of arrest but there is no

evidence to show what prompted Stanley in firing the

shot at Scott. Whether he had any other and different

reason for firing at him is not disclosed, and there is no

evidence that appellant advised, counseled, or incited him

to fire that shot in any way, or that a word had been

spoken between them in any way just prior to, during, or

at the time of the difficulty.

The intent or purpose of appellant in firing at Scott is

apparent, but there is a lack of evidence from which it

may be surmised that Stanley in firing his shot shared the

intent or purpose with which appellant had fired his, or

in fact what his purpose was.

Id. at 1102 (italics added). In concluding that Whitt could not be properly be

convicted as an aider and abettor, the court reasoned:

66

In this case we have the intent which prompted appellant

to commit the offenses committed by him, but there is a

lack of evidence to show that he shared in any criminal

intent or purpose which prompted Stanley to fire the fatal

shot. So far as this record discloses, Stanley may have

had some criminal intent totally foreign to and

disconnected from the intent which prompted appellant;

in other words, Stanley may have seized upon the

opportunity thus presented to him to even up an old score

with Scott with which appellant was totally disconnected,

and with which criminal intent he had no connection and

no sympathy.

Id. at 1103 (italics added).24 The court‘s reasoning strongly implies that had there

been evidence that Stanley ―was interested in appellant‘s successful evasion of

arrest,‖ that Stanley thus ―shared the intent or purpose‖ with which [Whitt] had

fired his‖ shot, and that Whitt shared in the purpose which ―prompted Stanley in

firing the shot at Scott,‖ the court would not have reversed Whitt‘s aiding and

abetting conviction.

The reasoning of Landrum v. Commonwealth, 96 S.W. 587 (Ky. 1906), is

similar to that of Whitt. There, a group of men, ―more or less drunk‖ and

24

Cf. State v. Ochoa, 72 P.2d 609, 616 (N.M. 1937) (―The accused may not

be held for the independent act of another even though the same person be the

victim of an assault by both. In such circumstances there is wanting that sharing of

criminal intent essential to proof of aiding and abetting.‖).

67

motivated by an inter-family quarrel, involved themselves in ―a shooting affray‖

near the defendant‘s house. Id. at 587-88. The defendant, roused from sleep by

the shooting and also ―more or less drunk‖ while apparently unaware of the

motivations of the warring families, saw a third-party unassociated with the

feuding groups ―staggering about‖ and opened fire. Id. at 587. The defendant‘s

bullets struck the third-party but merely wounded him superficially. Meanwhile, a

bullet fired by someone other than the defendant also hit the third-party, killing

him. Id. at 587-88. There was no evidence that the defendant was acquainted with

the man who was charged as the principal in the killing. Id. at 588. The court, in

concluding that the defendant could not be guilty of aiding and abetting the actual

killer, found that ―whatever may have been the purpose or motive of the [other

shooters] . . . there was not a scintilla of proof that appellant knew of it or shared it

to any extent.‖ Id. at 588.

The type of evidence that was missing in Whitt and Landrum is present here.

Here, according to Little‘s testimony, which the government highlighted in closing

argument,

[Foreman] said he seen Ashley [Tyndle] arguing with

some dude [Harrison] . . . So he said he got out his car

68

and start walking towards there and he seen [appellant

Harris] and somebody else coming around the corner. So

he said, man, they got it. So he went back towards his

house . . . . [but then] heard a gunshot . . . [so then he]

turn[ed] around and start shooting.

In other words (in conjunction with testimony by other witnesses about Harris‘s

and Tann‘s actions after hearing about the argument between Harrison and

Tyndle), Little‘s testimony established (1) that Foreman shot at Harrison for the

same reason Harris and Tann shot at Harrison, and (2) that Foreman, Harris, and

Tann shared the purpose that prompted Foreman to fire the fatal shot: to avenge

Harrison‘s hostile conduct toward the woman (Tyndle) who was the girlfriend of

22nd Street crew member Little.

Regarding what constitutes a shared or common ―criminal intent or purpose‖

in situations where the accomplice may be unaware of the particular presence of

the principal, we have identified three cases of note. In State v. Ochoa, 72 P.2d

609, two defendants were part of a crowd of over 100 people that attacked the

county sheriff in an attempt to free a prisoner in the sheriff‘s custody. Shots were

exchanged between the mob and the police. Id. at 617. None of the shots were

fired by the defendants, but one of the shots killed the sheriff. The defendants

69

assaulted several of the sheriff‘s deputies, preventing them from coming to the

sheriff‘s aid. The Ochoa court held that ―[t]he fact that [the defendants] were thus

engaged in a vicious assault upon [the deputy], . . . left it within the jury‘s province

to infer, if it saw fit, not alone that these defendants shared in the intent of the

slayer, but also that they aided and abetted him in his unlawful undertaking.‖ Id.

(citing Woolweaver v. State, 34 N.E. 352, 353 (Ohio 1893)). Pertinent here, the

court so held even though it appears there was no evidence that the defendants (or

anyone else) knew with particularity of the presence and participation of the

sheriff‘s actual killer or took particular notice of everyone who populated the mob.

In State v. Kukis, 237 P. 476 (Utah 1925), an armed mob of 65 to 100

striking laborers, including the defendant, fired on a railroad car containing

management representatives. One of the bullets, fired by an unknown member of

the mob, struck a railcar worker and killed him. The court held that there was:

[A] just inference that every one of the crowd . . . was

there for a common and unlawful purpose, and

participated or aided and abetted in the assault. . . . There

thus is evidence to justify a finding of combination or

confederacy or concert of action of this armed crowd or

mob . . . that all who were members or part of such

crowd or mob . . . aided or abetted therein; and though

the evidence does not show whether it was or was not the

bullet shot by the defendant or by another member of the

70

mob which killed the deceased . . . the jury was justified

in finding him guilty. . . .

Id. at 479.

In People v. Cooks, 625 N.E.2d 365 (Ill. Ct. App. 1993), the murder victim

and defendant belonged to enemy gangs. Following an argument between

members of the two gangs, the defendant followed the victim as he entered a

tavern vestibule. The defendant ―ran up to the front of the tavern and fired [his]

gun through the [tavern] window, striking [the victim] in the leg.‖ Id. at 367.

―The arm of an unidentified individual then stuck a shotgun through the tavern

door, and fired it once, striking [the victim] in the stomach and killing him.‖ Id. at

367-68. The person to whom ―the arm‖ belonged was never identified. Id. at 368.

