United States v. Rico Williams

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 10, 2015 Decided September 2, 2016

No. 12-3029

UNITED STATES OF AMERICA,

APPELLEE

v.

RICO RODRIGUS WILLIAMS,

APPELLANT

Consolidated with 13-3058

Appeals from the United States District Court

for the District of Columbia

(No. 1:09-cr-00026-1)

A.J. Kramer, Federal Public Defender, argued the cause

and filed the briefs for appellant. Jonathan S. Jeffress,

Assistant Federal Public Defender, entered an appearance.

Lauren R. Bates, Assistant U.S. Attorney, argued the

cause for appellee. On the brief were Vincent H. Cohen, Jr.,

Acting U.S. Attorney, and Elizabeth Trosman and Stratton C.

Strand, Assistant U.S. Attorneys.

2

Before: HENDERSON, GRIFFITH, and KAVANAUGH,

Circuit Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

Concurring opinion filed by Circuit Judge KAVANAUGH.

Opinion concurring in part and dissenting in part filed by

Circuit Judge HENDERSON.

GRIFFITH, Circuit Judge: Army Sergeant Juwan Johnson

died in July 2005 after participating in a violent hazing ritual

near Ramstein Air Force Base in Germany. A jury convicted

appellant Rico Williams of second-degree murder and witness

tampering for his role in the hazing and in covering up

information about Johnson’s death. We affirm Williams’s

conviction for witness tampering, but we reverse his murder

conviction.

I

Rico Williams was stationed at Ramstein Air Force Base

as an Airman in the United States Air Force starting around

2001. He was discharged for medical reasons in May 2005

but remained at Ramstein as a dependent of his wife, Octavia,

who was also an Airman. Williams was the leader, or

“governor,” of a group that went by various names: “BOS,”

“Brothers of the Struggle,” or “Gangster Disciples.” (For

simplicity, this opinion will refer to the group as the BOS.)

The BOS was made up of members of the U.S. Army and Air

Force at Ramstein but was not affiliated with the military.

Expert evidence at trial connected the BOS to the Gangster

Disciples, an American gang with roots in Chicago and

individual “sets,” or local groups, around the world. Although

members of the BOS often got into fistfights, the

3

government’s witnesses testified at trial that they did not

engage in any other criminal activity.

The BOS did, however, regularly initiate new members

by beating them up in a ritual known as a “jump-in.” During a

typical jump-in, approximately six members of the BOS hit

the initiate for about six minutes. Blows were to be landed

only between the neck and the waist, and the initiate was

forbidden from defending himself in any way. During the

jump-in, the initiates were asked repeatedly if they wanted to

proceed. If they said no, the initiation ended. After a jump-in,

the new member would be hugged, kissed on the cheek,

shown the BOS handshake, and taken out to celebrate. The

BOS had performed around fifteen to eighteen jump-ins

before Johnson’s; in none had a new member been

hospitalized or killed.

Johnson’s jump-in took place on the night of July 3,

2005, at a brick-floored hut near the Ramstein base. Nicholas

Sims, who was second in command to Williams in the BOS,

testified for the government that nine people participated in

Johnson’s jump-in—more than the usual six. Sims recalled

that Williams asked Johnson whether he wanted to begin.

Johnson responded: “Hell yeah.” Williams asked him again,

and he again replied: “Hell yeah.” Then Williams punched

Johnson in the face. Johnson fell immediately, but stood

again. Asked if he wanted to continue, he repeated: “Hell

yeah.” Williams again punched him in the face. The group

then began hitting him below the neck and above the waist.

After two or three minutes, the group stopped while Williams

and Sims, as the top-ranking members of the BOS, continued

to pummel Johnson for the next minute. The other members

then joined in again on the beating.

4

Another government witness, Themetrious Saraglou,

similarly testified that Williams asked Johnson before the

beating began if “he was sure he wanted this,” and that

Johnson said: “Hell yes.” Saraglou further testified that

throughout the jump-in, when Johnson fell, he was asked:

“Do you want this?” He “would reply and say, ‘yeah,’ or ‘hell

yeah,’ or even ‘f*** yeah.’” Saraglou testified that by about

halfway through the beating, Johnson wasn’t as “hyper” as he

had been at the beginning; he began responding simply

“yeah,” instead of “hell yeah.” At some point, Johnson was

held up as members continued to hit him repeatedly. At

another point, members kicked Johnson while he was on the

ground. No kicking had occurred at prior jump-ins. When the

six minutes were up, the timekeeper had to yell “time” three

times before the beating stopped. As a result, the jump-in

lasted longer than usual.

Johnson never lost consciousness during the jump-in and

though his mouth was bleeding, Johnson showed no other

visible sign of serious injury when it ended. According to

Sims, Johnson was exhausted and walking “like a drunk

person, but by himself.” Saraglou testified that Johnson was

walking slowly and said he was too sore to go out to celebrate

with the others. Williams directed BOS members to take

Johnson home and charged Florentino Charris with watching

him overnight. Charris testified that around midnight, Johnson

was slurring his speech and having trouble walking.

Sometime later, Johnson asked to go to the hospital. Instead

of taking him to the hospital, Charris relayed Johnson’s

request to another BOS member, who called Williams.

Williams said not to take him. Charris followed Williams’s

direction, but told Johnson to let him know if he needed

anything. Charris fell asleep in the room with Johnson. When

he woke up in the morning, Johnson was dead.

5

An autopsy revealed injuries to Johnson’s brain and

heart. These “blunt force injuries” inflicted during the

initiation caused Johnson’s death, according to the

government’s medical expert at trial. By contrast, the

defense’s medical expert opined that the underlying cause of

death was sickle-cell trait, a typically asymptomatic genetic

condition, and that “superficial blunt impact injuries” were

merely a “contributing” cause.

Two days following Johnson’s death, Williams moved

back to the United States. He was arrested in Virginia in

February 2009 and charged with four counts in relation to

Johnson’s death, one of which the district court dismissed

partway through trial. Of the remaining three, the first count

was second-degree murder under the Military Extraterritorial

Jurisdiction Act of 2000 (MEJA), which provides federal

jurisdiction over crimes committed by a civilian

accompanying the Armed Forces outside the United States.

See 18 U.S.C. § 3261 et seq.

The two other counts charged that Williams had

tampered with witnesses in violation of 18 U.S.C.

§ 1512(b)(3). One alleged that Williams made a threat to Sims

and three other BOS members at a cookout the day after

Johnson died. According to Sims, Williams told them that if

questioned by the authorities, they were to say that Johnson

died because “Turkish people jumped” him. Williams also

threatened that they would be “basically done for” if they told

the truth about Johnson’s death. Sims testified that he took

this threat to mean Williams would kill anyone who told the

truth. Trial Tr. 36-37 (Oct. 25, 2010). The other tampering

count alleged that Williams called Saraglou from the United

States later that month and told him to order Sims to cover up

a tattoo that signaled gang membership.

6

In November 2010, a jury found Williams guilty of

second-degree murder and one count of witness tampering

based on his threat to Sims (but not to any others). The jury

acquitted Williams of the tampering count related to Sims’s

tattoo. In April 2012, Williams was sentenced to 22 years’

imprisonment on the murder conviction and a concurrent 10

years’ imprisonment for witness tampering. The court also

ordered restitution of $756,000.

Williams moved for judgment of acquittal on the murder

and witness-tampering counts. As for the murder count, he

argued that the evidence was insufficient to establish that the

requirements of MEJA were met or that he had the state of

mind required for a murder conviction. The district court

denied that motion. See United States v. Williams, 825 F.

Supp. 2d 117, 118-19 (D.D.C. 2011). Williams also moved

for a new trial on the grounds that the government misstated

the law during closing argument and that the district court

made several incorrect evidentiary rulings. The district court

denied these motions, too.

On appeal, Williams contends that the evidence was

insufficient to convict him of murder. He also argues that a

prosecutorial misstatement of law during closing argument

substantially prejudiced his trial. He further challenges three

evidentiary rulings by the district court and various other

alleged prosecutorial errors. We have jurisdiction under 28

U.S.C. § 1291 and 18 U.S.C. § 3742(a).

7

II

We begin with Williams’s challenges to the sufficiency

of the government’s evidence at trial. 1 He maintains that the

prosecution failed to prove that he was “residing with” a

member of the U.S. military and that he was not a “national of

or ordinarily resident in” Germany at the time the offense

occurred, as required to establish federal jurisdiction under

MEJA. 18 U.S.C. § 3267(2). Further, he argues that the

evidence was insufficient to find that he had the requisite state

of mind for second-degree murder.

Our review is highly deferential: we must accept the

jury’s verdict if “any rational trier of fact” could have found

the elements of the crime beyond a reasonable doubt. United

States v. Battle, 613 F.3d 258, 264 (D.C. Cir. 2010). We view

the evidence in the light most favorable to the government,

drawing no distinction between direct and circumstantial

evidence, and “giving full play to the right of the jury to

determine credibility, weigh the evidence and draw justifiable

inferences of fact.” Id. Examined through this deferential lens,

Williams’s sufficiency-of-the-evidence arguments fail.

1

Although we reverse Williams’s murder conviction on the

basis of trial error, we nevertheless choose to address his challenges

alleging evidentiary insufficiency. If we conclude that the evidence

was insufficient to convict Williams of murder, his retrial would be

barred under the Double Jeopardy Clause of the Fifth Amendment.

See United States v. Williams, No. 13-3019, slip op. at 46 (D.C. Cir.

July 8, 2016) (addressing sufficiency-of-the-evidence arguments

after reversing conviction for trial error); Hoffler v. Bezio, 726 F.3d

144, 162 (2d Cir. 2013) (explaining that our sister circuits “are

unanimous in concluding that such review is warranted, at a

minimum, as a matter of prudent policy”).

8

A

At trial, the government was required to prove beyond a

reasonable doubt that Williams met the elements of MEJA,

which provides for federal jurisdiction over crimes committed

by civilians accompanying a member of the Armed Forces

abroad. See 18 U.S.C. §§ 3261, 3267(2). A defendant meets

the statutory criteria for “accompanying” a military member

if, at the time the crime occurred, he was: (1) a dependent of a

member of the Armed Forces; (2) “residing with” that

member outside the United States; and (3) “not a national of

or ordinarily resident in the host nation.” Id. § 3267(2).

Williams contends that the government failed to prove the

second and third elements of MEJA.

Although the question is close, the evidence was

sufficient for a rational juror to find beyond a reasonable

doubt that Williams was “residing with” his wife Octavia, a

member of the Air Force, when the crime occurred on July 3,

2005. Three of the government’s witnesses testified that

Williams lived with Octavia. One of those witnesses, Charris,

further testified that sometime after he joined the BOS in

April or May 2005, he attended a meeting at Williams’s house

and saw Octavia there. However, no witness said that

Williams lived with Octavia at the time of Johnson’s death.

Complicating matters, government witness Sims testified on

cross examination that Williams was having marital problems

in June 2005. Asked whether Williams was “moving around

and staying with” other people during this interval, Sims

responded that he was. Trial Tr. 29 (Oct. 26, 2010). He did

not identify where exactly Williams was staying but said that

Williams was “all over the place.” Id. Williams left Germany

and moved back to the United States on July 6, 2005.

