GORDON C. CARPENTER and TYRONE P. JONES v. UNITED STATES

District of Columbia

Court of Appeals

Nos. 15-CF-126 & 15-CF-279

AUG 11 2016

GORDON C. CARPENTER and TYRONE P. JONES,

Appellants,

v. CF2-17930-13 &

CF2-17953-13

UNITED STATES,

Appellee.

On Appeal from the Superior Court of the District of Columbia

Criminal Division

BEFORE: THOMPSON and EASTERLY, Associate Judges; and FARRELL, Senior

Judge.

JUDGMENT

This case came to be heard on the transcript of record and the briefs filed,

and was argued by counsel. On consideration whereof, and as set forth in the opinion

filed this date, it is now hereby

ORDERED and ADJUDGED that judgments of conviction are affirmed.

For the Court:

Dated: August 11, 2016.

Opinion by Associate Judge Phyllis D. Thompson.

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

Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the

Court of any formal errors so that corrections may be made before the bound

volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 15-CF-126 and 15-CF-279

8/11/16

GORDON C. CARPENTER and

TYRONE P. JONES, APPELLANTS,

V.

UNITED STATES, APPELLEE.

Appeals from the Superior Court

of the District of Columbia

(CF2-17930-13 and CF2-17953-13)

(Hon. Patricia A. Broderick, Trial Judge)

(Argued June 16, 2016 Decided August 11, 2016)

Marc L. Resnick for appellant Jones.

Abram J. Pafford for appellant Carpenter.

Danny Lam Nguyen, Assistant United States Attorney, with whom Channing

D. Phillips, United States Attorney, and Elizabeth Trosman, Nicholas P. Coleman,

and Gilead Light, Assistant United States Attorneys, were on the brief, for

appellee.

Before THOMPSON and EASTERLY, Associate Judges, and FARRELL, Senior

Judge.

THOMPSON, Associate Judge: On October 8, 2013, Tyrone Jones and

Gordon Carpenter were arrested in connection with a narcotics buy/bust operation.

2

Mr. Jones filed (and Mr. Carpenter joined) a motion to suppress tangible evidence,

which was denied. A jury thereafter convicted each of them of one count of

unlawful distribution of a controlled substance (heroin), having heard an

undercover officer testify that she gave a $20 bill to Jones, who gave the money to

Carpenter, received from Carpenter in return a ziplock bag of heroin, and gave the

ziplock bag to the officer. A few months after the jury verdict, but before a

scheduled sentencing proceeding, the government made the following disclosure:

that, near the end of trial, after hearing testimony from both Carpenter and Jones

during the defense case, the courtroom clerk sent to the prosecutor an email

asserting that Carpenter and Jones were ―not telling the truth‖ when they claimed

that the money Jones paid Carpenter was for losing a bet on the outcome of a

professional football game the previous week. In response to that disclosure, Jones

filed a motion for a mistrial, which the court denied.

In this appeal, Carpenter challenges the denial of the motion to suppress and

also argues that the trial court erred in failing to strike, or to give a curative

instruction with respect to, a government witness‘s ―unfair[ly] prejudic[ial]‖ trial

testimony regarding a concern about officer safety. Jones contends that he is

3

entitled to reversal of his conviction, or at least to resentencing, because of the

courtroom clerk‘s email. For the reasons that follow, we affirm.

I.

A. The suppression hearing

Jones moved to suppress the evidence, including six ziplock baggies of

crack cocaine, found on his person.1 In (orally) joining Jones‘s motion, Carpenter

did not clarify what evidence he sought suppressed, but we understand from his

appellate brief that he challenged the admissibility of a prerecorded $20 bill found

on his person. At the suppression hearing, the court (the Honorable Patricia A.

Broderick) heard from Metropolitan Police Department (―MPD‖) Detective Phillip

Robinson, who testified that, on October 8, 2013, MPD was conducting a buy/bust

operation in the vicinity of the 600 block of Division Avenue, N.E. Detective

Robinson explained that he was on the arrest team that day when undercover

1

Jones was charged with unlawful possession of a controlled substance

(cocaine) as well as with distribution of heroin, but the cocaine-possession charge

was later dropped.