Cooks argued on appeal that ―the State failed to prove that he solicited,

aided, abetted or agreed or attempted to aid the unknown, unidentified person who

shot and killed [the victim].‖ Id. The Illinois court stated that the ―intent to

promote or facilitate the commission of a crime can be shown by evidence that the

defendant shared the criminal intent of the principal or that there was a common

design or community of unlawful purpose.‖ Id. at 368. The court concluded that

―the evidence . . . sufficiently demonstrate[d] a common design and a community

of unlawful purpose between the defendant and the second unidentified

71

individual,‖ id. at 370, and that it was logical to conclude that the defendant aided

the second unidentified shooter ―by virtue of his shooting the victim first, thereby

making [the victim] more vulnerable and prone to a second attack.‖ Id. at 369.

The court held that the ―[d]efendant‘s first shot facilitated the second [shot by the

―arm‖] and, therefore, the offense.‖ Id.

The reasoning in Ochoa, Kukis and Cooks is relevant here, because there

was evidence from which the jury could infer that Harris and Tann were aware that

other gang members, too, were shooting at Harrison, prompted by the altercation

between Harrison and Tyndle. Under the rationale of these cases, even if Tann and

Harris were not aware of the presence and participation of each one of the 22nd

Street crew-member shooters and did not know who fired the fatal shot, they could

be held liable as aiders and abettors of whichever other crew-member shooter —

including Foreman — was the principal (whose action was facilitated and

encouraged by Harris‘s and Tann‘s own actions).

Haynes v. Commonwealth, 515 S.W.2d 240 (Ky. 1974), a case discussed by

our dissenting colleague, is also helpful to our analysis. The question addressed in

that case was, ―under what circumstances does a person engaged in an affray

72

become an aider and abettor of another who intervenes uninvited, even assuming

that they share the criminal intent or purpose‘‖ (quoting Whitt). The facts were

that ―appellants John Robert and Tounsel Haynes[] were engaged in . . . a ‗shoot-

out‘ with William Caudill‖ when their father, ―appellant Joe Haynes[,] armed

himself with a rifle, went to the scene of the affray, and shot and killed Caudill.‖

515 S.W.2d at 240-241. All three Hayneses were indicted for murder and found

guilty of voluntary manslaughter. Id. at 241. The Court of Appeals of Kentucky

held that the evidence did not justify the sons‘ conviction of the father‘s act,

reasoning that there was ―no evidence from which it may be reasonably inferred . .

. that either of the sons sent for the father‖ and ―no evidence even that John Robert

knew he had arrived until after the killing.‖ Id. Further, the court reasoned, ―the

fact that Tounsel may have provoked the encounter‖ ―would not itself amount to

assistance or encouragement.‖ Id. Here, by contrast, the evidence was not merely

that Harris and Tann provoked Foreman‘s encounter with Taylor and Mackey.

Rather, there was evidence from which it could be inferred (1) that Harris‘s and

Tann‘s action in shooting at Harrison was an invitation to (i.e., a ―sending for‖)

22nd Street crew members (who, as discussed above, were participants in an

overall conspiracy ―to assault and kill anyone whose interests were contrary to

those of [appellants] and their associates‖) to come and support Harris‘s and

73

Tann‘s efforts; and (2) that Harris and Tann knew before the fatal shot was fired

that other 22nd Street crew members were in fact joining the affray (even though

there was no evidence that they knew that Foreman in particular was one of the

participants).

In other words, contrary to our dissenting colleague‘s argument, the

Kentucky court‘s decision in Haynes does not undercut our argument that Tann

and Harris could be found guilty of aiding and abetting Foreman‘s shooting of

James Taylor. Given that all three individuals shared the same mens rea to shoot

Harrison and the evidence demonstrated that Tann and Harris reasonably knew that

their actions would incite other 22nd Street crew members to come to their aid, we

think the situation here is more analogous to those in Ochoa and Kukis, where

courts concluded that an individual participating in a criminal mob could be found

guilty of aiding and abetting the commission of a murder by a member of the mob,

even if the aider did not know who exactly from the mob did the actual killing. In

fact, even our dissenting colleague agrees that, in instances of a criminal mob, a

person who ―knowingly attaches himself to a large group‖ may be considered to

have aided and abetted other members of the group to commit illegal acts even

74

though ―he may not know who is in the group or who the principal offenders in it

are.‖

We believe that the case law supports the following propositions rooted in

the common law and incorporated in our aiding-and-abetting statute: (1) the aider

and abettor must have the mens rea of the principal actor, see Wilson-Bey, 903

A.2d at 822, and must have the ―purposive attitude towards‖ the criminal venture

described in Peoni, 100 F.2d at 402; (2) a defendant is not responsible for the

actions of a third-party who, wholly unassociated with and independent of the

defendant, enters into a crime when there is no community of purpose between the

defendant and the third-party, Landrum, 96 S.W. at 588;25 however, (3) the

defendant need not know of the presence of every participant in a group crime

(including the principal) in order to be found guilty under an aiding-and-abetting

theory of liability, Ochoa, 72 P.2d at 617; and (4) where the criteria in (1) above

are met and the evidence at trial proves that the defendants by their action,

25

See also Hopewell v. State, 712 A.2d 88, 92 (Md. Ct. Spec. App. 1998)

(relying on authority that for a defendant to be liable as an accomplice, there must

be ―concert of action or community of purpose existing at the time of the

commission of an offense‖ (emphasis added)) (overruled on other grounds,

Fleming v. State, 818 A.2d 1117, 1123 n. 4 (Md. 2003)).

75

foreseeably (and thus, the factfinder may conclude, intentionally)26 incited action

by a third party who shared in their community of purpose, aiding-and-abetting

liability may be found. Cooks, 625 N.E.2d at 369-70; Kukis, 237 P. at 479. These

principles satisfy the criminal intent element required by aiding-and-abetting

liability and do not run afoul of Wilson-Bey or Peoni.27

Applying these principles to the facts of this case, we think it is clear that

appellant Tann, appellant Harris, and Robert Foreman all possessed the same

criminal state of mind: the premeditated intent to kill Omar Harrison. This intent

shifted to the killing of James Taylor, and the assault of Bernard Mackey, under

26

―A man is held to intend the foreseeable consequences of his conduct.‖

In re Dory, 552 A.2d 518, 522 (D.C. 1989) (Schwelb, J., concurring) (quoting

Radio Officers Union v. N.L.R.B., 347 U.S. 17, 45 (1954)).

