# Michael D. Tann v. United States

> District of Columbia Court of Appeals · November 19, 2015 · 127 A.3d 400

URL: https://www.frixlaw.com/law-library/cases/9820201

## Case

- **Full name:** Michael D. TANN, Lannell Cooper, Antonio Arnette, James Rushing, Saquawn Harris, and Dajuan D. Beaver, Appellants, v. UNITED STATES, Appellee
- **Court:** District of Columbia Court of Appeals
- **Decided:** November 19, 2015
- **Citations:** 127 A.3d 400; 2015 D.C. App. LEXIS 533
- **Precedential status:** Published
- **Opinion:** Opinion of the court
- **Judges:** Glickman, Blackburne-Rigsby, Thompson
- **Cited by:** 34 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9820201

## How later opinions describe it (automated extraction)

- holding that it was “crucial . . . that the trial judge actually observed Tann’s outburst and viewed its effect (or lack thereof) on the jury when determining the correct course of action”
- holding that it was “crucial ... that the trial judge actually observed Tann’s outburst and viewed its effect (or lack thereof) on the jury when determining the correct course of action”
- explaining that rap lyrics that are "autobiographical" in nature do not carry an "undue risk of the statements being misunderstood or misused as criminal propensity or bad act evidence" (internal quotation marks and citation omitted)

## Opinion text

PER CURIAM:
After a nine-month jury trial, the six appellants in this case were convicted of conspiracy and a string of violent crimes, including homicides, that were committed in connection with their membership in a gang known as the 22nd Street Crew. They raise numerous challenges to their convictions in these consolidated appeals. With a few exceptions, however, we affirm the judgments of the Superior Court.
In view of the length of this opinion, before commencing our discussion of the proceedings below and appellants’ claims, we set forth the following table of contents as an aid to the reader.
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The government presented evidence at appellants’ trial showing that there was a criminal street gang operating in the area of 22nd Street, Southeast, Washington, D.C. The investigation of this gang revealed a violent, drug-trafficking organization functioning in the blocks of 22nd Street that sat between Southern Avenue and Savannah Street, and influencing areas around the gang’s base of operations. The goals of the organization were centered on the purchase, storage, packaging, and resale for profit, of illegal drugs within the community.
*419 Members of the gang committed numerous criminal acts in an effort to protect the territory of the gang and integrity of its operations. This misconduct took the form of acts of violence designed to safeguard the organization. Often, the violence was directed at perceived rivals who might threaten the gang’s territory and drug trade or witnesses who might undermine its operations through cooperation with law enforcement.
The gang was called various names, including the “22nd Street Crew,” “The Deuce,” “Deuce-Deuce,” “Shipley Market,” “Young Gunz,” and “Deuce Squad Mafia.” For simplicity, it will be referred to in this opinion as the “22nd Street Crew.” The 22nd Street Crew had a loose rank structure wherein members would play different roles according to the level of authority and respect they had gained over time through demonstrations of loyalty to the gang. Members that had achieved a sufficient level of respect would be referred to as “OGs” or “original gangsters.” More junior members were labeled “baby gangsters” or “little Iocs.”
The government’s evidence tended to demonstrate the involvement of all six appellants in the 22nd Street Crew. Lannell Cooper had been part of the 22nd Street Crew since the 1990s and achieved an unmatched level of authority within the gang. Michael Tann was part of the gang for a similar period and. was close behind Cooper in the hierarchy. James Rushing, Da-juan Beaver, and Antonio Arnette carried less weight in the organization; however, evidence was presented showing their long-standing involvement in the 22nd Street Crew and its operation, Saquawn Harris was a newer member, having been introduced by another high-ranking gang member.
The indictment in this case charged the six appellants with conspiracy and with committing serious acts of violence as part of their participation in the 22nd Street Crew. Specifically, .the indictment articulated that each appellant entered into a conspiracy to “knowingly and willfully .... agree together to obstruct justice and to assault and kill anyone whose interests were contrary to those of [appellants] and their associates.” In a nine-month joint trial of appellants from November 2008 to July 2009, the government endeavored also to show that four murders were committed, as part of the charged conspiracy, at or near 22nd Street between 2003 and 2006. The government contended that these murders were directed toward maintaining the turf and authority of the 22nd Street Crew, either, by eliminating perceived rivals or killing government witnesses. Each appellant was involved in at least one of these murders; appellant Tann was alleged to have played a role in three of the four. The essential facts of each major incident are briefly recited here.