4

officers went into the 600 block to try to buy narcotics and were positioned near

the wall of a ―short‖ stone bridge that begins at Division Avenue and Foote Street

and ―then keeps going into the 600 block.‖ Upon receiving a lookout for ―two

African American males‖ ―in the 600 block of Division Avenue, around that

bridge‖ from whom the officers had received heroin in exchange for MPD funds,

Detective Robinson responded to the location, arriving in ―less than a minute.‖

According to the lookout, ―[b]oth [men] had hats on, one [with] a gray hoody and

white shirt and one [with] a blue hoody and a cane[.]‖2 When Detective Robinson

arrived at the scene, he saw two individuals fitting the lookout description.3 The

two individuals, appellants Jones and Carpenter, were standing seven or eight feet

apart from each other at, close to, or by the bridge. Detective Robinson testified

that there were ―[m]aybe ten other people‖ ―[i]n the immediate area‖ (―but not by

the bridge‖),4 but ―[t]here was no one else on that bridge . . . that would fit the

2

Detective Robinson later suggested that the lookout description for the

man with the cane included that he was wearing a ―light hat[.]‖

3

Detective Robinson testified that undercover Detective Jonathan Lewis

(who testified at trial that he provided surveillance to the officers conducting the

buy, watched the targets of the operation, and did not lose sight of the individuals

between the time when the undercover officers left the area and when the arrest

team arrived) had ―stayed in the area‖ and ―was helping with the lookout for Mr.

Carpenter and Mr. Jones.‖

4

Detective Robinson explained that ―sometimes you have kids there‖ (i.e.,

in the park that is ―on the other side of the . . . street‖‘) and that his estimate of

about ten other people included any children who were there.

5

description that the undercovers gave‖ for either individual.5 Detective Robinson

did not see Jones and Carpenter talking or otherwise communicating.

Approximately five to ten or ten to fifteen minutes after Detective Robinson

had stopped appellants, the undercover officers who had conducted the transaction

returned to the scene and positively identified Jones and Carpenter as the men with

whom they had engaged in the narcotics transaction. After the undercover officers

identified them, appellants were arrested.

Neither of the defendants presented evidence at the motion hearing. Without

elaborate explanation, the judge denied the motion to suppress, finding her

decision ―pretty easy.‖

5

Detective Robinson testified that a gully and a wooded area with unkempt

grass and vines are below and behind the wall of the bridge.

6

B. Trial

At trial, Detective Lavinia Quigley testified that, on October 8, 2013, she

and Officer Courtney Clark were undercover and were standing on the corner in

the 600 block of Division Avenue, N.E., when a man approached and asked them

what they wanted. Detective Quigley responded that they wanted ―blow[,]‖ a

―street name for heroin.‖ The man, whom the detective identified in court as

Carpenter, told them to wait, and he walked away. Approximately a minute and a

half later, another man, identified in court as Jones, approached them and asked

what they were looking for, and Officer Clark responded they wanted ―scramble‖

(heroin that has been cut up with a cutting agent). The officers walked with Jones

to the nearby bridge, Detective Quigley handed Jones a prerecorded $20 bill, and

Jones dropped the money off the side of the bridge to Carpenter, who the detective

could see was standing in the gully about six or seven feet immediately below the

bridge. Carpenter then passed up a ziplock bag containing a tannish powder.6

After leaving the location, the detective and officer gave a prearranged signal to

6

At trial, the parties stipulated that a Drug Enforcement Administration

chemist would testify that the substance in the bag was heroin.

7

another undercover officer. After the arrest team moved in and stopped the

defendants, the undercover officers returned three to four minutes later and

positively identified them as those involved in the transaction.

Detective Steven Manley testified that he provided surveillance and security

approximately two blocks away from the area of the ―buy‖ operation, and once he

received the lookout, he moved in ―to detain the two subjects who matched the

description[.]‖ He testified that, after the undercover officers returned and

positively identified the individuals, he arrested the men, whom he identified in

court as Jones and Carpenter. After arresting Carpenter, Detective Manley

searched Carpenter‘s pockets and found the prerecorded $20 bill. Asked about

whether his job was to observe the actual transaction, Detective Manley explained:

[A]s an arrest team member, you don‘t want to be too

close because then you‘re putting your undercover

officer‘s life in danger. When you go into areas like

Division Avenue, if they see something that sticks out

like a sore thumb, they know you‘re either the police or

. . . you‘re from not around [this] area. So the whole

thing is[,] I don‘t want to be too close to the undercover

officers, because, again, I‘m putting their life in danger.

8

Counsel for Carpenter objected and moved to strike because ―[t]here‘s nothing in

this record that suggested anybody‘s life was in danger.‖ Judge Broderick did not

strike the answer but responded, ―Well, there‘s certainly no suggestion that life

was endangered by these defendants.‖

Both Jones and Carpenter testified during the defense case. Carpenter

testified that on the day in question, he was driving home from work when he

stopped at Marvin Gaye Park in the 600 block of Division Avenue, N.E., to meet

friends. He further testified that about a week earlier, he and Jones, whom he

knew from previous encounters at the park, had placed a bet on a football game.