27

Because our holding rests in part on foreseeability (and the inference of

intentionality that may be drawn from it), it is not accurate to say, as our dissenting

colleague complains, that our holding is that one can be an aider/abettor by being

an ―inadvertent accomplice.‖ One cannot ―inadvertently‖ aid or abet a principal

when he or she shares the mens rea of the principal and it is reasonably certain that

his or her actions will incite the principal to action because of their shared

membership in a group (e.g., a gang or mob) that has a communal purpose. Our

dissenting colleague also states that our ―community of purpose‖ formulation ―may

exist in the absence of any agreement, understanding, or cooperation between [the

principal and ‗putative‘ accomplice] with respect to the crime in question.‖ We

emphasize that a ―community of purpose‖ necessarily implies that there exists

some tacit, if not always explicit, agreement or understanding between all involved

(such as a code of conduct), even if there is no agreement to commit a specific

crime. See infra n.28.

76

the theory of transferred intent as recognized in our case law and not in dispute

here. (Wesley) Williams v. United States, 881 A.2d 557, 567 (D.C. 2005);

O’Connor v. United States, 399 A.2d 21, 25 (D.C. 1979).

The evidence also established a ―community of purpose‖ between Tann,

Harris, and Robert Foreman, reflecting a uniform and common design among the

three shooters. When word of the confrontation between Alphonce Little‘s

girlfriend and Omar Harrison spread through 22nd Street, Tann, Harris, and Little

rushed with other gang members toward Harrison in anticipation of a

confrontation. The evidence supported a finding that appellants were well aware

that other gang members were in the area and part of the crowd that was involved

in the general attack. Both appellants knew from past experience while in the 22nd

Street Crew that once they began committing acts of violence, other coconspirators

would join them. In fact, the conspiracy among members of the 22nd Street Crew

included the agreement to commit violence against outsiders, like Harrison, who

failed to afford the proper respect to the gang and its territory, and whose

―interests‖ were contrary to that of the gang. Not surprisingly, this is exactly what

happened when Foreman (who we assume was the principal in this incident)

77

opened fire in response to seeing his fellow coconspirators engaged in an attack on

Harrison as their response to Harrison‘s hostility toward Tyndle. 28

We cannot agree with Judge Glickman that, by looking to the foreseeability

to the defendant that his criminal conduct will incite participation by a third party

acting pursuant to a community of purpose, we have expanded the doctrine of

aiding and abetting liability ―without affording the parties the opportunity to

address‖ the ―expan[sion],‖ and that we have thereby been ―unfair to the parties.‖

Both the factor that we refer to as ―community of purpose‖ and foreseeability are

factors whose relevance the parties debated in the trial court from the outset. For

example, Harris‘s counsel argued that the aider and abettor must have ―a

connection with the principal‖ and that there must be ―an association between the

28

We need not find an actual agreement here to commit the specific crime

between the various gang members in the way that we would if the finding of guilt

were predicated on Pinkerton conspiracy liability. ―Aiding, abetting, and

counseling are not terms which presuppose the existence of an agreement. Those

terms have a broader application, making the defendant a principal when he

consciously shares in a criminal act, regardless of the existence of a conspiracy.‖

Pereira v. United States, 347 U.S. 1, 11 (1954) (citing Nye & Nissen, 336 U.S at

620). Nevertheless, the fact that there was a broader conspiracy to kill ―outsiders‖

among the 22nd Street Crew members informs the community of purpose that, as a

factual matter, was shared between Tann, Harris, and Foreman at the time of the

shooting. The existence of the conspiracy was what made it foreseeable to Harris

and Tann that other 22nd Street crew members in the area — including,

unbeknownst to them, Foreman — would respond by joining in the effort to shoot

Omar Harrison.

78

people helping each other.‖ Counsel also discussed with the trial court whether the

principal and the aider/abettor could have ―totally different motives for killing Mr.

Harrison.‖ And, in Harris‘s brief on appeal, he decries the absence of a ―relational

limiting factor‖ for aiding and abetting liability.

The parties also argued in the trial court about the relevance of the

foreseeability of the principal‘s actions. For example, in the course of a colloquy

with the trial court about accomplice liability instructions, Harris‘s counsel, joined

by Tann‘s counsel, argued that for such liability, ―it would have to be reasonable

and foreseeable that, ―if you‘re doing something,‖ ―an unknown person . . . would

respond by shooting.‖ Further, while Harris‘s counsel argued that the evidence

did not support an aiding and abetting instruction because ―[t]here‘s no way Mr.

Harris could have known that somebody across the street who[m] he didn‘t know

was there . . . would have suddenly joined in on this shooting,‖ he explicitly

understood that the government ―keeps trying to say well, yeah, because he‘s on

22nd Street.‖ In other words, counsel understood that one argument being

advanced by the government was that because the shooting took place on 22nd-

Street-crew turf — where the ethos was for crew members to work together ―to

assault and kill anyone whose interests were contrary to those of [crew members]

79

and their associates‖ — Harris and Tann had every reason to expect that when they

started shooting, other crew members who happened to be in the area would start

shooting as well. Defense counsel argued that Foreman made ―a completely

independent decision to start shooting‖ and that there was no way Harris and Tann

―could anticipate that someone he didn‘t know was even present would do

anything, much less start shooting. They made this argument while anticipating

that ―the government may argue that [the defendants] should have know[n] that

[their] act of shooting at a person who had been assaulting a pregnant woman

[Tyndle] would have incited others to shoot as well. And, in fact, the government

did argue, in opposing Harris‘s motion for judgment of acquittal (1) that because

Harris, Tann, and Foreman were ―all members of the charged conspiracy,‖ there

was ―no legitimate argument to make that [they] were acting independently of one

another‖;29 (2) that because there was an ―over-arching conspiracy,‖30 crew

29

Contrary to Judge Glickman‘s suggestion, the evidence did not support a

finding that Foreman‘s decision to join in the shooting was an ―independent

criminal act of another that the defendant[s] did not intentionally encourage or

assist in some way.‖ According to the evidence, Foreman, Harris, Tann, and the

other 22nd Street crew members who joined in the shooting did not act

―independently‖ of each other.