9

This evidence meets the low bar required to defeat a

sufficiency-of-the-evidence challenge. As the district court

reasoned, a rational juror could have determined that Charris

joined the group as late as the end of May 2005 and,

therefore, that the meeting at Williams’s house where Octavia

was present took place in June or early July 2005. A juror

could rationally infer from this evidence that Williams resided

with his wife on July 3, 2005. Moreover, the government’s

witnesses offered unqualified testimony that Williams lived

with Octavia. A rational juror could infer that one of the

witnesses would have qualified his testimony had Williams

moved out before the jump-in. Cf. United States v. Lamy, 521

F.3d 1257, 1268 (10th Cir. 2008) (holding that a jury may

rationally infer from testimony that a house “is” within Indian

country that the house was “within reservation boundaries at

all times within the knowledge of the[] witnesses”). Taken

together, this evidence was sufficient to permit a rational juror

to find beyond a reasonable doubt that Williams resided with

his wife at the time of Johnson’s death.

Sims’s statement that Williams was staying with other

people in June 2005 may appear to cloud the picture.

However, the jury was entitled to discredit that testimony. See

United States v. Jenkins, 928 F.2d 1175, 1178 (D.C. Cir.

1991) (“Credibility determinations may rest on a witness’s

demeanor and, for that reason, are for the jury, not us.”). And

even those jurors who believed Sims could have inferred that

Williams resided with Octavia at the time of Johnson’s death.

Because MEJA does not define “residing,” we give the term

its ordinary meaning. See Alabama v. North Carolina, 560

U.S. 330, 340 (2010). To “reside” is “[t]o dwell permanently

or for a considerable time” or “to have one’s settled or usual

home in or at a particular place.” OXFORD ENGLISH

DICTIONARY (2d ed. 1989) (emphasis omitted). A person can

10

have more than one residence. See United States v.

Venturella, 391 F.3d 120, 125 (2d Cir. 2004); Eastman v.

Univ. of Mich., 30 F.3d 670, 673 (6th Cir. 1994). Thus, even

jurors who credited Sims’s testimony that Williams was

“staying” with other people in June 2005 could have

determined that Williams still “resided” with his wife—either

because he resided with her but was temporarily staying

elsewhere, or because he resided in multiple places. Where

the evidence can support “varying interpretations, at least one

of which is consistent with” the jury’s verdict, we must defer

to that verdict. United States v. Ayewoh, 627 F.3d 914, 919

(1st Cir. 2010) (emphasis omitted).

We similarly reject Williams’s argument that the

evidence was insufficient to prove that he was not a “national

of” or “ordinarily resident in” Germany at the time of

Johnson’s death. 18 U.S.C. § 3267(2)(C). As proof of

nationality, the government introduced a questionnaire that

Williams completed as part of a 1996 application for a

national-security position. Williams checked the box

indicating that he was a U.S. citizen or national by birth. He

wrote “NA” in the section of the questionnaire that inquired

about dual citizenship. Williams contends that the

government’s evidence establishes only that he was not a

German national in 1996. It says nothing about whether he

was a “national of” Germany on the date of Johnson’s death

in 2005.

The evidence of Williams’s nationality is indeed dated.

But as explained in a leading treatise on the law of evidence,

“[w]hen the existence of an object, condition, quality, or

tendency at a given time is in issue,” its “prior existence” can

indicate that it “persist[ed] or continu[ed] at a later period.”

United States v. Stuart-Caballero, 686 F.2d 890, 893 (11th

11

Cir. 1982) (per curiam) (quoting 2 WIGMORE, EVIDENCE

§ 437(1) (Chadbourn rev. 1979)). The likelihood that a

condition persists

depends on the chances of intervening circumstances

having occurred to bring the existence to an end. The

possibility of such circumstances will depend almost

entirely on the nature of the specific thing whose

existence is in issue and the particular circumstances

affecting it in the case in hand. That a soap bubble was in

existence half an hour ago affords no inference at all that

it is in existence now; that Mt. Everest was in existence

ten years ago is strong evidence that it exists yet[.]

Id. In our view, nationality falls closer to the Mount Everest

end of the spectrum. An individual’s nationality, while not

immutable, does not ordinarily change over the course of a

nine-year period. 2 Thus, knowing that Williams was not a

German national in 1996, a juror could rationally infer that he

was not one in 2005.

The evidence was also sufficient to prove that Williams

was not “ordinarily resident in” Germany. Again giving this

undefined term its ordinary meaning, we note that

2

For this reason, this case does not resemble those in which

our sister circuits have held that years-old certificates cannot

establish that a bank was federally insured at the time of an alleged

offense. See, e.g., United States v. Ali, 266 F.3d 1242 (9th Cir.

2001); United States v. Shively, 715 F.2d 260 (7th Cir. 1983);

United States v. Platenburg, 657 F.2d 797 (5th Cir. 1981). A bank’s

federally insured status lapses if premiums are not paid. See Stuart-

Caballero, 686 F.2d at 893.

12

“ordinarily” means “usually.” OXFORD ENGLISH DICTIONARY

(2d ed. 1989). MEJA thus envisions that a person

“accompanying the Armed Forces” in a host country resides

in that country as a military dependent, but is not usually

resident there. In other words, he lives there because of his

connection to the military rather than because of other

significant “local ties.” Daneshpayeh v. Dep’t of Air Force,

17 F.3d 1444, at *2 (Fed. Cir. 1994) (unpublished) (approving

an agency finding that a civilian Air Force employee was

“ordinarily resident in” Turkey because he had “profound

local ties” there). This interpretation also accords with

Congress’s intent in enacting MEJA, which was to permit the

United States to try crimes committed by civilians connected

to the military while simultaneously “recogniz[ing] that the

host nation has the predominant interest in exercising criminal

jurisdiction over its citizens and other persons who make that

country their home.” H.R. REP. 106-778, pt. 1, at 21 (2000).

We further observe that before the passage of MEJA, the

term “ordinarily resident” was used in Status of Forces

agreements—treaties governing the duties and privileges of

countries that station armed forces overseas. The military has

interpreted the term in various publications. While the

government does not ask us to defer to any of the military’s

definitions, see United States v. Apel, 134 S. Ct. 1144, 1151

(2014) (“[W]e have never held that the Government’s reading

of a criminal statute is entitled to any deference.”), they

confirm our interpretation that an individual must have at

least some significant ties to the host nation, outside of his

connection to the military, to qualify as “ordinarily resident.” 3

3

See, e.g., U.S. AIR FORCE, AFE 36-104, U.S. FORCES

CIVILIAN COMPONENT DETERMINATION IN THE UNITED KINGDOM

13

The government introduced evidence that Williams was

stationed at Ramstein because of his military service from

2001 until he was discharged in May 2005. A rational jury

could have readily inferred from this evidence that Williams

was not “ordinarily resident in” Germany during this period.

Cf. Collins v. Weinberger, 707 F.2d 1518, 1519 & n.7 (D.C.

Cir. 1983) (explaining that the Status of Forces agreement for

the North Atlantic Treaty Organization distinguishes military

personnel—and accompanying civilian employees—stationed

in a foreign nation from locals who are “ordinarily resident”

there). A rational juror could also infer that Williams did not

become an ordinary, or usual, resident of Germany in the

interval between his discharge and Johnson’s death. For

starters, this period was short, lasting no longer than two

months. Further, evidence showed that Williams’s home was

on base rather than in a private dwelling, and that he was

married to an American servicemember rather than to a

German national or ordinary resident. Evidence also revealed

that Williams left Germany for the United States two days

after Johnson’s death, on July 6, 2005, and never returned.

See Daneshpayeh, 17 F.3d 1444, at *2 (employee who was

3-4 (2014) (explaining that “ordinarily resident,” as used in the

Status of Forces agreement for the North Atlantic Treaty

Organization, “normally involves a number of factors,” and that

people who have lived abroad for more than a year “without a US

government connection” generally qualify as ordinarily resident in

the host nation); U.S. Army, Civilian Human Resources Agency—

Europe Region, Ordinarily Resident,

https://wu.acpol.army.mil/eur/employment/ordinarily_resident.htm

(last visited Aug. 24, 2016) (noting that U.S. citizens may become

ordinarily resident in Germany if, among other things, they live

there for a year without a connection to the U.S. military).

14

“ordinarily resident” in Turkey lived there for almost 20

years, was married to a Turkish woman, and lived in an

apartment building she owned). A jury could have rationally

inferred from this evidence that Williams did not have

significant local ties at the time of Johnson’s death but rather

lived there because of his connection to the military.

Before leaving our discussion of MEJA, however, we

observe that the government could have taken straightforward

steps to “avoid the need for judicial consideration of what

should be a non-problem.” United States v. Hall, 613 F.3d

249, 253 (D.C. Cir. 2010). With respect to Williams’s

residency with his wife, for example, the government could

have asked its witnesses where Williams lived at the time of

Johnson’s death or introduced evidence of where Williams

kept belongings or received mail. See United States v. Morris,

977 F.2d 617, 620 (D.C. Cir. 1992) (concluding that evidence

that a defendant kept his possessions in an apartment could

“support a reasonable inference that [he] lived [there]”). As

we have in other close cases, we note that “[t]he sufficiency

of evidence is always situational,” and that the government

“should not find out the hard way what change in

circumstances would be sufficient to render its inadequate

performance on this issue fatal to a conviction.” Hall, 613

F.3d at 253.

B

Williams next argues that the evidence was insufficient

for a rational juror to find beyond a reasonable doubt that he

15

acted with the mental state required for murder. We reject this

contention. 4

Whether a defendant is convicted of second-degree

murder, as opposed to involuntary manslaughter, depends on

the presence of malice aforethought. Compare 18 U.S.C.

§ 1111(a) (murder), with id. § 1112(a) (manslaughter). Malice

can be proven by showing that a defendant intended to kill or,

as the government argued here, that he consciously

disregarded an extreme risk of death or serious bodily injury.

Williams contends that the government did not prove that his

actions met the heightened standard of recklessness required

for a murder conviction. He points to testimony that Johnson

repeatedly said he wanted the jump-in to continue and did not

appear seriously injured when it ended. Williams also argues

that the evidence showed he told other BOS members to take

Johnson to the hospital if necessary.

But the government presented ample evidence from

which a rational juror could infer that Williams consciously

4

Williams also argues that his conviction for witness

tampering and the order that he pay restitution must be reversed

because the evidence was insufficient to convict him of murder.

This argument appears to be grounded in part on the belief that a

defendant cannot be convicted of witness tampering unless he

actually committed a federal crime—a dubious interpretation of the

relevant statute, see 18 U.S.C. § 1512(b), (b)(3) (“Whoever

knowingly uses intimidation . . . with intent to . . . prevent the

communication to a law enforcement officer . . . of information

relating to the commission or possible commission of a Federal

offense . . . shall be fined under this title or imprisoned[.]”

(emphasis added)). At any rate, we need not rule on the propriety of

this interpretation because the evidence was sufficient to convict

Williams of murder.

16

disregarded an extreme risk of death or serious injury to

Johnson. For example, testimony at trial suggested that

Williams had a signature move called the “one-hitter quitter,”

which knocked people out with one punch, and that he once

refused to initiate the group’s female member via jump-in

because it “would kill her.” Testimony also suggested that

Johnson’s jump-in was more dangerous than prior hazings.

Not only did it last longer and involve more people than

usual, but Saraglou testified that Johnson was held up at one

point while group members repeatedly punched him without

asking if he wanted to continue the jump-in. And Sims stated

that at another point, Johnson curled up in a ball while he was

kicked. According to Charris’s testimony, moreover, after the

jump-in Williams told another BOS member over the phone

not to take Johnson to the hospital. A rational juror could infer

from this evidence that Williams was aware of his own

strength, understood that jump-ins could lead to serious injury

or death, and knew that Johnson’s jump-in presented a more

extreme risk than most initiations. From this evidence, the

jury was entitled to find that Williams behaved with

conscious disregard of an extreme risk to human life. See

United States v. Foster, 557 F.3d 650, 655 (D.C. Cir. 2009)

(explaining that in a sufficiency-of-the-evidence challenge,

the court must give “full play to the right of the jury to

determine credibility, weigh the evidence and draw justifiable

inferences of fact”).