Specifically, Carpenter testified that Jones had bet $20 that the Washington

football team would beat Carpenter‘s favored team,7 but that Washington had lost

the game, and so when Carpenter saw Jones on October 8 (the first time he had

seen Jones since the football game), Carpenter asked Jones for the money the latter

owed for losing the bet. Carpenter testified that he then walked to a nearby store

where he stayed for ten to twenty minutes, walked into a gully below a bridge near

the park to urinate, and then returned to Jones to get the money. Carpenter testified

7

Although Carpenter could not remember which team Washington had

played, he thought they had ―probably play[ed] [one] of [his] teams[,]‖ which, he

explained, were Pittsburgh, San Francisco, and Miami.

9

that Jones handed him $20, and, ―seconds‖ later, the police arrived and said

Carpenter was under arrest for distribution of narcotics. Carpenter denied having

any narcotics in his possession at the time and denied passing any narcotics to

Jones.

Jones testified that he was sitting on the bridge when he saw Carpenter, with

whom he had made a $20 bet the week before. According to Jones, he had bet

Carpenter that Washington would win the football game, but Carpenter won the

bet, and so Jones paid him the $20. He testified that Carpenter was down behind

the bridge at one point, but he denied giving any money to, or receiving anything

from, Carpenter while Carpenter was there. Jones also denied being in possession

of the heroin that was introduced into evidence.

After Jones‘s testimony, the jury was released for its lunch break at 12:50

p.m. Upon the jury‘s return, the prosecutor announced that the government would

not need any rebuttal time, and the case proceeded to closing arguments, followed

by jury instructions and deliberations.

10

After the jury announced its guilty verdicts, Judge Broderick commented

that the defendants should ―get their affairs in order because . . . [t]his is serious.

They lied under oath. At least, that‘s what the jury found. I take that very

seriously.‖ She then addressed ―another option‖ besides releasing the defendants

until the sentencing date (having already rejected the prosecutor‘s request that the

defendants be held pending sentencing). Recognizing that this was a felony case

and that the defendants therefore would not qualify for work release after

sentencing, Judge Broderick provided the defendants with the option of either

earning incarceration credit while in a halfway house while awaiting sentencing

(while continuing to work for as long as possible) or being released into the

community. Carpenter accepted the option of earning time in the halfway house

pending sentencing, but Jones did not.

C. Sentencing

On December 12, 2014, when court convened for the scheduled sentencing

hearing, Assistant United States Attorney (―AUSA‖) Gilead Light sought a

11

postponement,8 which Judge Broderick granted.9 On January 13, 2015, the

government filed a disclosure, advising the court and defense counsel about an

email Light had received from the courtroom clerk on October 6, 2014, ―during

testimony in the defense‘s case-in-chief.‖ The courtroom clerk‘s email, sent at

12:30 p.m., read, ―[Washington] WON that week, and they played the Oakland

Raiders . . . so they are not telling the truth!!‖ During proceedings on January 15,

2015, Jones‘s counsel, in response to the government‘s disclosure, sought to delay

Jones‘s sentencing. Counsel asserted that Jones believed that Judge Broderick

became aware of the email or its contents during trial and that the result was the

comment the judge made about the defendants‘ having ―lied under oath.‖ Counsel

also told the court that Jones wanted time to review the trial transcripts and

consider moving for a mistrial. Counsel further expressed Jones‘s concern that the

email‘s content would affect his sentence. Judge Broderick stated that the email

had not been disclosed to her previously and that she ―ha[d] no memory of [any

8

AUSA Light apologized and referred to ―an issue that [arose] in my

preparation for sentencing over the last 20 hours – 24 hours[,]‖ about which he said

he ―ha[d] not yet had sufficient time to consult with the people [he] need[ed] to

consult with to decide how best to move forward[.]‖

9

Because sentencing was postponed and the judge ―d[idn‘t] want

[Carpenter] serving any extra time‖ in the halfway house, she decided to release

Carpenter.

12

remark] at all[,]‖ but allowed the matter to be continued ―so that [Jones] feels that

he‘s getting his shot‖ at reviewing the email issue.