30

As Judge Glickman notes, the government did not rely on the doctrine of

Pinkerton liability in prosecuting Harris and Tann for the Taylor and Mackey

incident, but, as the material quoted in the text shows, it did rely on the existence

of the charged conspiracy to establish why it was foreseeable to Harris and Tann

(continued…)

80

members ―immediately knew what to do31 and reacted in a way to protect the

girlfriend of their co-conspirator‖; (3) that Foreman ―did exactly what [defendants]

had every reason to believe [he] would do‖; and (4) that, in light of Foreman‘s

membership in a conspiracy that ―will protect . . . their members at all costs,‖ ―[i]t

was certainly foreseeable that when Harris [and Tann] began shooting . . ., other

co-conspirators, [they] may not have known exactly who, would assist in [their]

efforts.‖ Thus, is fair to say that one express theory of the prosecution was that

(…continued)

that Foreman and other 22nd Street crew members would respond as they did, by

joining in the shooting. This did not amount (and our analysis does not amount) to

conflating Pinkerton liability and aiding-and-abetting liability (which requires a

mens rea that Pinkerton does not). See Wilson-Bey, 903 A.2d at 840-41. Rather

than conflation of theories of liability, our analysis reflects a recognition that

―[t]ypically, the same evidence will support both a conspiracy and an aiding and

abetting conviction.‖ United States v. Vasquez, 677 F.3d 685, 695 (5th Cir. 2012)

(internal quotation marks omitted).

31

In closing argument, the prosecutor continued that theme:

Now, what does Robert Foreman tell you? . . . I hear

shots. So what do I do? These are my boys. I turn

around, and I start shooting.‖ . . . I hear the shots. I

don’t even have to think. I turn around; I start shooting.

81

Harris and Tann foreseeably (and thus intentionally, the jury could find)

encouraged an attack on Omar Harrison by a group that included Foreman.32

Moreover, in a memorandum regarding proposed jury instructions, Harris‘s

counsel told the court that the defense had looked for but had been ―unable to find

a fact pattern matching the one in this case,‖ but found cases ―across jurisdictions‖

(purportedly) requiring, for joint liability, ―that the defendant had knowledge of the

other principal involved in the event.‖ Having undertaken such a search,

appellants cannot be surprised that this court, too, has scoured common-law cases

on accomplice liability and has relied on factors that these cases recognized as

relevant. The case law discussed herein was equally available to the parties as part

of their research.

All the foregoing examples show that the parties had ample opportunity to

debate, and did debate, the relevance of the factors on which we rely for our

holding.

32

Again, we rely on the principle that Harris and Tann could be found to

have intended the reasonably foreseeable consequences of their acts. See supra

note 26.

82

Judge Glickman‘s analysis suggests that after Peoni and Wilson-Bey, Harris

and Tann may not be found liable for the foreseeable shooting their actions

inspired. But what Peoni established is that ―the probability that the forbidden

result would follow upon the accessory‘s conduct‖ does not suffice; rather, to incur

aiding and abetting liability, the defendant must ―in some sort associate himself

with the venture, . . . participate in it as in something that he wishes to bring about,

. . . seek by his action to make it succeed[,]‖ and have a ―purposive attitude

towards it.‖ 100 F.2d at 402.33 The evidence at trial amply supported a finding

that Harris and Tann each associated himself with the vendetta against Harrison,

participated in it as in something that he wished to bring about, sought by his

action to make it succeed, and displayed a purposive attitude towards it, as Peoni

requires for aiding and abetting liability. What Wilson-Bey and its progeny require

is that the aider and abettor share the mens rea of the principal; it is not enough for

33

Judge Glickman also observes that, of the five cases that we cite to, four

were decided before Peoni, and one was decided under a statute that has no

counterpart in this jurisdiction. With regard to the four pre-Peoni cases, it does not

matter that the Kentucky, New Mexico, and Utah cases were decided beforehand

because those cases do not conflict with Peoni‘s principal holding. In none of the

four cited cases is there any dispute that the aider/abettor shared the same mens rea

as that of the unknown or inadvertent principle. With regard to the Illinois case

Cooks, the ―common design or community of unlawful purpose‖ doctrine of

proving an intention ―to promote or facilitate a crime‖ is rooted in the common

law, and not found in the statute. See Cooks, 625 N.E.2d at 368-69; see also

People v. Foster, 556 N.E.2d 1214, 1219 (Ill. Ct. App. 1990).

83

aiding and abetting liability that a defendant could reasonably have foreseen what

the principal would do. Here, there is no dispute that the evidence sufficed to show

that Harris and Tann shared Foreman‘s intent to kill Harrison. The question is

whether, sharing that intent, they may be held liable under an aiding and abetting

theory for initiating a shooting incident that they had reason to foresee would cause

(and did cause) other gang members to join in the shooting. Neither Peoni nor

Wilson-Bey requires us to answer that question in the negative.34

We would reach a different conclusion had there been no evidence

establishing community of purpose between Tann, Harris, and Robert Foreman,

and if the evidence had not supported an inference that Harris and Tann knew that

fellow 22nd Street crew members were joining in the assault and that it was

34

Judge Glickman notes that this court ―declared in Wilson-Bey that it is a

‗requirement [for aiding and abetting liability] that the accomplice be shown to

have intended that the principal succeed in committing the charged offense‘‖ and

further stated in Little v. United States, 989 A.2d 1096, 1102 (D.C. 2010), that the

―aider or abettor must have knowingly aided the other person with the intent that

the other person commit the charged crime.‖ It is consistent with Wilson-Bey and

Little for us to hold more specifically here that the aider/abettor must ―have

intended that the principal (whoever, among his associates who could reasonably

be expected to participate pursuant to a common purpose if present on the scene,

that principal might turn out to be) succeed in committing the charged offense‖

and ―must have knowingly aided the other person (whoever, among his associates

who could reasonably be expected to participate pursuant to a common purpose if

present on the scene, that person might turn out to be), with the intent that the

other person commit the charged crime.‖

84

foreseeable to Harris and Tann that any fellow crew members who were in the area

would do so. If the facts were such as those in Landrum, where there was no

evidence of a community of purpose between the defendant aider and abettor and

the principal, then the evidence would be insufficient. But the evidence was that

Foreman, a gang member who lived around 22nd Street and was acquainted with

Harris and shared guns with him, was about to step in to respond to the Harrison-

Tyndle altercation until he perceived that Harris and others ―got it,‖ and then

joined in the shooting when ―getting it‖ — the common purpose and design —

escalated to that level. And, as in Cooks, Tann‘s and Harris‘s actions of initiating

the shooting, and rendering the target more vulnerable, facilitated and encouraged

Foreman‘s joining in the gunfire to help his 22nd Street Crew cohorts. 625 N.E.2d

at 369-70. The fact that Tann and Harris were unaware of Foreman‘s presence

until after Foreman (presumably) fired the fatal shot does not make the

government‘s evidence legally insufficient.