III

Williams next argues that a prosecutorial misstatement of

law during closing argument substantially prejudiced the

outcome of his trial. We agree that the government misstated

the law in its closing argument. Because the misstatement

implicated a central issue—the state of mind with which

17

Williams acted—and was not sufficiently cured, it requires

reversal of Williams’s murder conviction.

A

Before trial, the parties agreed on a jury instruction

explaining that Johnson’s willing participation in the jump-in

did not excuse or justify Williams’s conduct. The instruction

read, in relevant part: “The defense of consent is not available

for homicide or involuntary manslaughter, and therefore

should not be considered.” Proposed Jury Instructions 46, No.

1:09-cr-00026 (D.D.C. Oct. 19, 2010). After trial began,

however, Williams asked the district court to add language to

that instruction to clarify that the jury could consider

Johnson’s consent to the jump-in “in determining whether the

defendant had the necessary malice aforethought to establish

the crime of second-degree murder.” Trial Tr. 57 (Nov. 5,

2010). He argued that the particular circumstances of the case

required a more detailed instruction to clarify that the jury

could consider Johnson’s willing participation in the initiation

when assessing whether Williams consciously disregarded an

extreme risk to human life. The district court denied this

request because, in the court’s view, it was inaccurate to

suggest that Johnson’s acquiescence could bear on Williams’s

state of mind.

In closing argument, defense counsel emphasized that

Johnson was excited about participation in the initiation and

that every time he was asked if he wanted to continue with the

beating, he said yes. Counsel went on to say:

[T]he Judge is going to tell you that consent is not a

defense, and we understand that, but it has to factor in . . .

to whether [] Williams . . . intended to kill [or] seriously

injure [] Johnson, and had a reckless disregard for his life

18

or serious injury. When [a] person . . . is saying, yes, yes,

yes, that’s got to affect something—it may not be a legal

defense, but it’s got to affect the state of mind of the

person who supposedly murdered him.

Trial Tr. 32 (Nov. 8, 2010). In its rebuttal, the government

responded that defense counsel had inaccurately stated the

law:

[Defense counsel] gave you some incorrect law because

the judge is the one—he’s the final—he is the expert on

the law, the judge. And you can’t take—Sergeant

Johnson went in there thinking that he was going to

become a member of a brotherhood. He did not go in

there willingly to get killed because consent is never ever

a defense to murder. It is no defense to second degree

murder or involuntary manslaughter, and you know what,

the judge is going to tell you—[defense counsel] told you

to consider it; don’t even consider it because you can’t

consider it. It is not a defense . . . . You can’t even

consider it in his intent or anything else. You just cannot.

Id. at 100-01 (emphasis added). After the rebuttal concluded,

defense counsel objected and asked the district court to give a

“curative” instruction. The proposed language would have

read:

During yesterday’s rebuttal argument, you heard [the

government] tell you that you could not consider Juwan

Johnson’s consent to the initiation ceremony when

determining whether the government has proven beyond

a reasonable doubt Mr. Williams’s intent to commit the

offenses of second degree murder or involuntary

manslaughter. As I will instruct you momentarily,

consent is not a defense to these charges. However, under

19

the law, you may consider Juwan Johnson’s consent to

the initiation, among all the other evidence I have

admitted, in determining whether the government has

proven Mr. Williams’ intent to commit the crimes of

second degree murder or involuntary manslaughter

beyond a reasonable doubt.

Mr. Rico Williams’ Objection to Gov’t’s Improper Closing

Arg. & Mot. for Curative Instruction 4-5, No. 1:09-cr-00026

(D.D.C. Nov. 9, 2010).

The district court refused to read this proposed “curative”

language to the jury, concluding again that it was inaccurate

to suggest that the victim’s acquiescence had any impact on

the defendant’s state of mind. However, the district court

modified the first sentence of the consent instruction to read

simply: “Consent is not a defense to second degree murder or

involuntary manslaughter”—excising the language “and

therefore should not be considered.” Trial Tr. 16-17, 46 (Nov.

9, 2010). The district court also offered to give the jury an

additional instruction on proof of state of mind. It pointed to a

standard criminal jury instruction that explains that someone’s

state of mind “ordinarily cannot be proved directly,” but may

be inferred from the defendant’s conduct and other

“surrounding circumstances” that the jury finds relevant.

Instruction No. 3.101 of the Criminal Jury Instructions for the

District of Columbia (2014). The district court acknowledged,

however, that this additional instruction would not satisfy the

defense’s request for a curative instruction. The defense

declined it, and the district court did not read it to the jury.

Williams argues that the government’s misstatement of

law substantially prejudiced him. He agrees that consent is not

an affirmative defense to homicide, but insists that Johnson’s

20

consenting behavior—that is, his “continued, and enthusiastic,

statements that he wanted the initiation to continue”—

suggested that Williams was not conscious of an extreme risk

that Johnson might die or be seriously injured. Appellant’s Br.

63-65. According to Williams, the government’s rebuttal

argument that consent cannot be considered “in [Williams’s]

intent or anything else”—coupled with the district court’s

instruction that “consent is not a defense”—prevented the jury

from considering crucial context when determining whether

Williams acted with malice aforethought.

B

Williams asserts that the government’s closing argument

improperly led the jury to believe that it could not consider

crucial evidence of Williams’s state of mind, and that the jury

instructions “supported” this misperception. Appellant’s Br.

65. In other words, he alleges that improper prosecutorial

argument prejudiced his trial. When reviewing such

challenges, we first examine whether the government’s

statement was indeed error, keeping in mind that it need not

have been deliberate or made in bad faith to be erroneous. See

United States v. Watson, 171 F.3d 695, 700 (D.C. Cir. 1999).

If the remark was error, we evaluate whether the error

substantially prejudiced the defendant and therefore requires

reversal. United States v. Straker, 800 F.3d 570, 628 (D.C.

Cir. 2015). When considering prejudice, we examine, among

other factors, the steps the district court took to cure the

erroneous remark. See United States v. Gartmon, 146 F.3d

1015, 1026 (D.C. Cir. 1998).

i

The government misstated the law in its closing

argument. When the government said that the jury could not

21

consider Johnson’s consent in determining Williams’s “intent

or anything else,” it inaccurately conflated two issues: (1)

whether a victim’s consent can be a justification or excuse for

the commission of a crime, and (2) whether it can bear on the

presence or absence of an element of the crime.

This distinction is fundamental in criminal law. If an

element of a crime is missing, the charged culpable conduct

has not occurred. Here, malice aforethought was an element

of the crime with which Williams was charged; if he acted

without this state of mind, he could not have been guilty of

second-degree murder. By contrast, legally recognized

justifications or excuses are “affirmative defenses” that

eliminate criminal liability even though all of the elements of

a crime are met. See 2 WAYNE R. LAFAVE, SUBSTANTIVE

CRIMINAL LAW § 9.1 (2d ed. 2003). For example, a defendant

who purposefully kills in self-defense satisfies the elements of

murder: he has performed the required act (killing) with the

required mental state (intent to kill). But he is not criminally

liable because his actions are deemed justified. Id. Similarly, a

defendant who purposefully kills but does not know that his

conduct is wrong satisfies the elements of murder, but may be

excused from criminal liability because of insanity. Although

his actions are not seen as justified, society excuses his

conduct because he lacked responsibility for his actions

through no fault of his own. Id.

An argument that a required element of a crime is

missing is sometimes colloquially deemed a “defense.” For

example, “the defense to a murder prosecution [might be] that

the victim died accidentally.” 1 LAFAVE, supra, § 1.8 n.25.

But this argument is “not really an ‘affirmative defense’ at

all.” Id. Instead, it is “more correctly” viewed as an argument

that the government has failed to prove an element of the

22

crime. 2 LAFAVE, supra, § 9.1; see also United States v.

Sandoval-Gonzalez, 642 F.3d 717, 723 (9th Cir. 2011)

(distinguishing between “[c]lassic affirmative defenses,” such

as justification or excuse, and “[o]ther ‘defenses’ . . .

advanced simply to negate an element of the crime”). At trial,

Williams sought to make precisely this latter kind of

argument: that Johnson died accidentally rather than as a

result of Williams’s conscious disregard for human life.

Properly understood, this contention is not an affirmative

defense such as justification or excuse, but simply an

assertion that a required element of the crime of murder—

malice—was missing.

By contrast, the rule that consent cannot be a defense to

homicide means simply that consent is not an affirmative

defense in the vein of justification or excuse. See 40 AM. JUR.

2D HOMICIDE § 110 (“In application of the general principle

that consent is not a defense to a crime if the activity that was

consented to is against public policy, it is the rule that, in a

prosecution for homicide, consent of the deceased is no

excuse.” (emphasis added)); Vera Bergelson, Victims and

Perpetrators: An Argument for Comparative Liability in

Criminal Law, 8 BUFF. CRIM. L. REV. 385, 399-400 (2005)

(“[W]ith respect to some acts, society does not recognize even

the possibility of valid consent. . . . The most prominent

among them is homicide—the victim’s consent to be killed is

never a complete justification for the perpetrator.” (emphasis

added)). This rule does not foreclose a jury from considering

all relevant facts and circumstances surrounding a homicide to

determine whether the defendant consciously disregarded an

extreme risk to human life, and therefore whether a necessary

element of the crime had been proven.

23

To the contrary, such evidence is critical in determining

whether a defendant is guilty of second-degree murder or the

lesser crime of involuntary manslaughter. While second-

degree murder requires at least a conscious disregard of an

extreme risk of death or serious injury, involuntary

manslaughter requires that a defendant engage in reckless

conduct that created an extreme risk of death or serious injury

of which he should have been aware, but was not. See

Proposed Jury Instructions 40-42, No. 1:09-cr-00026 (D.D.C.

Oct. 19, 2010). In other words, the difference between

second-degree murder and manslaughter “lies in the quality of

awareness of the risk.” United States v. Dixon, 419 F.2d 288,

293 (D.C. Cir. 1969) (Leventhal, J., concurring). The jury

may infer that the defendant was aware of the risk from the

surrounding circumstances. United States v. Cox, 509 F.2d

390, 392 (D.C. Cir. 1974). Here, Johnson’s repeated

insistence that he wanted the jump-in to continue might have

signaled to Williams that Johnson was in no serious danger.

And if Williams believed that, Williams could not have been

aware of an extreme risk to human life.

To illustrate, consider a counterfactual: what if, instead of

repeatedly affirming that “yes,” he wanted to continue the

initiation, Johnson had said “no,” or “stop”? Surely this

evidence would point in favor of a finding that Williams

consciously disregarded an extreme risk of death or injury.

Johnson’s behavior was highly relevant—indeed, crucial—in

determining whether Williams was guilty of murder or

manslaughter. As such, Williams was entitled to have the jury

consider that evidence. See Hopt v. People, 104 U.S. 631,

633-34 (1881); 5 ORFIELD’S CRIMINAL PROCEDURE UNDER

THE FEDERAL RULES § 30:23 (West 2016) (“Intent is a

question of fact which must be submitted to the jury in the

light of all relevant evidence.”).