Carpenter proceeded with sentencing on January 15, 2015; Judge Broderick

sentenced him to fifteen months‘ incarceration and three years‘ supervised release,

execution of sentence suspended as to all except served (the two months Carpenter

had served in the halfway house) and two years‘ supervised probation.10

On March 3, 2015, Jones moved for a mistrial ―based [on] . . . the courtroom

clerk conduct[ing] her own investigation and shar[ing] that information with the

prosecutor and judge in this case.‖ Judge Broderick denied the motion for a

mistrial, stating, ―[t]here‘s just no evidence that any of this information, . . . which

was public information . . . [that] anyone could‘ve gotten[,] . . . ever got to the

jury‖ and observing that Jones therefore had no ―basis to show any prejudice[.]‖

10

The government had sought eighteen months‘ incarceration, execution of

sentence suspended as to all but four months in prison, followed by two years‘

probation with implementation of an intervention plan. According to the

prosecutor, Carpenter had two prior misdemeanor convictions and nine arrests ―for

a variety of burglaries, thefts and unauthorized use of vehicles, purse snatches[,]

and drug related offenses.‖

13

Judge Broderick further stated, ―it‘s information that . . . I‘m allowed to use for

sentencing, but . . . I quite frankly don‘t need to [use] because the jury rendered its

verdict after hearing the defendant[,] [a]nd that‘s where I get my basis for

believing that the jury didn‘t believe him.‖

Judge Broderick reminded Jones that, after the verdicts had been rendered,

she had given both defendants the option of getting credit for time served by

staying in a halfway house pending sentencing or doing straight time after

sentencing, and that Carpenter chose a halfway house while Jones chose to remain

in the community and accept the potential of doing straight time. Before

announcing Jones‘s sentence, Judge Broderick commented that she ―want[ed] to be

fair to both [Carpenter and Jones]‖ in her ruling.11 She sentenced Jones to twenty

11

The judge also observed that because of Jones‘s criminal history

(according to the prosecutor, eleven prior convictions, including for drug offenses,

unauthorized use of a vehicle, and larceny, and thirty-three prior arrests), the

sentencing guidelines indicate a range of twenty to forty-two months and made

Jones‘s ―not a straight probation case.‖ She remarked that she was ―a little

restricted‖ in what she could do in terms of sentencing.

14

months‘ incarceration and three years‘ supervised release, suspended to all but six

months in prison, and eighteen months‘ supervised probation.12

II.

A. Carpenter’s appeal

1. The motion to suppress

Contending that his arrest was not supported by probable cause, Carpenter

argues that Judge Broderick erred in denying his motion to suppress the

prerecorded $20 bill recovered during the search incident to arrest. Specifically, he

claims that the ―lookout was too generic on its face to support a finding of probable

cause‖ and that the overall number of people in the arrest area ―diluted‖ ―[a]ny

limited value ascribed to‖ the description. Although Carpenter‘s opening brief

12

The government had sought twenty-four months‘ imprisonment to be

followed by supervised release, and the defense sought ―a split sentence with

minimal jail time and a lengthy period of probation.‖ (―A ‗short split‘ sentence is

one in which the court imposes a prison sentence that falls within the guideline

range for prison time, but ‗suspend[s] execution of all but six months or less — but

not all — of that sentence, and impose[s] up to 5 years [of] probation.‘‖

(D’Angelo) Johnson v. United States, 30 A.3d 783, 785 n.3 (D.C. 2011) (quoting

District of Columbia Voluntary Sentencing Guidelines Manual (2008) at 3-3 to 3-

4).) The prosecutor noted (and Jones did not dispute) that Jones‘s criminal history

resulted in a sentencing guidelines range of twenty to forty-two months.

15

states the issue as whether there was probable cause for his arrest, the facts upon

which he relies (the generality of the lookout and the activity at the scene) relate

instead (as appellant‘s Reply Brief appears to recognize) to whether the arrest team

officers were justified in stopping him.

A stop based on an undercover officer‘s lookout description is ―not an arrest,

but rather a brief detention designed to give the undercover officer an opportunity

to advise the arrest team if they had apprehended the perpetrators.‖ King v. United

States, 550 A.2d 348, 357 (D.C. 1988).13 ―The Fourth Amendment permits a

police officer to stop an individual for investigatory purposes so long as the officer

possesses a reasonable suspicion supported by ‗specific and articulable facts‘ that

the individual is involved in criminal activity.‖ Milline v. United States, 856 A.2d

616, 619 (D.C. 2004) (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)). ―An

investigatory detention is constitutionally permissible if it is supported by

reasonable suspicion, which is ‗a particularized and objective basis‘ for suspecting

13

We reject Carpenter‘s claim that that the stop turned into an arrest

because he was detained ―for as long as fifteen minutes‖ before the undercover

officers returned to identify him. See Hicks v. United States, 730 A.2d 657, 660

(D.C. 1999) (holding that where ―[t]he total time of detention,‖ which included

transporting the victim to an on-scene identification procedure, was ―not more than

twenty-five minutes[,]‖ the detention did not ―exceed the limits of a lawful Terry

detention‖).