I. The Leslie Jones Murder
Leslie Jones was a .drug dealer who sold his product near 22nd Street, specifically in the Shipley Market area. He had a long-running feud with Tann that revolved around competition for drug sales and a prior incident in which one of his relatives assaulted Tann and had stolen his weapon.
On the evening of April 11, 2003, Tann attended a small party with his future wife Tracey at his cousin’s house in Southeast, Washington, D.C. At some point during the evening, Tann told Tracey that he was going to 22nd Street, and left the party. Tann, found Leslie Jones at a pay phone near Shipley Market and shot him from behind. 22nd Street Crew member Al-phonce Little was an eyewitness to the murder. Another witness, Tyrone Curry, heard the gunfire and saw Tann running *420 away from the scene of the crimé. Tánn later confessed to Tracey, and another 22nd Street Crew member named Donald Matthews, that he had committed the murder.
II. The Terrence Jones Murder and Richard Queen Assault
The murder of Terrence Jones on April 17, 2004, began'with an argument on 22nd Street between gang member Donald Matthews and a 22nd Street resident, Kyara Johnson, apparently about the type of liquor that was to be served at Kyara’s birthday party. The verbal quarrel threatened to become violent before it was broken up by Kyara’s sister, Shaunta Armstrong. Shaunta called her close friend Terrence Jones and asked him to come to 22nd Street to make sure that the situation was under control. Terrence Jones went to 22nd Street with his friend, Richard Queen. Terrence Jones approached Matthews and had a brief conversation with him. Matthews explained that he “just had an argument [with Kyara] but it wasn’t nothing.” Witnesses reported that their interaction ended peacefully and without incident.
According to Kyara Johnson, appellant Arnette learned of the exchange between Donald Matthews and Terrence Jones and yelled, “Doe” [referring to appellant Cooper] Kyara heard Cooper respond, ‘Where at?” Shaunta Armstrong then heard someone (believed to be Cooper) ask, “Squirt [appellant Arnette’s nickname], who’s faking?” Arnette nodded in the direction of Terrence Jones and Richard Queen and told Cooper to go up the street with his “hammer,” which was the street name for a gun. Cooper approached Terrence Jones and pointed a gun at him while Arnette hit- Terrence Jones with his hands. Then, according to several witnesses, Cooper said words to the effect of “Pat them niggers’ pockets.” Arnette proceeded to pat Terrence Jones’s pockets and hit him in the face. Witnesses stated that at some point Terrence Jones resisted by hitting Cooper, and Cooper shot him in response. When Terrence Jones tried to crawl away, Cooper shot him again.
Witnesses further testified that at approximately the same time as Terrence Jones was under attack, appellant Tann and other unidentified males appeared, pinned Richard Queen against a car, and began beating him and going through his pockets. According to' Donald Matthews, Tann picked up a gun off the ground in the midst of the fight with Queen and shot him in the back as he tried to run away, wounding Queen but not badly enough to prevent his escape. Several days later, Tann told Matthews that he had shot Queen. At trial, Queen testified that his assailants had stolen cash and cigars that he was carrying that night.
III. The James Taylor Murder and Bernard Mackey Assault
A third murder occurred on 22nd Street a little over two years later,- in the early evening of May 4, 2006. Again, the events were precipitated by an argument. This time it was a disagreement between Omar Harrison and Ashley Tyndle during which Harrison may have struck Tyndle. Harrison was an outsider to 22nd Street, and Tyndle was the girlfriend of gang member Alphonce Little.
As the dispute climaxed,' Harrison made reference to his lack of fear of Little by telling Tyndle to “go get your baby[’s] father” or words to that effect. At the time of the argument between Harrison and Tyndle, various members of the 22nd Street Crew were dispersed in different places on 22nd Street; one witness testified that one “little crew,” including appellants Tann and Harris, as well as Little *421 and several other gang members, was gathered near a basketball court. When word of the Harrison-Tyndle dispute, and Harrison’s challenge to Little, spread byword of mouth to- the gang, Little, Harris, Tann, and other gang members raced toward Harrison from different directions on 22nd Street.