The dissent derides our reasoning as a ―novel theory of [our] own devising.‖

We think the cases discussed above, decided decades (and, in one instance, a

century) ago, show that our theory is not at all novel. Rather than of our own

devising, it is authorized as an incremental development of the common law, from

85

reasoning that is implicit in the decades-old cases we have cited.35 The fact that

there seems to be no reported case that has articulated the theory precisely as we

have is hardly surprising because, as the trial court and the parties all agreed, the

facts of this case are ―very odd‖ and ―rare.‖ And, however imprecise the rule we

announce may be, it is anchored to, and limited in application by, the detailed and

unusual facts of this case.

Accordingly, for the foregoing reasons, we deny appellants‘ claims related

to the sufficiency of the evidence. We also deny appellants‘ claims related to the

curtailment of their closing arguments when the trial judge prevented them from

arguing that aiding-and-abetting liability required the government to prove that the

accomplice intended to help a known and particular principal commit the charged

offense. In this respect, the trial judge acted correctly because he prevented a

35

As the highest court of this jurisdiction, we of course have the ―power[]

[and the responsibility] to develop the common law for the District of Columbia,‖

Williams v. Walker-Thomas Furniture Co., 350 F.2d 445, 449 (D.C. Cir. 1965), ―as

new circumstances and fact patterns present themselves.‖ Rogers v. Tennessee,

532 U.S. 451, 461 (2001). As far as we can tell, no other reported opinion has

considered whether there can aiding and abetting liability on facts such as those

presented here: a principal whose particular presence was not known to the

defendants, but who, because of his membership in an over-arching conspiracy

with the defendants, was foreseeably incited to join in the defendants‘ criminal

conduct. We must answer the question on our own, and we do so in a way that we

believe is consistent with the pronouncements in aiding-and-abetting case law, in

all their variations.

86

misstatement of the law. See United States v. Gaines, 690 F.2d 849, 858 (11th Cir.

1982) (no error where the trial ―court properly prevented defense counsel from

arguing to the jury a false legal proposition‖); see also Hager v. United States, 791

A.2d 911, 913 (D.C. 2002) (trial court acts properly where it ―exclude[s] . . . those

statements that misrepresent the evidence or the law‖).

However, we conclude that the trial judge committed instructional error

when he told the jury that a defendant can be found liable as an aider and abettor

―if [he] knowingly aid[s] and abet[s] the crime without knowing who else is doing

it,‖ without requiring that the jury also find a community of purpose between the

principal and the accomplice. Nevertheless, using any test for error, we conclude

that appellants were not harmed. The jury convicted both Tann and Harris of

Count 1 of the indictment, which alleged that appellants were involved in a

criminal conspiracy with other members of the 22nd Street Crew to kill persons,

such as Omar Harrison, whose ―interests‖ were contrary to that of the

coconspirators. Count 1 included Foreman as a named coconspirator. Given the

jury‘s finding on the conspiracy count, and given the other evidence presented

regarding the behavior of Robert Foreman, Harris, Tann, and other gang members

at the time of the shooting of James Taylor and Bernard Mackey, we find that there

87

is no reasonable possibility, even had the jury found that Foreman was the

principal in the James Taylor-Bernard Mackey incident, that it would have failed to

find that Tann, Harris, and Foreman were part of a group that shared the common

purpose and design to murder Omar Harrison and that Harris and Tann intended to

aid any of their fellow crew members who were present and participating in doing

so.36 See Fortson v. United States, 979 A.2d 643, 661 (D.C. 2009); Tyree, 942

A.2d at 638-40; cf. Wilson-Bey, 903 A.2d at 844-45. Therefore, appellants are

entitled to no relief.

D. Beaver’s Conviction: Obstruction of Justice

Count 25 of the superseding indictment in this case read as follows:

Between on or about April 30, 2004, and on or about July

11, 2006, within the District of Columbia, Lannell N.

Cooper . . . Michael D. Tann . . . Dajuan D. Beaver . . .

and Brian K. Gilliam . . . corruptly persuaded, and

endeavored to cause or induce, Laquanda Johnson, with

the intent to persuade her to influence, delay, and prevent

the truthful testimony of her sister, Kyara Johnson, a

witness in an official proceeding, to wit, United States v.

Lannell Cooper . . . then pending in the Superior Court

for the District of Columbia.

36

We respectfully disagree with our dissenting colleague‘s suggestion that

appellants Harris and Tann ―did not intend to aid or abet anyone (other than

themselves)[.]‖

88

On appeal, appellant Beaver makes the argument that although there was testimony

at trial that he was involved in the search for both Johnson sisters in the run-up to

appellant Cooper‘s 2006 trial in an effort unlawfully to influence their testimony

separately, there was insufficient evidence admitted to prove that he committed the

particular actions alleged by Count 25, i.e., that he attempted to use Laquanda as

an instrument to influence Kyara‘s testimony against Cooper. In substance,

Beaver alleges that what was charged was at variance with the evidence elicited at

trial.

Alphonce Little testified that, shortly after Cooper was confined on April 30,

2004, for the Terrence Jones murder, Beaver told Little that Kyara Johnson was

cooperating with the government. Moreover, Little stated that Beaver also told

him 17th Street gang members Brian Gilliam and Tyrell Hargraves, close friends

of Cooper and allies of the 22nd Street Crew, would be ―handling the situation‖

with regard to Kyara. Little also testified that he saw Beaver meet with Gilliam

and Hargraves multiple times on 22nd Street after Cooper was arrested. Around

this time, Beaver also expressed to Little his opinion that the witnesses who were

snitching on Cooper ―[s]hould be dead.‖ While in jail, Cooper told Little over the

phone that a friend of his was coming to 22nd Street and Little should identify

89

Kyara for him. On the same day as Alphonce Little‘s conversation with Cooper,

Gilliam came to the neighborhood and met Little in a parking lot. Gilliam was

seated in a car with a gun in his lap and asked Little ―Where that bitch at[?]‖ and to

―point [Kyara Johnson] out.‖

Furthermore, gang ally Dewey Chappell testified that Beaver told him that

both of the Johnson sisters were ―supposed to be testifying for the government.‖

Chappell then traveled to 22nd Street ten to twenty times in an attempt to find the

sisters with the intent to offer them marijuana and money ―to not testify‖ or to

―change their statement.‖ Because Chappell did not know what the sisters looked

like, Beaver tried to help him find them.