24

But the government’s closing argument may well have

led the jury to believe it could not consider this crucial

evidence. In its closing, the defense focused the jury on

Johnson’s enthusiastic participation in the jump-in, explaining

that “[w]hen [a] person . . . is saying, yes, yes, yes, that’s got

to affect . . . the state of mind of the person who supposedly

murdered him.” In rebuttal, the government said the defense’s

statement was “incorrect law.” The government then

purported to interpret the jury instruction that consent is not a

defense by explaining to the jury that “the judge is going to

tell you” that “you can’t consider” Johnson’s consent when

evaluating Williams’s “intent or anything else.” The dissent

suggests that by “consent” the government only referred to

the word’s legal meaning of subjective willingness, not

manifestation of consent by behavior or words. But “[n]either

courts nor juries parse extemporaneous remarks in closing

argument as closely as sentences in carefully drafted legal

documents,” and what matters is what the jury would “have

understood the prosecutor to say.” United States v. Venable,

269 F.3d 1086, 1090 (D.C. Cir. 2001). Here, the government

characterized as incorrect the defense’s statement that

Johnson’s behavior—his “yeses”—was probative of

Williams’s degree of recklessness, and further suggested to

the jury that it could not consider this behavior for any

purpose. This was error.

ii

A prosecutorial misstatement during closing argument is

ground for reversal only if it substantially prejudiced the

defendant. Straker, 800 F.3d at 628. “[C]ontext is key” in

determining the effect of the misstatement. Venable, 269 F.3d

at 1090. If, considering the context of the full trial, we are

“sure that the error did not influence the jury, or had but very

25

slight effect, the verdict and the judgment should stand.”

United States v. Fowler, 608 F.2d 2, 12 (D.C. Cir. 1979)

(quoting Kotteakos v. United States, 328 U.S. 750, 764-65

(1946)). But if we “cannot say, with fair assurance,” that “the

judgment was not substantially swayed by the error, it is

impossible to conclude that substantial rights were not

affected.” Id. To determine whether the error substantially

prejudiced the defendant, we consider the severity of the

error, the centrality of the issue affected by the error, the

closeness of the case, and the steps taken to cure the error. See

Gartmon, 146 F.3d at 1026.

Looking first at severity, it is true that the problematic

statement amounted to a small portion of closing argument.

However, read “in context,” Venable, 269 F.3d at 1091, there

is a very real chance that the statement led some jurors to

believe they could not consider Johnson’s consenting

behavior at all. The district court’s administration of the

“consent is not a defense” instruction, after the government

inaccurately interpreted it, may well have left jurors with the

mistaken impression that they could not consider Johnson’s

repeated statements that he wanted the initiation to continue.

Because the statement was made by the government, it carried

particular weight. See Spivey v. Head, 207 F.3d 1263, 1275

(11th Cir. 2000) (“Improper prosecutorial arguments,

especially misstatements of law, must be considered carefully

because ‘while wrapped in the cloak of state authority [they]

have a heightened impact on the jury.’” (citation omitted)).

And the remark’s potential for prejudice was even more

pronounced because it occurred during the government’s

rebuttal—allowing the defense no opportunity to respond.

Further, any misunderstanding that this statement might

have engendered implicated a central issue: Williams’s

26

awareness of the risk to Johnson. To convict Williams of

second-degree murder, the jury had to find that Williams was

conscious of an extreme risk of death or serious injury to

Johnson. If Williams was not conscious of this risk, but

should have been, then the jury could convict him only of

manslaughter. See Dixon, 419 F.2d at 293 (Leventhal, J.,

concurring).

As to the third factor in our analysis of substantial

prejudice, the government acknowledged that the case was a

close call on this very issue: Williams’s awareness of the risk.

The district court agreed, explaining that “it was a close case

between second degree murder and manslaughter” and that

while “a reasonable jury could have reached the conclusion it

reached, [] it would not have been irrational to conclude it

was manslaughter instead.” Tr. of Proceedings 27 (June 3,

2011). To be sure, as described above (in II.B) and by the

dissent, the evidence permitted the jury to find that Williams

was aware of an extreme risk to human life. But other

evidence suggested that Williams acted without a conscious

disregard for human life—even if his behavior created an

extreme risk that he should have known about. See United

States v. Smart, 98 F.3d 1379, 1391 (D.C. Cir. 1996)

(explaining that substantial prejudice is “not a mere

sufficiency-of-the-evidence inquiry”). For example: no

serious injuries had occurred in any of the fifteen to eighteen

prior jump-ins the group had performed; members repeatedly

asked Johnson if he wanted to continue with the initiation and

testified that they would have stopped had he said no; Johnson

had no unmistakable outward signs of major injuries after the

jump-in; and some expert testimony suggested that trauma

from the jump-in was not the primary cause of death—rather,

Johnson’s undisclosed, underlying medical trait was. The

question of Williams’s awareness of the risk to Johnson was

27

therefore close, and as we have explained, “the danger that an

error will affect the jury’s verdict” increases significantly “in

a case where the evidence at trial is conflicting.” Id. at 1392.

Finally, insufficient steps were taken to cure the error. To

be sure, the district court’s general instructions informed the

jury that the parties’ closing arguments were not evidence and

that the jury should apply the law as instructed by the court.

Such instructions can have an ameliorative effect. Venable,

269 F.3d at 1091. For example, where the government

improperly suggested the defendant must prove his innocence,

we have held that the court’s instruction on burden of proof

cured the mistake because it clearly informed the jury of the

relevant law. See id. at 1089, 1091. But “there are limits” to

the efficacy of such general instructions when “the

instructions d[o] not address the prosecutor’s error in closing

argument, and the error affect[s] a central issue.” Watson, 171

F.3d at 702. For instance, in United States v. Hall, 610 F.3d

727 (D.C. Cir. 2010), we held that a closing argument’s

“reference to [the court’s] forthcoming jury instructions could

not alone remove the taint of the error.” Id. at 742. In that

case, cited by the defense as an example of a curative

instruction, we found that the error was cured because the

court’s instructions corrected the specific point of law that the

government misstated. Id. at 742 & n.6.

Here, no instruction sufficiently corrected the potential

confusion engendered by the government’s argument. While

the district court instructed the jury on the state of mind

required for murder and manslaughter, this instruction would

not have corrected the misimpression that, under the separate

“consent is not a defense to murder” instruction, Johnson’s

28

statements and actions could not be considered in determining

Williams’s consciousness of risk. 5 Because the error went to a

central and close issue in the case, and because it was

insufficiently cured, we reverse Williams’s murder

conviction. 6

iii

On appeal, the government appears to concede that

Johnson’s statements and behavior were important evidence

of Williams’s state of mind, but it suggests that Williams’s

use of the term “consent” in his proposed curative instruction

invited confusion because it implied that Johnson’s subjective

willingness to participate in the jump-in was pertinent in

assessing Williams’s state of mind.

5

We do not understand Williams to argue before us that the

“consent is not a defense” jury instruction, on its own, was a

problem. We therefore decline to consider whether that instruction

adequately conveyed the relevant law. As we observed above,

however, the term “defense” is open to multiple interpretations

because of its colloquial use to refer to a defendant’s argument that

an element of the crime is missing. See 1 LAFAVE, supra,

§ 1.8 n.25.

6

To the extent that Williams argues that this error also

requires the reversal of his witness-tampering conviction, we

disagree. Although Johnson’s behavior was highly relevant in

assessing Williams’s state of mind for the purposes of the murder

charge, it had little if any bearing on the charge that Williams

threatened Sims. The state-of-mind issue was therefore not central

to the tampering conviction. Moreover, as we explain below, the

witness-tampering charge did not present a particularly close case.

See Gartmon, 146 F.3d at 1026.

29

We agree that Williams might have been better served to

use a term such as “consenting behavior” instead of “consent”

to avoid any risk of misunderstanding. But the defense made

sufficiently clear that it was using the term “consent” to refer

to Johnson’s outward behavior—not his subjective state of

mind. For example, when requesting a curative instruction,

defense counsel explained its argument this way: “[I]f

someone is hitting somebody . . . and they’re saying, ‘Yes, I

still want it, yes, I still want it,’ it would be reasonable—at

least the defense would argue it would be reasonable to think

that he’s not in . . . physical jeopardy; that he can keep hitting

him and he’s not going to kill him, that he’s going to keep

hitting him and he’s not going to seriously injure him.” Trial

Tr. 7 (Nov. 9, 2010). Counsel further argued that unless the

government’s misstatement was “cured,” the jurors “are going

to be saying: No, you can’t consider that he said, ‘hell yeah,’

whatever. You can’t consider that . . . at all. The judge took

that off limits for us.” Id. at 8. Looking at the record, we

believe the district court understood counsel’s argument and

simply rejected it. Tr. of Proceedings 25 (June 3, 2011)

(“[W]hatever the decedent may have said or done can in no

way affect the mental state or mens rea of the defendant.”

(emphasis added)).

We do not mean to suggest, however, that the district

court was required to accept the precise curative language that

Williams proposed. Of course, had it done so, Williams could

not now complain that the instruction was improperly worded.

See United States v. Wells, 519 U.S. 482, 488 (1997)

(“[U]nder the invited error doctrine[,] a party may not

complain on appeal of errors that he himself invited or

provoked the district court to commit.” (alterations omitted)).

Alternatively, had the court agreed with Williams’s concern

but believed that his proposed instruction would confuse the

30

jury, it could have rephrased the instruction to refer more

directly to Johnson’s statements and behavior. Similarly, if

the court was reluctant to highlight specific evidence

favorable to Williams, as the dissent suggests, it could have

rephrased the instruction to refer generally to the victim’s

behavior (just as the model instruction that the district court

offered, and the dissent approves, refers generally to “any

statement made or acts [done by the defendant],” Instruction

No. 3.101 of the Criminal Jury Instructions for the District of

Columbia (2014)). Or the court could have recited evidence

favorable to both sides, as the dissent proposes. Instead, it

concluded that no curative instruction was needed. We

disagree.

The government also points out that Williams declined

the district court’s offer to read an additional instruction on

proof of state of mind. If the government means to suggest

that Williams invited error by refusing an instruction that

would have cured the government’s misstatement, it presented

this argument inadequately in its brief. City of Nephi v.

FERC, 147 F.3d 929, 933 n.9 (D.C. Cir. 1998) (explaining

that a party “fail[s] properly to raise [an] argument” on appeal

when it “merely inform[s] the court” of the factual basis for a

claim).

At any rate, the additional instruction suggested by the

district court would not have cured the government’s

misstatement. As described above, that instruction simply

provided that a person’s state of mind “ordinarily cannot be

proved directly,” but that the jury may infer state of mind

“from the surrounding circumstances.” Instruction No. 3.101.

The instruction further explained that the jury may consider

the statements and acts of the defendant and “all other facts

and circumstances received in evidence” that indicate his state

31

of mind. Id. But the prejudice Williams identifies is that the

jury might have believed that the consent instruction

separately precluded it from considering the victim’s

consenting behavior as one of these relevant “facts and

circumstances.” The consent instruction is somewhat unusual

in that it effectively forbids the jury from considering certain

evidence, rather than merely telling the jury which elements it

must find and how to weigh the evidence. Given this feature,

and in light of the unique circumstances that developed at

closing argument, the jury could readily have perceived the

consent instruction as limiting any instructions on state of

mind. The additional instruction therefore would not have

cured the jury’s potential misunderstanding. Even had it been

given to the jury, we would not be able to “say, with fair

assurance,” that “the judgment was not substantially swayed

by the error.” Fowler, 608 F.2d at 12 (quoting Kotteakos, 328

U.S. at 764-65).

IV

In his remaining challenges, Williams points to three

evidentiary errors and three instances of alleged misconduct

by the government. Williams argues that these errors inflamed

the jury and therefore require reversal of both convictions.

Because the government’s misstatement of law during closing

argument independently requires us to reverse Williams’s

murder conviction, however, we need consider only whether

any of these alleged errors separately warrant reversal of his

witness-tampering conviction. They do not.