Then, multiple witnesses saw. Harris and Tann open fire at Omar Harrison. Seven witnesses testified that they saw Harris shooting. Four witnesses saw Tann shooting. One witness testified that between five and ten gang members were shooting en masse with Tann and Harris although this testimony was conflicting. Two witnesses testified to seeing gang member Antonio Blaylock with a gun drawn during the incident. According to another witness, “a lot of people” in addition to Tann and Harris were shooting.
Alphonce Little, who denied firing a weapon, stated that immediately after the first waves of gunfire ended, he heard- a separate set of gunshots coming from another location “across the street.” These shots were fired by Robert Foreman, who Little testified was a very junior member of the 22nd Street Crew. Foreman saw and heard Tann and Harris firing at Harrison, felt compelled to join in the attack, and started shooting as well.
Once the firing started,- Omar Harrison jumped into his truck and drove away safely. However, James Taylor, a 22nd Street resident who had been standing near Harrison’s truck, was hit by a bullet in the head and died. Bernard Mackey, another innocent bystander, was also standing nearby and was grazed by a bullet in the back.
Alphonce Little ran with appellant Harris to the house of Harris’s girlfriend and watched him pack his bags in preparation to go into hiding. Robert Foreman found Harris and Little at Harris’s girlfriend’s house. Little testified that Foreman told Harris and Little that he believed he had fired the -shot that killed James Taylor. There was no evidence to show that either Harris or Tann, although aware of each otherls role in the shooting and the presence of other gang members during the event, knew of Foreman’s involvement in the murder. Following the incident, Harris fled the area and lived in disguise for several weeks until his arrest:
IV. The Laquanda Johnson Murder and Keisha Frost Assault .
Notábly for purposes of this appeal, appellant Cooper was tried for and convicted of the-murder of Terrence Jones in 2006. At the time of the instant 2008-2009 trial of the appellants in this case, Cooper was serving a lengthy prison sentence for that crime. At Cooper’s 2006 trial, the government listed Kyara Johnson and her older sister, Laquanda Johnson, as potential' witnesses. 'Kyara testified about Cooper’s shooting of Terrence Jones following her argument with Matthews. Laquanda was not an eyewitness to the Terrence Jones murder; however, Cooper had made several incriminating statements to her in the aftermath of that incident. . -Ultimately, Laquanda did .not testify at the 2006 trial, but she could be seen at the courthouse during the trial supporting her sister. - La-quanda was protective of’ her younger sister and was known by reputation to be a “gatekeeper” .for those seeking access to Kyara.
’ Cooper was convicted at the end of June 2006. Approximately two weeks later, in the early morning of July 11, 2006, the sisters (who had been relocated from 22nd Street because of Cooper’s trial) returned to 22nd Street to visit friends. Appellant Beaver saw the sisters and told Alphonce Little that they were back. Little investigated their, presence and -confirmed that *422 the sisters were hanging out at a 22nd Street house with Keisha Frost, Laquanda Johnson’s Mend. Beaver and Little met with Dwayne Wright, another 22nd Street Grew member. The three men discussed the sisters and agreed that they- “got to go” — meaning that they should be killed— because of their cooperation-with the government. Beaver and Little further discussed which one of- them was going to do the killing. Beaver, arguing that he had already done his duty to the gang by testifying in Cooper’s defense at his 2006 trial, persuaded Little that he had an obligation to eliminate the Johnson sisters. Wright retrieved a gun for Little, and Beaver gave Little a pair of sunglasses as a. partial disguise. Preparations were . completed when Little secured a “hoodie” from Robert .Foreman, and an escape route from appellant Rushing, who. agreed to drive Little and Beaver away from, the scene of the anticipated shooting.
Alphonce Little walked up to the house where he had seen the Johnson sisters. Kyara Johnson was inside, but Laquanda was on the porch with Keisha Frost. Little opened fire and shot both women, be-hoving that Keisha was Kyara. Laquanda died, but Keisha lived. Kyara, looking out of an upstairs window, witnessed the shooting. Little -ran away from the scene toward 23rd Street and Southern Avenue. Rushing collected Little and Beaver in his car and instructed Little to get rid of the .hoodie. Beaver directed the gang members to his mother’s house in Maryland where he hid the gun that Dwayne Wright had given Little to commit the murder.