There was also testimony at trial about the nature of the relationship between

the sisters. Laquanda Johnson, as the older sister, was known to be ―a sort of

middleman‖ or ―gatekeeper‖ between Kyara and persons seeking access to her, at

least for members of the 22nd Street Crew who were looking for Kyara in the

aftermath of the Terrence Jones murder. An investigator assigned to Cooper‘s

defense team for his 2006 trial for the murder of Terrence Jones testified during the

instant case that his ―best chance to speak to [Kyara] was through [Laquanda].‖

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Although Beaver styles his claim as one attacking the sufficiency of the

evidence, it is better cast as an argument alleging a fatal variance between the

proof and the pleadings. See (Royce) Robinson v. United States, 697 A.2d 787,

788-89 (D.C. 1997). Beaver does not dispute that the government presented

sufficient evidence that Beaver was looking for both sisters in order to prevent the

truthful testimony of at least one of them. Beaver‘s complaint is that the criminal

offense did not happen in the way alleged in the indictment – that he did not

attempt to persuade Laquanda to influence Kyara‘s testimony.

Two kinds of problems arise when there is a deviation

from an indictment. An amendment of the indictment

occurs when the charging terms of the indictment are

altered . . . . A variance occurs when the charging terms

of the indictment are left unaltered, but the evidence

offered at trial proves facts materially different from

those alleged in the indictment.

(Terrence) Ingram v. United States, 592 A.2d 992, 1005 (D.C. 1991) (emphasis

omitted). A ―constructive amendment of the indictment can occur if, and only if,

the prosecution relies at the trial on a complex of facts distinctly different from that

which the grand jury set forth in the indictment.‖ Baker v. United States, 867 A.2d

988, 999 (D.C. 2005) (emphasis omitted) (quoting Carter v. United States, 826

A.2d 300, 306 (D.C. 2003)). In a variance, the proof at trial does not show such a

distinctly different ―complex of facts,‖ nor does the proof differ from the ―essential

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elements‖ of the offense charged in the indictment. Marshall v. United States, 15

A.3d 699, 710 (D.C. 2011). ―In contrast with an amendment, a variance will not

warrant dismissal except upon a showing of prejudice.‖ (Terrence) Ingram, 592

A.2d at 1006 (internal quotation marks omitted). ―A variance is prejudicial if it

either deprives the defendant of an adequate opportunity to prepare a defense . . .

or exposes him to the risk of another prosecution.‖ Zacarias v. United States, 884

A.2d 83, 87 (D.C. 2005).

Here, because the purported discrepancy between the proof elicited at trial

and the language of Count 25 did not show a ―complex of facts distinctly different

from that which the grand jury set forth in the indictment,‖ the issue is one of a

potential prejudicial variance. A constructive amendment is not found where the

proof at trial reflects the same facts as those alleged in the indictment regarding

time, place, individuals, and core criminal behavior. See Carter, 826 A.2d at 306-

07.

Both the evidence at trial and the indictment reflected events that occurred at

the same time (between the date of Cooper‘s arrest for the Terrence Jones murder

and Cooper‘s 2006 conviction), in the same general location, by the same

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individuals (22nd Street Crew members, including Beaver, and other gang allies),

and targeting the same ultimate victim, Kyara Johnson. See id. at 306.

Additionally, both the indictment and the evidence at trial showed the same overall

substantive criminal behavior: an attempt by Beaver and others to commit the

offense alleged by the grand jury – to intimidate Kyara Johnson for purposes of

affecting her testimony and the outcome of Cooper‘s 2006 trial. See Baker, 867

A.2d at 999. The possible disparity between the indictment and the evidence was

in manner of the offense only.

Moreover, as Beaver did not raise the issue of either constructive

amendment or prejudicial variance at trial, we must review his claim under the

plain error standard.37 ―Under the plain error doctrine, appellant must establish (1)

that the trial court committed error; (2) that the error was plain, i.e., clear or

obvious; (3) that the error affected substantial rights; and (4) that a failure to

correct the error would seriously affect the fairness, integrity, or public reputation

37

Even if we were to find a constructive amendment here, our review would

still be for plain error. O’Brien v. United States, 962 A.2d 282, 321 (D.C. 2008)

(―Since appellant did not raise her claim of constructive amendment in the trial

court, our review . . . is for plain error.‖); cf. Peay v. United States, 924 A.2d 1023,

1027 (D.C. 2007) (―If there has been a constructive amendment to an indictment,

and the issue has been properly preserved for appeal, per se reversal is required.‖).

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of judicial proceedings.‖ Marshall, 15 A.3d at 710 (internal quotation marks and

emphasis omitted) (citing United States v. Olano, 507 U.S. 725, 732-36 (1993)).

We find no plain error. First, we are not convinced that the trial court

committed ―clear‖ or ―obvious‖ error by failing to identify, sua sponte, that the

variance between the government‘s proof and the indictment was material. The

evidence was that Beaver repeatedly attempted, on behalf of Cooper, to identify

Kyara and Laquanda Johnson for gang members and allies who were looking to

obstruct justice. Considering this evidence in the context of Laquanda‘s reputation

in the community as the ―gatekeeper‖ for persons seeking to access Kyara, the

court (and the jury) could have reasonably inferred: that Kyara was Beaver‘s

primary focus, that his interest in finding Laquanda was fueled by his concern that

Kyara would give testimony unfavorable to Cooper, and that Beaver wanted to use

Laquanda to influence Kyara‘s testimony. See Marshall, 15 A.3d at 711 (variance

not plain error where the factual theory pursued by the government at trial ―was

not entirely divergent from that proffered by the government before trial‖).

Moreover, even assuming that any error was clear or obvious, Beaver has

not identified how the variance resulted in surprise, lack of notice, risk of double

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jeopardy, or some other way in which his substantial rights were impacted. Carter,

826 A.2d at 307 (―A variance may be prejudicial if . . . the accused . . . was so

surprised by the proof that he was unable to prepare his defense adequately.‖)

(internal quotation marks omitted); Pace v. United States, 705 A.2d 673, 677 (D.C.