The first evidentiary ruling Williams challenges does not

require reversal, because it was not error. The photograph that

the district court admitted of Johnson and his wife at an

amusement park was relevant as an objective indication of

32

Johnson’s height—an important fact in determining his size

relative to Williams’s—and the district court did not abuse its

discretion in holding that the photo’s probative value was not

substantially outweighed by the risk of prejudice.

Williams correctly argues, however, that testimony of

Johnson’s wife that she was pregnant when Johnson died was

irrelevant. The district court concluded as much after trial, but

denied Williams’s motion for a new trial, because the error

was harmless. We agree that the error was harmless as to

Williams’s tampering conviction. Our test for harmless error

“is clear[:] If (1) the case is not close, (2) the issue not central,

or (3) effective steps were taken to mitigate the effects of the

error, the error is harmless.” In re Sealed Case, 99 F.3d 1175,

1178 (D.C. Cir. 1996). Although the pregnancy testimony

might have enhanced the jury’s sympathy for Johnson as a

victim, such sympathy would have had minimal—if any—

influence on the tampering conviction because Johnson was

not a victim of that crime. The testimony therefore did not

touch upon a “central” issue. Id.

Moreover, the evidence supporting the tampering

conviction was not conflicting. Rather, Sims testified,

unrebutted, that Williams threatened him. The case was

therefore “not close” on this charge. Id. Further, the jury

carefully parsed the witness-tampering charges. As to one of

the tampering counts, the jury found that Williams threatened

Sims but not three other gang members he was charged with

threatening at the same time. And the jury acquitted Williams

of the other tampering count altogether. Thus, we are

confident that the jury was not “swayed by emotional

appeals” when it evaluated the tampering charges. United

States v. Bass, 535 F.2d 110, 117 (D.C. Cir. 1976).

33

For the same reasons, the admission of the testimony of

gang expert Robert Stasch was at most harmless error with

respect to Williams’s tampering conviction. Stasch, a

lieutenant in the Chicago Police Department, testified about

the background, history, and symbols of the American gang

the Gangster Disciples. He also identified some of Williams’s

tattoos as common among members of the Gangster

Disciples. Stasch further explained that the “Brothers of the

Struggle,” a name the Ramstein group often called itself,

originated as the “prison faction” of the Gangster Disciples

and “eventually transferred to the street.” Williams argues

that this testimony was irrelevant and unduly prejudicial. But

assuming that the admission of this testimony was error, it

was harmless; the tampering charge did not present a close

question, and the jury carefully assessed the charges, as

described above. However, evidence of a defendant’s gang

membership is “likely to provoke strong antipathy in a jury,”

United States v. Jernigan, 341 F.3d 1273, 1284-85 (11th Cir.

2003), and the harmlessness calculus would look different in a

closer case. 7

Williams further identifies three instances of alleged

prosecutorial misconduct that, in his view, prejudiced his trial.

He argues that the government inappropriately asked a

defense witness on cross examination whether she had read

anything about Johnson’s death in the Stars and Stripes

newspaper or seen it featured on the television show

7

Of course, as we have explained, Williams’s murder charge

presented just such a closer case. Because we are already reversing

Williams’s murder conviction, however, we need not—and

therefore do not—rule on whether Stasch’s testimony was properly

admitted to prove the murder charge.

34

Gangland. Even if this questioning was improperly designed

to encourage the jury to do outside research, it did not

prejudice Williams’s tampering conviction. The question was

fleeting, and the district court cured any potential for

prejudice by directing the jury to disregard it and reminding

the jury that outside research was forbidden.

Williams further contends that the government

improperly accused the defense of “blaming the victim” for

his death, and that the government inaccurately told the jury

that only one person before Johnson had fallen at a jump-in.

But these statements had little bearing on the tampering

charge, since they focused on the events surrounding

Johnson’s death. Moreover, the district court adequately cured

the first remark by instructing the government to clarify that it

was not implying that the defense believed Johnson was

responsible for his own death. And Williams’s counsel

highlighted the inaccuracy of the second statement by reading

a transcript of the relevant witness testimony to the jury.

These alleged instances of misconduct therefore do not

warrant reversal of the witness-tampering conviction.

V

We reverse Williams’s murder conviction and remand the

case for a new trial. We affirm his witness-tampering

conviction.

KAVANAUGH, Circuit Judge, concurring: I fully join the

excellent majority opinion. In response to the strongly

worded dissent, I am compelled to add a few comments about

my view of the case and, in particular, to underscore the

critical importance of accurate instructions to the jury on

mens rea requirements.

For me, the vote to reverse Williams’ murder conviction

is not a hard call. This case involves a gang’s initiation ritual

for bringing new members into the gang. In this instance, a

new gang member who underwent the initiation ritual

eventually died afterwards. The facts of the case fit the crime

of involuntary manslaughter to a T. But the Government

charged Williams with second-degree murder, a more serious

offense with much heavier punishment. The jury was

instructed on both manslaughter and murder, and a critical

issue for the jury to decide was whether Williams was guilty

of manslaughter or murder. To decide between the two

offenses, it was essential for the jury to understand the

difference between the two crimes.

On the facts here, the relevant difference between the two

crimes related to the defendant’s mens rea. The crime was

murder if the defendant was subjectively aware that his

conduct created an extreme risk of death or serious bodily

injury. The crime was manslaughter, however, if the

defendant was not subjectively aware that his conduct created

an extreme risk of death or serious bodily injury, even though

he should have been aware.

The key issue for the jury to understand in assessing

Williams’ mens rea and distinguishing manslaughter from

murder was the significance of the victim’s statements during

the gang initiation – namely, the victim’s repeated statements

during the initiation that he was okay and could continue.

During closing argument, the defense counsel correctly told

the jury what the law was: that in assessing Williams’ mens

2

rea, the jury could consider the statements that the victim had

made during the gang initiation. But the prosecutor, in her

rebuttal, said that the defense counsel was wrong about the

law. The prosecutor told the jury that it could not consider

the statements that the victim had made during the gang

initiation. This disagreement was central to the outcome of

the case. Considering the victim’s statements likely would

lead the jury to convict for manslaughter, not murder. But

excluding consideration of those statements likely would lead

the jury to convict for murder, not manslaughter.

Faced with this disagreement between the defense

counsel and the prosecutor over the key legal issue in the

case, the jury would naturally wonder: Who’s right about the

law?

The defense counsel’s statement during closing was the

correct statement of law. The prosecutor’s statement was an

incorrect statement of law. But unfortunately, the ultimate

instructions to the jury did not clear up the confusion or

definitively resolve the disagreement between the prosecutor

and defense. Indeed, if anything, the instructions tended to

suggest that the prosecutor’s incorrect view of the law was

correct.

I am firmly convinced that the jury did not have a correct

understanding of the law and, armed with that

misunderstanding, then proceeded to convict Williams of

second-degree murder rather than manslaughter. I am

unwilling to sweep that under the rug. Williams committed a

heinous crime. But as the District Court observed in a post-

trial hearing, this “was a close case between second degree

murder and manslaughter.” Mot. Hr’g Tr. 27:11-12 (June 3,

2011). And the difference between a manslaughter conviction

and a murder conviction in this case is very significant in

3

terms of prison time for Williams. He was sentenced to 22

years in prison for the murder. If he had been convicted of

involuntary manslaughter, the statutory maximum sentence

would have been 8 years in prison. See 18 U.S.C. § 1112(b).

In a criminal appeal where a mens rea-related jury

instruction issue may have made a difference to the

conviction and sentence, it is critically important to ensure

that the jury had a correct understanding of the relevant law.

See United States v. Burwell, 690 F.3d 500, 527 (D.C. Cir.

2012) (Kavanaugh, J., dissenting). That did not happen in this

case, in my view. For that reason, I vote to reverse the

murder conviction, and I fully join the majority opinion.

KAREN LECRAFT HENDERSON, Circuit Judge, concurring

in part and dissenting in part: My colleagues reverse Rico

Williams’s murder conviction because of eleven words the

prosecutor uttered in her rebuttal closing argument. In their

view, the prosecutor’s statement was legally incorrect and

Williams was substantially prejudiced because the district

court failed to cure the error and because the evidence was

close. I disagree with each component of that analysis. The

prosecutor misstated nothing. The district court’s charge was

correct and balanced. And the evidence of guilt was

powerful. Because Williams received a trial that was

error-free—and at all events fair—I would affirm his

second-degree murder conviction. 1

I. The Beating and the Aftermath

On the night of July 3, 2005, in a brick-floored hut in

Hohenecken, Germany, gang leader Williams and his fellow

gang members beat Army Sergeant Juwan “Jay” Johnson to

death during a gang-initiation ritual. Williams, at 6’2” or

6’3”, began the so-called “jump-in” with a punch directly to

Johnson’s face. Johnson, at 5’2” or 5’3”, hit the floor. He

got back up. Williams hit him in the face again. The other

eight gang members then joined the fray, pummeling Johnson.

During the course of more than six minutes of a nine-man

beating, Johnson fell to the ground, curling up into the fetal

position. Williams then led the group in what one witness

described at trial as “stomp[ing] on” Johnson. Trial Tr. 30

(Oct. 25, 2010).

1

I join Parts I and II of the majority opinion in full. I join Part

IV insofar as it upholds Williams’s witness-tampering conviction.

Because my colleagues reverse the murder conviction based on the

prosecutor’s alleged misstatement of law, they do not decide whether

Williams’s other claims of prosecutorial misconduct or his challenge

to certain evidentiary rulings would also warrant reversal of the

murder conviction. I would reject those claims across the board.

2

Johnson emerged from the ordeal alive but was walking as

if intoxicated. He slurred his speech. He had soiled himself.

It took four men to carry him up the stairs to his barracks.

Once there, Johnson, with assistance, eventually took a shower

and spoke with his wife on the telephone. He then asked to be

taken to the hospital. Florentino Charris, the gang member

Williams assigned to watch Johnson, spoke with another gang

member who relayed Johnson’s request to Williams.

Williams directed that Johnson not be taken to the hospital.

Charris eventually fell asleep. When he awoke a couple of

hours later, Johnson was dead.

The day after the beating, July 4, Williams concocted a

cover story and disseminated it among his fellow gang

members. He took the gang’s stash of cash—about $600 in

“dues” that had been collected from the gang

members—explaining to the gang treasurer that “if anybody

was going to come for anybody first, they were going to come

for him, and he needed [the money] to get out of the country.”

Trial Tr. 44 (Oct. 29, 2010). On July 6, Williams caught a

flight out of Germany back to the United States. He remained

at large until his arrest nearly four years later. After a

three-week trial, a jury convicted Williams of second-degree

murder for his role in Johnson’s death.

II. The Standard of Review

As the majority tells it, reversal is necessary to undo a

prosecutorial misstatement about “consent,” Maj. Op. 20-24,

which the district court failed to correct, Maj. Op. 27-28.

Williams frames the issue differently, claiming that “the

district court improperly foreclosed [his] closing argument and

improperly denied [his] requested language on consent.”

Appellant’s Br. 62 (capitalization altered). I highlight the

distinction at the threshold because the law governing alleged

3

prosecutorial misconduct is different from the law governing a

challenge to the jury charge.

The test for misconduct recognizes that “a prosecutor’s

statements in closing argument will rarely warrant a new trial”

if he misstates the evidence. United States v. Watson, 171

F.3d 695, 699 (D.C. Cir. 1999). The same is true if the

prosecutor allegedly misstates the law because an advocate’s

declarations—“usually billed in advance to the jury as matters

of argument”—“are not to be judged as having the same force

as an instruction from the court.” Boyde v. California, 494

U.S. 370, 384-85 (1990); see United States v. Venable, 269

F.3d 1086, 1091 (D.C. Cir. 2001) (prosecutorial misstatement

of law can be “mitigated” by correct jury instructions,

especially if court instructs “that it [is] the court’s

responsibility to apprise the jury as to the law, and that the

lawyers’ statements [are] merely argument”). Ultimately, the

inquiry turns on whether a misstatement occurred and caused

“substantial prejudice” to the defense. United States v.