Y. Obstruction of Justice — Witness Intimidation and Manipulation
In the aftermath of these incidents, several appellants, and other gang members, approached witnesses in efforts to .prevent their cooperation with law enforcement. Karen Bolling, the mother of Laquanda and Kyara Johnson, testified that while appellant Cooper was.still on the street, he approached Laquanda and offered her drugs and money if she would keep Kyara off the stand during his 2006 trial for the murder of Terrence'Jones;
After his arrest, Cooper sent out overtures from prison to' numerous individuals in an effort to have them- persuade (by force if necessary) the Johnson sisters and others not to testify against-him. Cooper reached out to members of an allied street gang on 17th Street, including Brian Gilliam and Tyrel Hargraves, to have them search 22nd Street for Kyara. Gang member Travis Honesty and gang ally Dewey Chappell also testified that Cooper, from jail, instructed them and others (including appellants Tann, Beaver, Harris, Rushing, and gang member Alphonce Little) to find the sisters at various points. Karen Boll-ing also testified that-after Cooper was arrested, Laquanda implored her not to let Kyara testify against Cooper, explaining that Tann had “talked to [Cooper]” and that “[Cooper] wanted to know was [La-quanda] going to help him by not letting her sister testify.”
Tann approached other witnesses after the James Taylor-Bernard Mackey incident. He threatened Zartia Anderson, the sister of witnesses to'the James Taylor murder, and stated that he was going to “straighten things out” regarding-their cooperation with the government. Tann also confronted Donnise Harris, another James Taylor murder witness, and urged her to testify falsely that appellant Harris (no relation to Donnise Harris) had not been involved in the incident.
VI. Procedural Developments
A grand jury investigating these criminal activities in the area of 22nd Street handed down its original indictment in *423 September 2007. A second grand jury followed with a superseding indictment in February 2008. The superseding indictment charged appellants with conspiring “to obstruct justice and to assault and kill anyone whose interests were contrary to those of [appellants] and their associates,” and numerous crimes related to that overall conspiracy, inclúding involvement in the four murders described above.' The jury returned general verdicts against all six appellants, finding each guilty of conspiracy. 1 In addition, each appellant' was c'on-victéd on multiple other counts, as follows:
Tanri was convicted of first-degree premeditated murder while armed 2 of both Leslie Jones and James Taylor, second-degree murder while armed' 3 of Terrence Jones, armed robbery 4 and assault with intent to kill while armed 5 (“AWIKWA”) of Richard Queen, AWIKWA of Bernard Mackey; two counts of obstruction of justice, 6 one count- of threatening a person, 7 and a host of weapons offenses 8 related to these underlying crimes. Harris was convicted of first-degree premeditated murder while armed of James Taylor, . AWIKWA of Bernard Mackey, and. several related weapons offenses. Beaver was convicted of first-degree premeditated murder while armed of Laquanda Johnson, assault with a dangerous weapon 9 (“ADW”) of Keisha Frost, and obstruction of justice, carrying a pistol without a license,, unlawful possession of a firearm in connection with that event. He was also convicted of an additional count of obstruction of justice related to his prior attempts to influence the testimony of the Johnson sisters. Cooper was convicted of first-degree premeditated murder while armed of Laquanda Johnson and ADW of Keisha Frost on a conspiracy theory of -liability pursuant to Pinkerton v. United States, 328 U.S. 640 , 66 S.Ct. 1180 , 90 L.Ed. 1489 (1946). He was also convicted on two counts of obstruction of justice related to the Johnson sisters and several weapons offenses. Rushing was convicted of first-degree premeditated murder while armed of Laquanda Johnson, ADW of Keisha Frost, and obstruction of justice and weapons offenses related-'to that shooting. Finally;' Amette was convicted of second-degree 'murder while armed of Terrence Jones, armed robbery of..Richard Queen, and weapons offenses related to that incident.
' Appellants followed with these appeals. In our discussion of their manifold claims of error, we first analyze the claims relating to the sufficiency of the government’s evidence. Next, we deal with procedural and evidentiary issues affected by the alleged conspiracy and flowing from' áppel-lants’ joint trial. Then, we address pretrial and trial matters not directly tied into the conspiracy or appellants’ joinder. We conclude with our merger analysis and instructions to the trial court upon remand.