1998) (―A variance may prejudice a defendant such as by (1) depriving him of

adequate pretrial notice of the details of the charge against which he must defend,

and/or (2) depriving him of protection against reprosecution.‖). Nor does he

contend that his defense, which was that the testimony of Alphonce Little and

Dewey Chappell was untrue, would have been different if there had been no

variance. Zacarias, 884 A.2d at 89. Finally, we are confident that there was no

error that seriously affected the fairness, integrity, or public reputation of judicial

proceedings, especially given that Beaver now concedes that the evidence was

sufficient that he did, in fact, obstruct justice with regard to both of the Johnson

sisters. See Marshall, 15 A.3d at 711.

E. Beaver’s Conviction: Carrying a Pistol Without a License

(“CPWL”)

Count 47 of the superseding indictment charged that on or about July 11,

2006, the day of Laquanda Johnson‘s murder, Beaver carried a pistol without a

license. Alphonce Little testified that shortly before he killed Laquanda, he saw

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Beaver with ―a nine‖ (the parties agree that this referred to a 9mm semi-automatic

pistol) in his possession. Little further testified that he and Beaver initially

planned that Beaver would shoot Laquanda and Kyara Johnson, and that Beaver

declared that ―he was going to do it[;] he was going to kill them‖ because ―they

[the Johnson sisters] got to go.‖

However, Beaver eventually persuaded Alphonce Little to carry out the

shootings instead. Little obtained a different weapon, a ―.45,‖38 which he used to

kill Laquanda Johnson and shoot Keisha Frost. Following the shooting, Little,

Beaver, and Rushing, traveled to Maryland where Beaver took the murder weapon,

and the hoodie that Little had been wearing, and hid these items near the porch of

his mother‘s house.39 The 9mm pistol that Beaver was carrying earlier in the

evening was never recovered by investigators.

38

Although not clearly articulated in testimony, the only reasonable

inference was that the term ―.45‖ referred to a .45 handgun.

39

The government does not argue that the CPWL conviction can be

supported based on Beaver‘s possession of the .45 handgun because there was no

evidence that Beaver possessed the weapon in the District of Columbia. See

Joiner-Die v. United States, 899 A.2d 762, 765-66 (D.C. 2006) (Superior Court

jurisdiction limited to acts which occur within the boundaries of the District of

Columbia).

96

Beaver argues that his CPWL conviction was based on insufficient evidence

because there was no evidence, direct or circumstantial, that his 9mm pistol was

operable as required by the law at the time of trial.40 In re R.S., 6 A.3d 854, 859

(D.C. 2010). Beaver specifically contends that there was no demonstration by the

government of his ―active reliance‖ on the weapon which might constitute

circumstantial evidence of operability.

In cases such as this one, where there is no evidence that the defendant fired

the firearm, its operability may be established by circumstantial evidence,

including evidence that ―affirmatively demonstrated [the defendant‘s] belief that it

was operable.‖ Id. at 860. This court held in In re R.S. that evidence that the

defendant displayed a firearm for the purpose of threatening a victim – conduct

that was accompanied by verbal threats to the effect that ―if you step out here, you

see what I got‖ – was sufficient to demonstrate the defendant‘s reliance on the

operability of the firearm. Id. Similarly, this court has held in other cases that

evidence of operability was sufficient where: one defendant was ―waving his gun‖

while a second defendant ―stuck a gun into [the victim‘s] back‖; a defendant was

seen ―displaying a gun to back up his demands‖; and a defendant was identified

40

Operability is no longer an element of CPWL. See Snell v. United States,

68 A.3d 689, 692 n.4 (D.C. 2013).

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―wield[ing a] sawed-off shotgun in a menacing manner, knocking on the car

window and waving it at [the victims].‖ Peterson v. United States, 657 A.2d 756,

763 (D.C. 1995); Bartley v. United States, 530 A.2d 692, 693-94 (D.C. 1987);

Morrison v. United States, 417 A.2d 409, 413 (D.C. 1980).

In those cases, the inference of the assailants‘ reliance on their weapons‘

operability rested on reasoning that, through their display of the weapons, the

assailants ―intended that their victims believe[] that the weapons were capable of

being discharged.‖ Bartley, 530 A.2d at 698. There is no such evidence in this

case. During the period of time when Beaver was supposed to commit the murders

personally, he never indicated that he would use his 9mm. And once Beaver

persuaded Alphonce Little to carry out the shootings, Beaver did not offer Little

the use of his 9mm; instead, Beaver stood by while Little and Dwayne Wright

retrieved a different gun from inside Wright‘s house.

This set of circumstances does not support an inference of operability. Price

v. United States, 813 A.2d 169, 173 (D.C. 2002) (evidence was insufficient to

support CPWL conviction where defendant held a weapon at his side while his

companions shot and killed their victim because ―(1) the witnesses testified that

98

Price never pointed his weapon at anyone; and (2) he was never left on his own to

control the victim without the assistance of his cohorts, who clearly had operable

weapons.‖). In this case, like in Price, ―[t]he government simply failed to present

evidence establishing either that [Beaver] fired his weapon, pointed it, or otherwise

affirmatively displayed a belief that his weapon was operable[, and] the evidence

here tends to dispel the notion that [Beaver‘s] weapon could fire.‖ Id. Therefore,

we vacate Beaver‘s CPWL judgment of conviction.

F. Cooper’s Conviction: Laquanda Johnson Murder Under Pinkerton

Cooper makes a multi-pronged attack on his conviction for the premeditated

murder of Laquanda Johnson under a Pinkerton theory of liability. First, he argues

that the murder occurred while he was in prison and that he had no control or

influence over the actions of those directly involved. Therefore, the murder was

not reasonably foreseeable to him as required for Pinkerton liability. Second, he

argues that the application of this form of liability was unfair to him, and violated

his due process rights on the facts of this case, because ―it [was] based on a

charged ‗conspiracy‘ that [was] far too broad to support the application of a

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vicarious liability theory.‖41 Finally, his brief implicitly argues that he suffered

from selective prosecution with regard to this particular charge.42

In determining whether a coconspirator may be held liable for commission

of a substantive offense that the defendant did not directly commit, the government

must prove ―that an agreement existed, that a substantive crime was committed by

a co-conspirator in furtherance of that agreement, and that the substantive crime

was a reasonably foreseeable consequence of the agreement between the

conspirators.‖ Collins v. United States, 73 A.3d 974, 982 (D.C. 2013). The

government is not ―required to establish that the co-conspirator actually aided the

perpetrator in the commission of the substantive crime, but only that the crime was

committed in furtherance of the conspiracy.‖ Wilson-Bey, 903 A.2d at 840 (citing

Pinkerton, 328 U.S. at 646-47).