Straker, 800 F.3d 570, 628 (D.C. Cir. 2015) (per curiam).

By contrast, when the jury charge is challenged, we

consider “whether, taken as a whole, [the instructions]

accurately state the governing law and provide the jury with

sufficient understanding of the issues and applicable

standards.” United States v. Wilson, 605 F.3d 985, 1018 (D.C.

Cir. 2010) (per curiam) (internal quotations omitted)

(alteration in original); see Joy v. Bell Helicopter Textron, Inc.,

999 F.2d 549, 556 (D.C. Cir. 1993) (we review de novo “[a]n

alleged failure to submit a proper jury instruction”).

III. The Prosecutor Did Not Misstate the Law

Whether the alleged error sounds in misconduct or

instructional error or both, it cannot support reversal in light of

the district court’s correct and careful charge. See infra Point

4

IV.A. For starters, however, I cannot discern a prosecutorial

misstatement.

A. The Context of the Statement

As the majority notes, “‘[c]ontext is key,’” Maj. Op. 24

(quoting Venable, 269 F.3d at 1090), and so it is worth

recounting the procedural backdrop against which the

prosecutor spoke.

Before trial, the parties jointly proposed a jury instruction

stating in part that “under no circumstance is consent a defense

to the crime of homicide.” Proposed Jury Instructions at 46,

Dkt. 96. That language is consistent with settled law. See,

e.g., Washington v. Glucksberg, 521 U.S. 702, 714 (1997)

(“the well-established common-law view” was “that the

consent of a homicide victim is wholly immaterial to the guilt

of the person who caused his death”) (quotation and alterations

omitted); Woods v. United States, 65 A.3d 667, 672 (D.C.

2013) (“[C]onsent is not a defense to a charge of assault with

significant bodily injury arising out of a street fight.”); Durr v.

State, 722 So. 2d 134, 135 (Miss. 1998) (victim’s consent was

no defense to manslaughter charge against defendant who

killed fellow inmate in gang-initiation beating); State v. Hiott,

987 P.2d 135, 136-37 (Wash. Ct. App. 1999) (“[C]onsent is not

a valid defense if the activity consented to is against public

policy. Thus, . . . a gang member cannot consent to an

initiation beating . . . .”) (citation omitted).

During the trial, the government itself elicited testimony

about Johnson’s “consenting behavior”—to use the majority’s

term, e.g., Maj. Op. 25—and it did not object, on relevance

grounds or otherwise, to the defense’s introduction of evidence

on the same point. At the charge conference, the defense

revisited the joint instruction that consent is not a defense.

Pointing out that “it’s pretty much undisputed that Sergeant

5

Johnson consented to the jump-in,” the defense argued that

Johnson’s consent “undermine[d]” Williams’s criminal intent.

Trial Tr. 56 (Nov. 5, 2010). The defense therefore urged the

district court to amend the joint instruction to say that “you

may consider . . . consent in determining whether the defendant

had the necessary malice aforethought to establish the crime of

second-degree murder.” Id. at 57. The court denied the

request because “intent and mens rea are adequately defined in

the substantive instructions” and, in any event, “to tell [the

jurors] that they can consider consent as it relates to intent or

mens rea is not a fair statement of the law.” Trial Tr. 24 (Nov.

8, 2010).

In closing argument, before the jury was charged, the

defense strayed from the district court’s ruling. It argued not

just that Johnson’s “saying . . . yes, yes, yes” during the

jump-in could “affect the state of mind of the person who

supposedly murdered him.” Trial Tr. 32 (Nov. 8, 2010).

That statement would have been unobjectionable if tied solely

to Williams’s appreciation of Johnson’s condition at that point.

But the defense also argued, incorrectly, that Johnson’s

“consent” could negate Williams’s criminal intent:

[T]he Judge is going to tell you that consent is

not a defense, and we understand that, but it

[i.e., consent] has to factor in . . . to whether Mr.

Williams, [as] the government claims, intended

to kill Sergeant Johnson and intended to

seriously injure Sergeant Johnson, and had a

reckless disregard for his life or serious injury.

Id. (emphases added). In rebuttal, the prosecutor responded

as follows:

[Defense counsel] gave you some incorrect law

because the judge is the one—he’s the

6

final—he is the expert on the law, the judge.

And you can’t take—Sergeant Johnson went in

there thinking that he was going to become a

member of a brotherhood. He did not go in

there willingly to get killed because consent is

never ever a defense to murder. It is no

defense to second degree murder or involuntary

manslaughter, and, you know what, the judge is

going to tell you—[defense counsel] told you to

consider it; don’t even consider it because you

can’t consider it. It is not a defense.

...

[U]nder no circumstances is consent a defense

to the crime of homicide. So remember that.

You can’t even consider it in his intent or

anything else. You just cannot.

Id. at 100-01 (emphasis added).

B. The Prosecutor Was Right that Johnson’s

Consent Was Irrelevant

My colleagues conclude that the comment italicized above

misstated the law and “suggested to the jury that it could not

consider [Johnson’s] behavior”—namely, his “‘yeses’” during

the jump-in—“for any purpose.” Maj. Op. 24. I disagree.

The prosecutor did not tell the jurors that they could not

consider Johnson’s “behavior” or his “yeses.” She said they

could not consider his consent. As the majority appears to

acknowledge, Maj. Op. 29, those are two different things.

Consent is an individual’s subjective willingness, sometimes

manifested by behavior or words, that some act or event occur.

See, e.g., Williams v. Walker-Thomas Furniture Co., 350 F.2d

445, 449 (D.C. Cir. 1965) (distinguishing, in contractual

7

context, between subjective consent and “an objective

manifestation of” it); RESTATEMENT (SECOND) OF TORTS

§ 892(1) (1979) (“Consent is willingness in fact for conduct to

occur. It may be manifested by action or inaction and need

not be communicated to the actor.”). If in fact consent were

necessarily synonymous with behavior or words, it would be

difficult to reconcile with the incapacity doctrine, under which

the law presumes that children, intoxicated persons and the

insane are deemed incapable of consent even if they “profess[]”

it. DAN B. DOBBS ET AL., THE LAW OF TORTS § 109 (2d ed.

June 2016) (“professed consent” does not “bar [a tort] claim if

the plaintiff lacked capacity to give consent”).

Given the distinction between subjective consent and

physical or verbal manifestations of it, the prosecutor’s rebuttal

argument was correct. Whether Williams had the mens rea

for second-degree murder turned on whether he acted

“recklessly, in conscious disregard of an extreme risk of death

or serious bodily injury to” Johnson. Trial Tr. 39 (Nov. 9,

2010) (jury instructions). Johnson’s consent—his state of

mind—had nothing to do with Williams’s perception of risk.

Cf. United States v. Mi Sun Cho, 713 F.3d 716, 721-22 (2d Cir.

2013) (per curiam) (in sex-trafficking case, victim’s

“subjective willingness to travel” was wholly “immaterial to

the charges” because it went “to the irrelevant issue of her

consent”); People v. Mangiaracina, 424 N.E.2d 860, 863 (Ill.

App. Ct. 1981) (“[W]hether the [rape] victim did, in fact,

consent . . . involves her mental state, not the defendant’s.”).

The counterfactual the majority posits, Maj. Op. 23, only

illustrates the point. If Johnson had said “no” or “stop,” that

would indeed be relevant evidence. But the reason it would

be relevant has nothing to do with consent. See Glucksberg,

521 U.S. at 714. Instead, the reason words like “no” or “stop”

would be relevant is that they would tend to show that Johnson

sensed danger and communicated that to Williams, who would

8

then either (1) cease because of an extreme risk of death or

serious bodily injury to Johnson or (2) continue beating

Johnson in conscious disregard of that risk.

Consider a hypothetical that even more plainly

demonstrates why consent, qua consent, had nothing to do with

Williams’s state of mind. Suppose a gang recruit said during

a jump-in: “I can’t breathe. I feel dizzy. But I still want in.

Just get it done.” The last two statements would manifest

consent but they would be irrelevant to the attacker’s intent,

especially in light of the statements “I can’t breathe” and “I feel

dizzy.” That is because words of consent are relevant only if

they tend to show that the attacker did not know that the victim

was in danger. And statements like “I can’t breathe” and “I

feel dizzy” would show beyond doubt that the victim was

indeed in danger.

As the majority recounts, Maj. Op. 3-4, Johnson said

“‘Hell yeah,’” or words to that effect, when asked whether he

wanted the jump-in to continue. I do not dispute, as a matter

of relevance, that “Johnson’s repeated insistence that he

wanted the jump-in to continue might have signaled to

Williams that Johnson was in no serious danger.” 2 Maj. Op.

23. Crucially, however, the prosecutor never said otherwise.

Instead, she told the jurors that Johnson’s “consent” was

irrelevant. That was an accurate statement of law. If

Johnson had cried out “Kill me,” would it be proper for any

defense counsel to argue, or any judge to instruct, that the jury

could consider that as exculpatory evidence? Of course not.

The problem in this case has been the defense’s

insistence—during its closing argument and now on

2

In view of all of the evidence, however, I do not agree that

Johnson’s apparent bravado was as exculpatory as my colleagues

hold. See infra Point IV.B.

9

appeal—on using “consent” to describe Johnson’s physical

condition as communicated by Johnson’s words. And the

prosecutor’s reference to “consent” in rebuttal was an

understandable effort to correct the defense’s misuse of the

word.

In any event, and contrary to the majority’s recounting, the

prosecutor did not say that the jury “could not consider

[Johnson’s] behavior for any purpose.” Maj. Op. 24

(emphasis added). Nor would a reasonable jury have

understood her to make such an argument in light of the

government’s having first elicited testimony about Johnson’s

behavior during the jump-in and not objecting when the

defense presented similar evidence.

IV. Williams Suffered No Prejudice

Nevertheless, the majority worries that the prosecutor

misled the jurors into categorically disregarding Johnson’s

purported “consenting behavior,” Maj. Op. 25, so that they

convicted Williams of second-degree murder when they might

otherwise have convicted him of manslaughter, Maj. Op.

25-28. I would not share its concern even if I thought the

prosecutor had misspoken. The district court thoroughly

apprised the jurors of the relevant law. Moreover, when

measuring the strong mens rea evidence under that error-free

jury charge, I am confident that a reasonable jury would have

convicted Williams of second-degree murder had the

prosecutor said nothing about the relevance vel non of

Johnson’s purported consent. Accordingly, “when all is said

and done,” any prosecutorial misstatement either “did not

influence the jury, or had but very slight effect.” Kotteakos v.

United States, 328 U.S. 750, 764 (1946).

10

A. The Jury Charge Cured Any Misstatement

After the prosecutor’s alleged misstatement, the defense

objected at sidebar. Trial Tr. 124 (Nov. 8, 2010). It later

proposed a curative instruction that would have said in part:

[U]nder the law, you may consider Juwan

Johnson’s consent to the initiation, among all

the other evidence I have admitted, in

determining whether the government has

proven Mr. Williams’ intent to commit the

crimes of second degree murder or involuntary

manslaughter beyond a reasonable doubt.

Mr. Rico Williams’ Objection to Government’s Improper

Closing Argument and Motion for Curative Instruction at 4,

Dkt. No. 125 (emphasis added). The district court declined to

give the proposed instruction, see Trial Tr. 12-13 (Nov. 9,

2010), relying in part on its earlier ruling that “to tell [the

jurors] that they can consider consent as it relates to intent or

mens rea is not a fair statement of the law,” Trial Tr. 24 (Nov.