16

the detained person of criminal activity.‖ Sharp v. United States, 132 A.3d 161,

169 (D.C. 2016) (quoting Ornelas v. United States, 517 U.S. 690, 696 (1996)).

―Our review of a trial court‘s denial of a motion to suppress is limited.‖

Joseph v. United States, 926 A.2d 1156, 1160 (D.C. 2007). ―[T]he facts and all

reasonable inferences therefrom must be viewed in favor of sustaining the trial

court‘s ruling.‖ Howard v. United States, 929 A.2d 839, 844 (D.C. 2006)

(alteration omitted). ―The court‘s legal conclusions on Fourth Amendment issues,

however, are subject to de novo review.‖ Joseph, 926 A.2d at 1160 (internal

quotation marks omitted).

The evidence at the suppression hearing was that Detective Robinson

received a lookout for two individuals from whom the undercover officers had

purchased narcotics near the bridge in the 600 block of Division Avenue,

specifically, ―two African American males[,] [b]oth had hats on, one had a gray

hoody and white shirt and [the other] had a blue hoody and a cane[.]‖ Detective

Robinson arrived at the scene of the stop within a minute, found appellants in the

same block described in the lookout, standing about eight feet apart from each

other on the bridge, and saw no individuals near the bridge other than appellants

17

who matched the lookout description. Thus, there was the ―close spatial and

temporal proximity between the reported crime and seizure‖ that can justify a

Terry stop notwithstanding an ―imperfect description.‖ United States v. Turner,

699 A.2d 1125, 1129 (D.C. 1997); cf. In re T.L.L., 729 A.2d 334, 340-41 (D.C.

1999) (―The generality of the descriptions of the robbers might not have been fatal

if the accused had been apprehended immediately after the robbery at the location

where the crime occurred.‖).

Further, although Detective Robinson‘s description of the role that

undercover surveillance Detective Lewis played was not crystal clear, Detective

Robinson testified that Detective Lewis had ―stayed in the area‖ and ―was helping

with the lookout for Mr. Carpenter and Mr. Jones.‖ That testimony and ―all

reasonable inferences therefrom[,]‖ viewed in the light most favorable to the

government as the party that prevailed on the suppression motion, Pridgen v.

United States, 134 A.3d 297, 302 (D.C. 2016), are additional support for a

conclusion that the detectives who stopped Jones and Carpenter had particularized

suspicion that they were involved in the narcotics transaction. Moreover, although

Carpenter emphasizes that the officers approached him ―in the midst of a busy

street scene‖ and failed to pay attention to other people who were in the park,

18

Detective Robinson explained that the park is on the other side of the street, that

some of the people who frequent the park are children (who, it seems, could

readily have been eliminated from suspicion) and that Jones — who was standing

near Carpenter — had a cane and a blue hoody and a light hat that ―you can‘t really

miss[.]‖ Considering that ―[t]he reasonable suspicion standard . . . requires

substantially less than probable cause and considerably less than proof of

wrongdoing by a preponderance of the evidence[,]‖ Henson v. United States, 55

A.3d 859, 867 (D.C. 2012) (internal quotation marks omitted), we are satisfied that

the officers had sufficient justification for stopping Carpenter (and Jones).14

For the foregoing reasons, we discern no error in the trial court‘s denial of

the motion to suppress the tangible evidence. In addition, after Detective Quigley

and Officer Clark returned to the area and positively identified Carpenter and Jones

14

See Milline, 856 A.2d at 620 (―Given (1) the exactitude with which the

lookout specified the subjects‘ location, (2) the proximity in time between the

lookout and the stop, (3) the particularity and unquestioned accuracy of the

description of Hawkins, (4) Milline‘s association on the scene with Hawkins, (5)

Officer Farmer‘s perception, which is uncontradicted, that Milline‘s appearance fit

the lookout description of the second suspect (whatever it was), and (6) the

absence of other people in the immediate vicinity who also matched the lookout,

we have no difficulty concluding as a matter of law that Officer Farmer was

justified in effecting an investigatory stop of Milline as well as of Hawkins.‖).