41

Cooper connects this claim to his arguments that the evidence of a single

conspiracy as charged was legally insufficient and the conspiracy charge itself was

overbroad, arguments which we rejected supra.

42

Considering his selective prosecution argument, we conclude that Cooper

has not met his ―heavy burden‖ to establish that ―(1) others similarly situated were

not prosecuted, and (2) the selective prosecution being complained of was

improperly motivated, i.e., it was based on an impermissible consideration such as

race or on a desire to prevent the exercise of constitutional rights.‖ Fedorov v.

United States, 600 A.2d 370, 377 (D.C. 1991) (emphasis omitted).

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Here, the conspiracy among Cooper and other members of the 22nd Street

Crew between 2003 and 2006 included the agreement to obstruct justice, and the

evidence showed that the coconspirators pursued that goal during the period of

time leading up to Cooper‘s 2006 trial. The record shows that Cooper personally

approached Laquanda Johnson and unsuccessfully bribed her with drugs and

money in an attempt to influence Kyara Johnson‘s testimony at that trial. The

evidence also revealed that Cooper contacted multiple gang members in order to

persuade the sisters (particularly Kyara) to change their statements and some of

these efforts contemplated the use of force.

Moreover, there was evidence to show that the conspiracy to obstruct justice

and prevent the Johnson sisters from doing further damage to the 22nd Street Crew

did not end after Cooper‘s 2006 conviction. Alphonce Little testified that he

murdered Laquanda, and intended to murder Kyara, because they might testify in

the future against ―[a]nybody around 22nd Street, it could [be] me.‖ Little stated

that because the sisters ―told on a murder[, t]hey could have told on me selling

drugs [or] whatever.‖ Because appellants in this case had yet to be charged with

conspiracy, and appellants other than Cooper had yet to be charged for the

Terrence Jones murder-Richard Queen assault, it was foreseeable that the Johnson

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sisters would continue, notwithstanding Cooper‘s conviction, to have the potential

to harm the gang.43

Furthermore, the conspiracy charged in this case also encompassed the goal

of killing ―snitches‖ whose actions demonstrated ―interests [that] were contrary to

those of the defendants and their associates.‖ In accordance with the overarching

―rule‖ enforced by the 22nd Street Crew that violence was to be inflicted on

―snitches,‖44 it was foreseeable that the Johnson sisters, by cooperating with the

government, would be subject to retaliation by the members of the 22nd Street

Crew who had entered into the charged conspiracy. When Little, Beaver, and

fellow 22nd Street Crew member Dwyane Wright discovered that the sisters had

returned to 22nd Street, they determined, in accordance with the retaliatory goal of

the conspiracy, that the sisters should be killed because of their cooperation with

the government.

43

For example, Kyara‘s testimony in the instant case about appellant Tann‘s

and appellant Arnette‘s involvement in the Terrence Jones murder demonstrated

the continuing threat that Kyara, helped by her sister‘s support, posed to members

of the 22nd Street Crew and the coconspirators in this case.

44

Former gang member Andre McDuffie testified that ―[i]f someone was to

cooperate [with the government]‖ that ―there would be violence inflicted.‖

Alphonce Little testified that an ―automatic‖ rule of the crew was ―[d]on‘t snitch,‖

which ―[came] with the territory of the game,‖ and that nobody who the gang knew

to be a snitch ever came back to 22nd Street.

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The fact that Cooper was in jail at the time of Laquanda Johnson‘s murder

does not relieve him of liability under Pinkerton. Gatlin v. United States, 925 A.2d

594 (D.C. 2007) provides a useful framework for analyzing Cooper‘s claim. In

Gatlin, the defendant, who was incarcerated at the time of the murder of a

government witness by his coconspirator, challenged the admissibility of the

murdered witness‘s grand jury testimony under the forfeiture-by-wrongdoing

doctrine.45 We held that ―[i]t was reasonably foreseeable that intimidation of and

threats to witnesses could result in the murder of a witness.‖ Id. at 600. The facts

of Gatlin showed that the defendant, while in prison, communicated with his

associates about disposing of witnesses and, much like the facts of this case,

pressuring government cooperators ―to change their story.‖ Id. at 598.

Taken together, the evidence pertaining to the coconspirator‘s goals of

obstructing justice and inflicting violence upon snitches – persons with interests

contrary to those of the 22nd Street Crew members – demonstrated that Laquanda

Johnson‘s murder was reasonably foreseeable to Cooper, despite the fact that he

45

The same forfeiture-by-wrongdoing issue as applied to statements by

Laquanda Johnson is analyzed infra.

103

was in jail at the time. Little‘s act of murdering Laquanda was within the scope of

the conspiracy to obstruct justice by preventing government cooperators, such as

Laquanda and Kyara, from testifying against the 22nd Street Crew, and by

retaliating with violence against persons who collaborated with the government

against the gang. Collins, 73 A.3d at 982-84; Roberson v. United States, 961 A.2d

1092, 1095 (D.C. 2008); Gatlin, 925 A.2d at 600. We further conclude that there

was nothing about the breadth or nature of the conspiracy charged that made

Pinkerton liability unfair to Cooper.

VIII. Procedural and Evidentiary Issues Related to the Conspiracy and

Appellants’ Joint Trial

A. Cooper’s Prior Convictions

Appellants make several arguments involving the admission of Cooper‘s

2006 convictions for the Terrence Jones murder-Richard Queen assault. First,

Tann and Arnette contend that the trial court erred when it refused to sever their

trials from Cooper‘s after it became apparent that both the government and Cooper

intended to put evidence of Cooper‘s prior convictions in front of the jury.

Second, Tann, Arnette, and Cooper make the evidentiary argument that the prior

convictions should not have been admitted against each of them. The government

admits evidentiary error as to Tann and Arnette.

104

Before trial, the government indicated its intent to admit the convictions

because they would provide evidence as to the conspiracy count of (1) the Terrence

Jones murder and Richard Queen assault, which were represented in a series of

overt acts listed in the ind

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