8, 2010). The court’s explanation bears lengthy reproduction:

Now, I then went on to say last week . . . why I

was not going to include [defense counsel’s]

proposed addition to the

consent-is-not-a-defense instruction. Because

his instruction, his proposed instruction or

proposed addition, essentially said: Well, it’s

not a defense, but consent is relevant to mens

rea or intent. And I said I wasn’t going to give

the instruction, and I said the reason I wasn’t

going to give the instruction was because

they’re two separate matters, and I’m already

discussing mens rea and intent in each of the

11

separate instructions on the underlying

offenses.

...

And I’m not going to give a curative instruction

because I think by giving a curative instruction,

it undermines my rulings. And I didn’t tell the

jury to strike and disregard [the defense’s]

argument [about Williams’s intent]; [the

prosecutor] is not the judge, and in her rebuttal

argument she made the point that that argument

was inconsistent with an instruction they are

going to hear.

But what I’m going to tell them this morning is,

without giving a curative instruction, without

highlighting what [the defense] said and

without highlighting what [the prosecutor] said

in their closing arguments, that they need to

consider all of the instructions together and not

take any one instruction out of context or

highlight it to the exclusion of others. I think

that’s part of the standard instructions.

Trial Tr. 12-13 (Nov. 9, 2010).

In short, the district court declined to give the defense’s

curative instruction because it was wrong, just as the defense’s

proposed addition to the consent instruction had been wrong.

For reasons I have explained, Johnson’s subjective consent

was not itself relevant to Williams’s state of mind. The

curative instruction would have said the opposite. The court

therefore correctly declined to give it. 1 KEVIN F. O’MALLEY

ET AL., FEDERAL JURY PRACTICE AND INSTRUCTIONS § 7:3, at

743-44 & nn.11-12 (6th ed. 2006) (“Requested instructions

12

must be accurate or the court is under no obligation to give

them.”) (citing cases).

Recognizing that the defense “might have been better

served to use a term such as ‘consenting behavior’ instead of

‘consent,’” Maj. Op. 29, my colleagues fault the district court

for failing to “rephrase[ ] the instruction to refer more directly

to Johnson’s statements and behavior,” Maj. Op. 30. The

court had no duty to fashion a suitable cure for a non-existent

ill. And it certainly did not have to focus the jury’s attention

on Johnson’s words in order to forestall prejudice from any

prosecutorial misstatement.

A district judge has wide discretion in how he phrases his

instructions, Joy, 999 F.2d at 556, and in how he remedies

perceived trial errors, United States v. Foster, 557 F.3d 650,

654-55 (D.C. Cir. 2009). He may comment on the evidence

but he must “use great care” not to “be one-sided” because “his

lightest word or intimation is received with deference, and may

prove controlling” in the jurors’ minds. Quercia v. United

States, 289 U.S. 466, 470 (1933) (internal quotations omitted).

Unsurprisingly, then, other courts of appeals have cautioned

against including factual commentary in jury instructions.

See, e.g., United States v. Bowen, 437 F.3d 1009, 1018 (10th

Cir. 2006) (“[T]he district court must exercise care when

including illustrative examples of [a criminal element] in an

instruction . . . .”); Hardin v. Ski Venture, Inc., 50 F.3d 1291,

1294 (4th Cir. 1995) (“A court is not required to comment on

specific evidence in the course of giving a jury instruction, and

indeed often is well-advised not to.”).

Here, the district court prudently declined to “highlight[ ]”

that Johnson’s words could have led Williams to believe that

Johnson wanted his beating to continue. Trial Tr. 13 (Nov. 9,

2010). If the court had singled out that evidence,

13

evenhandedness would have required recitation of evidence

favorable to the government, including that Williams led his

fellow gang members in stomping on Johnson and that he

denied Johnson’s request to be taken to the hospital. Starr v.

United States, 153 U.S. 614, 626 (1894) (agreeing with

Pennsylvania Supreme Court that judicial commentary on

evidence, “if stated at all,” should include both “that which

makes in favor of a party [and] that which makes against him”)

(internal quotation omitted); cf. Duke v. Uniroyal Inc., 928

F.2d 1413, 1421 (4th Cir. 1991) (“refusal to single out any

particular item of evidence” in jury instructions “is often a

sensible approach to evenhandedness in the presentation of the

law”).

In any event, the district court’s rejection of the defense’s

curative instruction “may not be judged in artificial isolation,

but must be considered in the context of the instructions as a

whole and the trial record.” Estelle v. McGuire, 502 U.S. 62,

72 (1991) (internal quotation omitted); see Henderson v.

Kibbe, 431 U.S. 145, 152 n.10 (1977). There is no cause for

reversal if the instruction the defense sought “was substantially

covered in the charge actually delivered to the jury.” United

States v. Udo, 795 F.3d 24, 29 (D.C. Cir. 2015) (internal

quotation omitted). That was the case here; several features of

the jury charge ensured that the prosecutor’s statement, even if

erroneous, did not prejudice Williams.

First, the district court told the jurors that “it’s your sworn

duty to base your verdict on the law that I give you in these

instructions and on the evidence that has been admitted in

trial.” Trial Tr. 21 (Nov. 9, 2010) (emphasis added). In the

same vein, the court instructed:

[B]oth lawyers made reference to portions of

these instructions yesterday during closing

14

arguments, and we may have even made some

minor wording changes since then, but I need to

tell you that it is your duty to accept the law as I

instruct you on the law, and you should

consider all of the instructions as a whole.

Id. (emphasis added). The jury is presumed to have adhered

to that directive. See Richardson v. Marsh, 481 U.S. 200, 211

(1987).

The majority concludes otherwise, theorizing that juries

generally give “particular weight” to prosecutorial statements

of law because they come “‘wrapped in the cloak of state

authority.’” Maj. Op. 25 (quoting Spivey v. Head, 207 F.3d

1263, 1275 (11th Cir. 2000)). Even assuming such a

phenomenon exists, it has no application here. The prosecutor

herself told the jury, immediately before commenting on the

law of consent, that “the judge is the one—he’s the final—he is

the expert on the law.” Trial Tr. 100 (Nov. 8, 2010). That

remark sent the jurors right back to the instructions, which did

not then lead them astray. See United States v. Hall, 610 F.3d

727, 743 (D.C. Cir. 2010) (district court’s charge cured

prosecutor’s misstatement of law, “particularly when the

erroneous argument was acknowledged by the prosecutor to be

subject to the court’s instructions”).

Second, the district court instructed the jurors to “[d]ecide

the case solely from a fair consideration of all of the evidence”

and that “you alone decide what weight, if any, to give to the

evidence that’s been admitted.” Trial Tr. 22 (Nov. 9, 2010);

see id. at 28 (court also told them “you should consider all of

the evidence presented, both direct and circumstantial”). As

discussed, “the evidence . . . admitted” included Johnson’s

words during the jump-in. Accordingly, a reasonable jury

would understand that it “should consider” Johnson’s words

15

and give them whatever weight it thought they warranted.

And a reasonable jury would have similarly understood from

the court’s decision to let stand the defense’s closing argument

that Johnson “kept saying the same thing over and over and

over and over, yes, I want this” that it should consider those

words. Trial Tr. 32 (Nov. 8, 2010); cf. Boyde, 494 U.S. at 383

(rejecting claim that court and prosecutor misstated what

mitigating evidence could be considered during capital

sentencing proceedings, in part because “the context of the

proceedings would have led reasonable jurors to believe that

[the] evidence [at issue] could be considered”).

Third, the district court explained in detail the mens rea

necessary to support a second-degree murder conviction.

Specifically, the court instructed:

To kill with malice aforethought means to kill

either deliberately and intentionally, or

recklessly, in conscious disregard of an extreme

risk of death or serious bodily injury to Juwan

Johnson. To find that the defendant acted with

malice aforethought, the government must

prove beyond a reasonable doubt that the

defendant acted with the specific intent to kill,

or that the defendant acted with a reckless and

wanton disregard for human life that was

extreme in nature, and was aware that his

conduct created an extreme risk of death or

serious bodily injury.

The fact that a reasonable person would have

been aware of the risk would not sustain a

finding of malice. To prove malice

aforethought, the government must show that

the defendant acted with callous and wanton

16

disregard of human life, and an extreme

indifference to the value of human life. Only a

finding of extreme recklessness regarding

homicidal risk will support an inference of

malice aforethought.

Trial Tr. 39-40 (Nov. 9, 2010).

No one disputes that the foregoing instruction was correct

as far as it went and Williams faces an especially steep climb in

claiming prejudice from its failure to go further. Henderson,

431 U.S. at 155 (“An omission, or an incomplete instruction, is

less likely to be prejudicial than a [court’s] misstatement of the

law.”). For reasons already explained, the judge would have

been unwise, at the least, to adorn the instruction with

fact-specific guidance about what evidence may have satisfied

or negated the intent element. See Quercia, 289 U.S. at 470;

Starr, 153 U.S. at 626; Bowen, 437 F.3d at 1018; Hardin, 50

F.3d at 1294; Duke, 928 F.2d at 1421; see also, e.g., United

States v. Grover, 485 F.2d 1039, 1041-44 (D.C. Cir. 1973)

(affirming district court’s refusal to instruct on which aspects

of defendant’s conduct would make him aggressor for purpose

of self-defense instruction). Additional clarification is always

possible. But the cited cases tell us that it is not always

necessary or even prudent.

Fourth, to accommodate the defense at least in part, the

district court modified the jointly-proposed consent instruction

by removing language to the effect that consent “should not be

considered.” See Trial Tr. 15-18 (Nov. 9, 2010). The court’s

final consent charge, to which both parties agreed, was as

follows:

Consent is not a defense to second degree

murder or involuntary manslaughter. Even if

you find that the victim consented to the initial

17

assault, you may not consider consent as a

defense. It is settled that a victim cannot

consent to an assault that is likely to result in

death or grievous bodily injury; further, under

no circumstances is consent a defense to the

crime of homicide.

Id. at 46. This instruction was plainly correct. See, e.g.,

Glucksberg, 521 U.S. at 714; Woods, 65 A.3d at 672; Durr,

722 So. 2d at 135; Hiott, 987 P.2d at 136-37; cf. Maj. Op. 28

n.5 (declining to decide whether instruction was correct).

Fifth, notwithstanding the defense’s failure to propose a

legally correct curative instruction, the district court offered

yet another accommodation: the model “Proof of State of

Mind” instruction from the Criminal Jury Instructions for the

District of Columbia (commonly known as the Redbook).

Trial Tr. 14 (Nov. 9, 2010). The instruction would have

emphasized that the jury could consider “all” of the objective

facts and circumstances in determining Williams’s mental

state, supplying much of the clarification Williams sought. 3

3

The model charge reads in full: “Someone’s [intent]

[knowledge] [insert other appropriate state of mind] ordinarily

cannot be proved directly, because there is no way of knowing what

a person is actually thinking, but you may infer the someone’s

[intent] [knowledge] [other appropriate state of mind] from the

surrounding circumstances. You may consider any statement made

or acts [done] [omitted] by [name of the defendant], and all other

facts and circumstances received in evidence which indicate his/her

[intent] [knowledge] [other appropriate state of mind]. [You may

infer, but are not required to infer, that a person intends the natural

and probable consequences of acts s/he intentionally did or did not

do.] It is entirely up to you, however, to decide what facts to find

from the evidence received during this trial. You should consider

all the circumstances in evidence that you think are relevant in

determining whether the government has proved beyond a

18

Id. By offering the instruction, the court accommodated the

defense as much as possible without erroneously injecting

“consent” into the mix.