19

as the individuals involved in the drug transaction, probable cause existed to arrest

and search both men.15

2. The assertedly prejudicial testimony

Carpenter also argues that the trial judge should have stricken (or provided a

curative instruction with respect to) Detective Manley‘s testimony that, as a

member of the arrest team, he ―d[idn‘t] want to be too close [to the undercover

officers] because . . . [he would be] putting [their] li[ves] in danger.‖ Carpenter

argues this testimony was ―irrelevant and unfairly prejudicial‖ because it suggested

that the officers ―faced life-threatening danger in connection with the alleged

narcotics transaction[.]‖

Evidence is relevant if it has ―any tendency to make the existence of any fact

that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.‖ Plummer v. United States, 813

A.2d 182,188 (D.C. 2002). Here, Judge Broderick seemingly agreed that Detective

15

Id.

20

Manley‘s comment about putting the officers‘ lives in danger was irrelevant, but

she did not strike this testimony. It would have been preferable for the court to do

so. However, in light of the facts that Judge Broderick at least signaled to the jury

that this testimony had no bearing on Carpenter‘s trial; 16 that the government did

not highlight this testimony in closing; and that the evidence establishing

Carpenter‘s guilt was otherwise strong, we conclude that the court‘s failure to take

this step was harmless error. See Ebron v. United States, 838 A.2d 1140, 1150

(D.C. 2003) (assessing whether admission of irrelevant threats evidence was

harmless error by considering ―the closeness of the case, the centrality of the issue

affected by the error, and the steps taken to mitigate the effects of the error‖)

(internal quotation marks omitted).

B. Jones’s appeal

Jones‘s issues on appeal relate to the courtroom clerk‘s email. Jones first

argues that Judge Broderick abused her discretion in denying his motion for a

mistrial because the email amounted to (or occasioned) a violation of the Code of

Judicial Conduct (2012) (―Code‖) prohibition against ex parte communications.

Jones cites Rule 2.9 (A) of the Code (―A judge shall not initiate, permit, or

16

During his objection, Carpenter‘s attorney also remarked in the presence

of the jury that ―[t]here‘s nothing in this record that suggested anybody‘s life was

in danger.‖

21

consider ex parte communications, or consider other communications made to the

judge outside the presence of the parties or their lawyers, concerning a pending or

impending matter[.]‖).

A clear implication of the Rule 2.9 (A) prohibition against a judge‘s

―permit[ting]‖ ex parte communications is that a judge should caution her staff

against seeking out extraneous information concerning a pending matter or

conveying such information to the judge, a party, or counsel. That obligation is

made explicit in Rule 2.9 (D), which provides that ―[a] judge shall make

reasonable efforts, including providing appropriate supervision, to ensure that [the

Rule against ex parte communications] is not violated by court staff, court

officials, and others subject to the judge‘s direction and control.‖17

17

Rules 2.9 (A)(3) and 2.9 (C) may also be implicated. Rule 2.9 (A)(3)

provides: ―A judge may consult with court staff and court officials whose

functions are to aid the judge in carrying out the judge‘s adjudicative

responsibilities, or with other judges, provided the judge makes reasonable efforts

to avoid receiving factual information that is not part of the record, and does not

abrogate the responsibility personally to decide the matter.‖ Rule 2.9 (C) provides:

―A judge shall not investigate facts in a matter independently, and shall consider

only the evidence presented and any facts that may properly be judicially noticed.‖

See also Rule 2.9 cmt. 6 (―The prohibition against a judge investigating the facts in

a matter extends to information available in all mediums, including on-line

databases and the Internet generally.‖); Davis v. United States, 567 A.2d 36, 39, 41

(D.C. 1989) (error for judge to ―undertak[e] an off-the-record investigation to

(continued…)

22

Although it clearly was improper for the courtroom clerk to send the email

to the prosecutor, the record does not establish that Judge Broderick failed to

caution her staff or to make the requisite ―reasonable efforts.‖18 The record also

does not establish that Judge Broderick learned of the courtroom clerk‘s email or

its contents before the government‘s January 2015, disclosure.19 What is clear is

that the judge learned of the email and its contents before she sentenced Jones.

However, even taking into account that fact and, further, assuming arguendo that

the judge did learn of the email‘s contents before the government‘s disclosure, we

(…continued)

check appellant‘s veracity‖ and ―it is primarily the task of counsel, not the court, to

develop the facts essential to the jurors‘ understanding of the case‖).

18

The timing of the government‘s disclosure of the email, however, is

troubling: had the government disclosed it earlier, Judge Broderick would have

been alerted in a more timely fashion to the need to instruct and admonish her

courtroom clerk (and perhaps other members of her staff).