VII. Claims Concerning the Sufficiency of the Evidence
A. Conspiracy
Appellants argue that the evidence failed to establish their membership in the single conspiracy charged by the supersed *424 ing indictment. 10 Instead,- they contend, the evidence merely established, at best, only several short-term and discrete conspiracies, and the trial judge erred in failing to grant their motions for judgment of acquittal (“MJOA”) as to the conspiracy count. /‘The standard by .which we review a denial of a MJOA is de novo, and we, like the trial court, determine whether the evidence, viewed in the light most favorable to the government, was sqch that a reasonable juror could find. guilt .beyond a reasonable. doubt.” .(Vashon) Howard v. United States, 867 A.2d 967, 972 (D.C.2005) (internal quotation marks and alterations omitted).
“To prove conspiracy, the government must establish that an agreement existed between two or more people to commit a criminal offense; that the defendant's] knowingly and voluntarily participated in the agreement, intending to commit a criminal objective; and that, in furtherance of and during the conspiracy, a co-conspirator, committed at least one overt act.” Hairston v. United States, 905 A.2d 765, 784 (D.C.2006) (internal quotation marks omitted). “A conspiratorial agreement may be inferred from circumstances that include the conduct of defendants in mutually carrying out a common illegal purpose, the nature of the act done, the relationship of the parties and the interests of the alleged conspirators.” Castillo-Campos v. United States, 987 A.2d 476, 488 (D.C.2010) (internal quotation marks and alterations omitted). Gang membership may be circumstantial evidence probative of the offense of conspiracy. Id. (citing Perez v. United States, 968 A.2d 39, 82-83 (D.C.2009)).
' “In determining whether the evidence supports a finding of a single conspiracy, the court looks at whether the defendants shared a common goal, any interdependence between the alleged participants and any overlap among the alleged participants.” McCullough v. United States, 827 A.2d 48, 60 (D.C.2003). “The existence of a single conspiracy or multiple conspiracies is primarily a question of fact for the jury.” Hairston, 905 A.2d at 784 (quoting United States v. Tarantino, 846 F.2d 1384, 1391 (D.C.Cir.1988)).
The superseding indictment charged that between April 2003 and July 2006, appellants and others conspired as follows:
{Defendants Lannell N. Cooper ... Stephen R. Gray ... Michael D. Tann ... Antonio D. Arnette ... Saquawn L. Harris ... Robert J. Foreman ... Brian K. Gilliam ... Dwayne A. Wright ... James E. Rushing ■... [and Dajuan D. Beaver],[ 11 ] and other persons whose identities are both known and unknown to the grand jury, did knowingly and willfully combine, conspire, confederate, and agree together to obstruct justice and to assault and' kill anyone whose *425 interests were contrary to those of the defendants and their associates, in violation of 22 D.G.Code Sections 401, 402, 722, 2101,
The indictment proceeded to list thirty-three discrete overt acts, twenty-seven of which went to the jury, alleged to have been committed by at least one charged or uncharged coconspirator.-
Because of the way that the indictment alleged the conspiracy,-we review the sufficiency of the. evidence to examine whether it properly established that each appellant knowingly participated in an agreement to obstruct justice, or to assault or kill anyone whose interests were contrary to those of the defendants and their coconspira-tors, 12 and whether at least one overt act was committed by a coeonspirator. At trial, the government offered testimony about the structure and operations of the 22nd Street - Crew through several gang “insiders” who testified as cooperating witnesses: former gang members Andre McDuffie, Devin Evans, Donald Matthews, and Alphonce Little. Their testimony tended to demonstrate that the gang had a geographical territory around 22nd Street where only authorized members were permitted to sell illegal drugs. In order.be part of the 22nd Street Crew and enjoy the privileges associated with that memr bership, such as the right to partake in the profits of the gang’s drug trafficking business, members had to be willing to further the common goals of the gang through the usé of'violence. McDuffie testified that to sell drugs as a member of the 22nd Street Crew:
You have to commit acts of violence; you have to stay loyal to one another; you got to help each other, if you need anything [like] guns or if you need more drugs. It’s a commitment. It’s like a way of life.