Williams declined the instruction. Trial Tr. 15 (Nov. 9,

2010). Yet he now claims that “the district court refused to

give any additional instruction to the jury,” Appellant’s Reply

Br. 26, and that the instructions “took away from the jury’s

consideration the most crucial surrounding facts and

circumstances,” Appellant’s Br. 64. I see no reason to grant a

new trial to a defendant who could have averted any

conceivable error or prejudice if he had agreed to the court’s

proposal. Had the Redbook instruction been given, it would

have provided further clarification—if any were needed—that

nothing in the charge “forb[ade] the jury from considering”

Johnson’s words during the jump-in. 4 Maj. Op. 31 (emphasis

omitted).

reasonable doubt that [name of the defendant] acted with the

necessary state of mind.” Criminal Jury Instructions for the District

of Columbia, No. 3.101 (5th ed. 2009).

4

To repeat, the jury was told that “[e]ven if you find that the

victim consented to the initial assault, you may not consider consent

as a defense.” Trial Tr. 46 (Nov. 9, 2010) (emphasis added). By

its terms, then, the instruction did not “forbid[ ]” the jury from

considering Johnson’s words. Maj. Op. 31 (emphasis omitted).

Let me briefly reply to my concurring colleague, who

mistakenly emphasizes trial counsel’s role in explaining the law to

the jury, musing “Who’s right about the law?” Concur. Op. 2. The

answer is simple: It is the trial judge who is the sole lawgiver and, to

the extent he needed to clear up the “white noise” produced by

counsels’ differing legal arguments, he did so.

19

B. The Mens Rea Evidence Was Strong

Let me recap the analysis so far. Williams seeks reversal

because of a brief legal statement the prosecutor made during

nearly a full day of arguments, which arguments were followed

the next morning by extensive jury instructions. The district

court correctly instructed the jurors on mens rea, told them to

accept the court’s legal instructions and emphasized that they

should consider all of the evidence. The court also amended

the jointly-proposed consent instruction to accommodate the

defense’s concern about the prosecutor’s argument. Given

the charge as a whole, and even assuming the prosecutor

misstated the law, a curative instruction that separately detailed

less than all of the evidence relevant to mens rea would most

likely have been reversible error. Williams offered such a

curative instruction anyway. The court correctly rejected it

because it would have confused the jury by conflating

Johnson’s state of mind with Williams’s. Still, the court

offered an alternative that would have addressed the essence of

the defense’s concern. The defense declined the alternative.

I believe Williams would have suffered no prejudice from

any prosecutorial error had the issue of his mens rea been

close: the court’s charge cured all ills. See Boyde, 494 U.S. at

384 (“[A]rguments of counsel generally carry less weight with

a jury than do instructions from the court.”); Watson, 171 F.3d

at 702 (in assessing prejudice from prosecutorial

misstatements, “the ameliorative effects of jury instructions are

not to be underestimated”); see also Venable, 269 F.3d at

1091-92 (court’s correct burden-of-proof instruction mitigated

prosecutor’s misstatement of law on same issue, court telling

jurors “it was the court’s responsibility to apprise [them] as to

the law”). To complete the analysis, however, I emphasize

my view that “Williams’s awareness of the risk” to Johnson

20

was not—as the majority erroneously concludes, Maj. Op.

26-27—a “close” question.

The majority observes that no serious injuries had

occurred during earlier jump-ins. Maj. Op. 26. But this

jump-in was different in crucial ways that would have been

obvious to Williams. There were nine participants whereas

the usual complement had been four to six. Williams, the

ringleader and a prime participant, was about a foot taller than

Johnson. When Williams punched Johnson in the mouth at

the outset, “Johnson went straight down . . . to the ground.”

Trial Tr. 34 (Oct. 29, 2010). No one had ever fallen on the

first punch before. Williams hit Johnson in the face several

more times and Johnson went down repeatedly. When he got

up, “everybody” attacked him “like . . . piranhas.” Id.

Williams eventually “stomped on” him. Trial Tr. 30 (Oct. 25,

2010). That, too, was not “part of the rules” and had never

happened before. Id. The other gang members “[f]ollow[ed]

suit” in kicking Johnson, id., who “was curling up in a ball,” id.

at 31. When the kicking stopped, one participant lifted

Johnson to his feet and gang members held him up while

punching him. At least one witness “had never seen” that

either. Trial Tr. 35 (Oct. 29, 2010). Finally, the jump-in

lasted for some indeterminate period beyond the standard six

minutes because gang members, including Williams,

continued beating Johnson after “time” had repeatedly been

called. Trial Tr. 31 (Oct. 25, 2010); see Trial Tr. 143 (Oct. 29,

2010) (“[e]verybody who was not holding” Johnson up was

beating him, including Williams, “and no one stopped” when

“time” was called first two times).

The majority notes that “members repeatedly asked

Johnson if he wanted to continue with the initiation and

testified that they would have stopped if he said no.” Maj. Op.

26. But after Johnson’s attackers lifted him to his feet—at

21

which point “[h]e looked scared for his life,” Trial Tr. 46 (Oct.

26, 2010)—they stopped asking him if he wanted to continue,

Trial Tr. 47 (Oct. 29, 2010). And there is no

evidence—understandably—that Johnson, on his own, insisted

on continuing after that point.

The majority says “Johnson had no unmistakable outward

signs of major injuries after the jump-in.” Maj. Op. 26. But

he was bleeding from the mouth and walked away from the

scene “[l]ike a drunk person.” Trial Tr. 31-32 (Oct. 25, 2010).

Those could be signs of either minor or major physical trauma.

A gang leader who had delivered a severe beating with eight

other men for over six minutes would not—unless extremely

reckless—rule out major trauma. A reasonable jury could

easily infer that Williams intended a serious injury because that

is, after all, the natural and probable consequence of a serious

beating. See United States v. Mejia, 597 F.3d 1329, 1341

(D.C. Cir. 2010) (upholding jury instruction that “[y]ou may

infer but are not required to infer that a person intends the

natural and probable consequences of acts knowingly done or

knowingly omitted”) (internal quotation omitted); see also

supra note 3.

The majority points to testimony from a defense expert

that Johnson had an “underlying medical trait” that contributed

to or even “primar[ily] cause[d]” his death. Maj. Op. 26. But

the same expert—roundly rebutted by government experts in

any event—acknowledged that “the manner of Sergeant

Johnson’s death was . . . homicide” because “[t]he contributory

cause . . . was injury at the hands of others.” Trial Tr. 104

(Nov. 3, 2010).

The majority gives no weight to Williams’s depraved

refusal of Johnson’s request for medical attention. I think that

is spectacularly mistaken. It is true, as Williams notes, that

22

the “‘material issue is [his] state of mind at the time of the

homicide.’” Appellant’s Br. 63 (quoting United States v.

Johnson, 879 F.2d 331, 334 (8th Cir. 1989)) (emphasis in

Johnson). He cites no authority, however, that would exclude

from “the time of the homicide” the immediate aftermath of a

severe beating while the victim still clings to life.

The very definition of homicide is “[t]he killing of one

person by another,” BLACK’S LAW DICTIONARY 851 (10th ed.

2014), which means the crime is not complete unless and until

the victim dies, see Trial Tr. 38 (Nov. 9, 2010) (district court

instructed jurors that “[f]irst” element government had to prove

was “that the defendant unlawfully killed Juwan Johnson”).

And the available case law makes clear that a defendant’s

refusal of medical attention for a victim he has beaten is strong

evidence of murder, particularly if the defendant’s aim is to

conceal the beating. See, e.g., United States v. Sarracino, 340

F.3d 1148, 1162-64 (10th Cir. 2003) (violation of

Confrontation Clause was harmless beyond reasonable doubt

in second-degree murder prosecution where evidence

“overwhelmingly” showed defendants had badly beaten

victim, “knew that the victim was severely hurt” and

nevertheless “decided to remove the victim from the scene in

hopes of avoiding detection of the crime”); 5 cf. United States

5

In Sarracino, the district court instructed the jurors in part:

“You also are permitted to find malice aforethought . . . if you find

that a person, while aware of a serious risk of death, failed to act after

having put another human being in a position of danger and creating

for himself a duty to rescue or to safeguard that other human being.”

340 F.3d at 1162 (internal quotation omitted). In closing, the

government argued that the defendants had “created for themselves a

duty to save” the victim but “le[ft] him to his own devices to die,”

which proved malice. Id. at 1163 (internal quotation omitted).

The Tenth Circuit quoted with approval both the instruction and the

closing argument, finding them “important” to its conclusion that the

23

v. Conatser, 514 F.3d 508, 522-24 (6th Cir. 2008) (affirming

district court’s conclusion, at sentencing, that defendant’s

failure to request medical attention for prisoner he had beaten

constituted malice); United States v. McDougle, 82 F. App’x

153, 157-58 (6th Cir. 2003) (unpublished) (affirming district

court’s conclusion, at sentencing, that defendants’ “efforts at

covering up [victim’s] injuries” from their earlier beating

constituted malice when cover-up prevented victim from

getting proper medical attention).

Here, the continuum of depravity began with the beating

and extended through Williams’s refusal of Johnson’s request

for medical attention. After the jump-in, someone asked

Williams: “[W]hat if he has to go to the hospital[?]” Trial Tr.

93 (Oct. 29, 2010). Williams initially responded that “if he

has to go to the hospital, tell them he got jumped downtown.”

Id. But he assigned a gang member, Charris, to stay with

Johnson and “watch” him. Trial Tr. 59 (Oct. 26, 2010). That

was not altruism. When Johnson first said “that he wanted to

go to the hospital,” Charris “told him that . . . I couldn’t take

him because there was no way for me to tell them how he got

the bruises on him.” Id. at 63. In a fateful phone call about

20 minutes later, Williams directed that Johnson not be taken

to the hospital. Viewing the evidence as a whole, I believe it

shows in stark relief that the reason Williams assigned Charris

to watch Johnson was to ensure that Johnson would not seek

care on his own and thereby reveal the beating to outsiders.

That is malice on stilts.

Confrontation Clause violation was harmless. Id. at 1162-63.

Similarly, the prosecutor here argued in closing that Williams’s

refusal of Johnson’s request for medical attention was a “betrayal”

that led to Johnson’s death. Trial Tr. 38 (Nov. 8, 2010). Just so.

24

The prejudice inquiry, I recognize, “is ‘not a mere

sufficiency-of-the-evidence inquiry.’” Maj. Op. 26 (quoting

United States v. Smart, 98 F.3d 1379, 1391 (D.C. Cir. 1996)).

But neither does it demand overwhelming evidence in order to

affirm, at least where the jury charge is correct and as thorough

as the one here. Cf. Brecht v. Abrahamson, 507 U.S. 619, 639

(1993) (prosecutorial error was harmless under Kotteakos

standard where “evidence of guilt was, if not overwhelming,

certainly weighty”). The evidence was unquestionably strong

enough (and, I believe, overwhelmingly so) to reject

Williams’s prejudice claim.

*****

In my view, the prosecutor did not misstate the law. And

even if she did, I am confident that any “error did not influence

the jury, or had but very slight effect” in view of both the

compelling evidence of malice and especially the jury charge,

which was correct and measured in every particular.

Kotteakos, 328 U.S. at 764. The mischief the majority’s

holding is likely to cause is neither theoretical nor slight. My

colleagues have found reversible error in an experienced and

evenhanded trial judge’s refusal to single out specific—and

irrelevant—evidence in instructing the jury in a homicide

prosecution. Caveat the trial bench.

Accordingly, I respectfully dissent from the reversal of

Williams’s second-degree murder conviction, a conviction

well warranted for his role in Johnson’s brutal beating and

death.