19

Jones argues that there would have been ―no firm basis‖ for the judge‘s

post-verdict remarks about defendants‘ having ―lied‖ unless the judge had taken

into account the courtroom clerk‘s email. However, Judge Broderick stated that

she ―g[ot] [her] basis for believing that the jury didn‘t believe [the defendants]‖

from the verdict the jury rendered after hearing the defendants‘ testimony. She

explained that the defendants ―lied under oath. At least, that‘s what the jury

found.‖ ―We have no reason to reject [her] explanation.‖ Belton v. United States,

581 A.2d 1205, 1214 (D.C. 1990); cf. Sloan v. United States, 527 A.2d 1277, 1287

(D.C. 1987) (accepting the trial court‘s statement, made ―explicitly on three

occasions[,]‖ that an ex parte communication between a juror and the judge‘s law

clerk after the jury verdict but before sentencing ―was not a factor in his sentencing

determination‖).

23

conclude for the reasons discussed below that Jones is not entitled to the relief he

seeks — reversal of his conviction or resentencing.

Jones does not claim that the email impacted jury deliberations; he

acknowledged in his motion for mistrial that the prosecutor, ―Mr. Light[,] did not

take any action based upon [the courtroom clerk‘s] information[,]‖ and he states in

his appellate brief that ―the issue was not, and is not, whether . . . Jones was

prejudiced during jury deliberations[.]‖20 Jones‘s contention is rather that he was

prejudiced during sentencing. We are unpersuaded by his argument, because the

sentence Judge Broderick imposed belies the claim of prejudice. The sentence

imposed — twenty months‘ incarceration and three years‘ supervised release,

20

The record supports that concession. The courtroom clerk‘s email was

sent during Jones‘s testimony. In cross-examining Jones, the prosecutor asked no

question about the putative bet on a football game or the outcome of the game, and

the government presented no rebuttal. And, during closing arguments, the

prosecutor referred to the testimony about the claimed bet only by saying that it did

―not matter‖ because Carpenter had more than one $20 bill on him.

Accordingly, Judge Broderick did not abuse her discretion in denying the

motion for a mistrial. See Harrison v. United States, 76 A.3d 826, 839 (D.C. 2013)

(―Absent a showing by appellant[] that [the] severe remedy was mandated, we

cannot find that the trial court abused its discretion in denying appellant[‘s] motion

for a mistrial.‖); Evans v. United States, 12 A.3d 1, 7 (D.C. 2011) (―We will

reverse a trial court‘s denial of a mistrial only where it appears irrational,

unreasonable, or so extreme that failure to reverse would result in a miscarriage of

justice.‖) (internal quotation marks omitted).

24

suspended as to all but six months‘ incarceration and eighteen months‘ probation

— was on the very low end of the applicable guidelines range (twenty to forty-two

months) for someone with Jones‘s criminal history of eleven prior convictions.

Moreover, the sentence was consistent with Jones‘s counsel‘s request for a split

sentence with minimal jail time and lengthy probation, and was significantly less

than the government‘s requested twenty-four months‘ straight time. These facts

weigh strongly in favor of a conclusion of no substantial prejudice. Cf. Gregg v.

United States, 394 U.S. 489, 493-94 (1969) (no prejudice shown from information

received by judge because the judge had no discretion in sentencing); Reel v. State,

886 S.W.2d 615, 618 (Ark. 1994) (judge‘s decision that sentences were to be

served concurrently ―suggests leniency‖ and gave no indication of compromised

impartiality).21

Jones alternatively claims that Judge Broderick displayed ―apparent

partiality‖ before and during sentencing, and, pursuant to Rule 2.11, should have

21

Jones also complains that he had no opportunity to rebut the information

in the email, but we reject that claim. The government disclosed the email to the

defense through a January 13, 2015, filing, and Jones did not file his motion for a

mistrial until March 3, 2015, meaning that he had time to challenge the information

in the email if he cared to do so.

25

recused herself for the sentencing phase.22 Rule 2.11 (A) provides that ―[a] judge

shall disqualify . . . herself in any proceeding in which the judge‘s impartiality

might reasonably be questioned,‖ and it requires recusal in ―any case where there

is an appearance of bias or prejudice sufficient to permit the average citizen

reasonably to question the judge‘s impartiality.‖ Anderson v. United States, 754

A.2d 920, 923 (D.C. 2000) (brackets omitted and emphasis omitted). Rule 2.11

(A)(1) specifically explains that a judge shall disqualify herself where ―[t]he judge

has . . . personal knowledge of facts that are in dispute in the proceeding.‖

This court repeatedly has recognized that ―justice must satisfy the

appearance of justice[,]‖ Foster v. United States, 615 A.2d 213, 219 (D.C. 1992)

(quoting Belton, 581 A.2d at 1214), and that we must consider both ―the risk that

the denial of relief [where there was an appearance of partiality] will produce

injustice in other cases, and the risk of undermining the public‘s confidence in the

22

The government argues that because Jones did not request Judge

Broderick recuse herself, he failed to preserve this claim. Yet, as we have

explained, it sometimes ―would be expecting too much to hold a defendant

accountable for failing, in effect, to accuse a judge of bias at the hearing just before

the discretionary, virtually non-reviewable act of sentencing takes place[,]‖ and ―a

judge should know the ethical restraints on the judicial office; a defendant should

not be penalized on appellate review for failure to point out to a judge the ethical

rules which the judge should know without coaching.‖ Belton, 581 A.2d at 1212.

We elect to consider Jones‘s claim under ―the standard of review available to any

criminal defendant who has made a timely request for relief.‖ Id. at 1212-13.

26

judicial process[,]‖ id. at 220 (quoting Liljeberg v. Health Servs. Acquisition Corp.,

486 U.S. 847, 864 (1988)). For that reason, we have reversed convictions or

vacated sentences in cases where an observer would have reasonably questioned

the trial judge‘s impartiality. See, e.g., Turman v. United States, 555 A.2d 1037,

1039 (D.C. 1989) (―To announce to the parties that the court had previously gained

a good impression of a witness‘ credibility, and then to proceed to weigh that

witness‘ credibility in the case at bar without assuring the parties that the previous

assessment would play no role in judging the pending case, created an appearance

of partiality, if not an implication of actual partiality, which tainted the trial

process.‖) (emphasis added); Belton, 581 A.2d at 1214-15 (remanding the case for

resentencing of defendant Cowan by a different judge because ―a hypothetical

objective observer who heard Judge Walton say at the sentencing hearing that he

had been ‗talking to some women who live out in Mayfair Manor,‘ who ‗know‘

James Cowan, and who said that James Cowan ‗was making their li[ves]

miserable[,]‘ . . . would know that Cowan had heard about these women for the

first time at the sentencing hearing and had had no opportunity to pursue the

accuracy of what the judge had reported[,]‖ ―would not have heard anything about

whether the judge was or was not going to use that information in his sentencing

decision[,]‖ and ―would have reasonably believed Judge Walton considered the ex

parte communication in Cowan‘s sentencing‖).

27

Here, by contrast, we are satisfied that the record provided no basis for a

hypothetical objective observer to question Judge Broderick‘s impartiality post-

email disclosure and prior to sentencing.23 Listening to the judge‘s comment (―it‘s

information that[] . . . I‘m allowed to use for sentencing, but . . . I quite frankly

don‘t need to‖24) the hypothetical objective observer (unlike the observer in

Belton) would have heard that the judge was not going to use the contents of the

email in her sentencing decision. Unlike in Turman, 555 A.2d at 1039, the judge‘s

comment would have conveyed to the observer assurance that the email and its

contents would play no role in the court‘s sentencing decision. Further, even after

disclosure of the email, Judge Broderick was solicitous toward Jones, allowing him

23

―Any problem of appearances — by definition — must be considered by

reference to the way events actually appeared [prior to sentencing],‖ not to the way

the situation now appears, post-sentencing. Belton, 581 A.2d at 1214.

24

Judge Broderick appears to have correctly understood that ―[a]

defendant‘s truthfulness or mendacity while testifying on his own behalf, almost

without exception, has been deemed probative of his attitudes toward society and

prospects for rehabilitation and hence relevant to sentencing.‖ United States v.

Grayson, 438 U.S. 41, 50 (U.S. 1978). As Belton makes clear, however, a court is

not permitted to use extra-judicial information — such as that contained in the

courtroom clerk‘s email — for sentencing purposes. See 581 A.2d at 1215; see

also Foster, 615 A.2d at 217-18, 221 (same). Thus, the judge‘s contrary

understanding of what, hypothetically, she could ―use for sentencing‖ was

mistaken.

28

the option of being released into the community to continue working or earning

incarceration time pending sentencing.

We are therefore satisfied that there was no actual or apparent partiality that

required the judge to recuse herself from sentencing or that requires a new trial or

resentencing.

III.

For the foregoing reasons, the judgments of conviction are hereby

Affirmed.