Appellants and other gang members used violence to protect their territory and to silence or retaliate against those who were believed to threaten the business and security of the gang and its operations. Devin Evans testified that an “outsider” was “considered somebody that’s not from your neighborhood, somebody that’s not welcomed” who would be “dealt with [by] acts of violence” if caught acting in a way adverse to the business interests of the crew. Andre- McDuffie further explained: “[W]e had to enforce that no one can come into our area and try to take over our territory; no one can come in there and sell drugs [because] we wasn’t having it.” If an outsider tried to move in on the gang’s drug market, McDuffie stated, “[The outsider] would have a -problem [and] may end up losing [his life.]” Donald Matthews testified similarly. When asked what would happen if people from another part of the city “decided to set up shop and sell drugs” on 22nd Street, Matthews replied “[t]hey wouldn’t last long” because gang members would “[r]un them away” using “[violence.”
The gang members treated “snitches,” meaning those “cooperating, telling authorities -... about the activities of our organization,” in the same way. McDuffie testified that if someone was to cooperate with the government, “there would be violence inflicted.”
The gang members played different roles in the operation according to the “different rank[s] and levelfs] of respect” that members had earned over time through demonstrations of loyalty to the gang. Donald Matthews testified that the *426 different roles assigned to. gang members included selling drugs, storing money, stealing cars, and. “committing] acts of violence in order to protect the neighborhood.” However, Andre McDuffie also testified that “everyone was an enforcer,” willing to handle a “beef’ with “rival[s] in the street. The cooperating witnesses also revealed how 22nd Street Crew members shared weapons, warned each other about police activity in the gang’s, and provided assistance to gang members who were in jail- r
Such testimony sufficiently showed that no matter what role was played by a particular gang member at a given time, the 22nd Street Crew members were required to support the use of violence in order to advance the overall goals of maintaining the stability and reputation of the organization, its territory, and its illegal drug business. This testimony also established that the gang operated as a cohesive unit (albeit loosely coordinated), with, a rank and leadership configuration > that bound the gang together.
This testimony was the backdrop with which, the jury- examined the participation of appellants in the charged conspiracy and. the facts of the murders in. this case. The following subsections detail the evidence that more specifically demonstrated the knowing participation of appellants in the conspiracy alleged.
1. Antonio Arnette
Donald Matthews testified that appellant Antonio Arnette was a member of the 22nd Street Crew. According to Matthews, Arnette spent considerable time with appellants Cooper, Rushing, and fellow gang member Alphonce Little, on 22nd Street. Matthews testified thát Arnette was also involved with other 22nd Street Crew members in packaging and selling illegal drugs in areas commonly used by the gang. Two other gang “insiders,” Devin Evans-and-Alphonce Little, also testified that Arnette was a member of the 22nd Street Crew. Little testified that Arnette sold drugs on 22nd Street and sometimes carried -a gun. Several police officers also testified that they observed Arnette trafficking illegal drugs in the presence of other gang members and in .areas known to belong'to the 22nd Street Grew.
Arnette also played a leading role in the attack on Terrence Jones and Richard Queen. The evidence about this incident reasonably showed that Arnette perceived that Terrence Jones and Queen affronted the territory- of the 22nd Street Crew by confronting fellow gang member Donald Matthews on the gang’s turf. Arnette then called out Terrence Jones and Richard Queen for “faking” on 22nd Street, identified the two outsiders to Cooper (who Arnette knew was a leading member of the gang), and recommended that Cooper “bring his hammer” to deal with the situation. And the facts showed that Cooper (and Tann) responded accordingly, in reliance on Arnette’s representations, resulting in a chain of events that led to Terrence Jones’s death and Queen’s shooting.
Although Arnette. and Cooper may have been mistaken about whether Terrence Jones or Richard Queen was a true threat to the interests of the 22nd Street Crew, the evidence was sufficient to show that Arnette and Cooper believed that the outsiders, who they thought were “faking” by challenging Donald Matthews, had territorial aspirations adverse to the interests of appellants and their 22nd Street Crew associates. The evidence surrounding this incident, especially in the context of Ar-nette’s active membership in the 22nd Street Crew and its illegal activities, was sufficient to demonstrate his knowing participation in an agreement with Cooper *427 and other gang members “to assault and kill” those whose goals were contrary to those of the gang.
2. Dajuan Beaver
Appellant Beaver was identified by Devin Evans, Donald Matthews, and Al-phonce Little as a member of the 22nd Street Crew who sold illegal substances with other gang members on 22nd Street. Alphonce Little also testified that he shared weapons with Beaver and that Beaver carried a gun.
Beaver also played a role in the crimes against the Johnson sisters, who were known by the gang members to be government cooperators. Beaver was involved in assisting Cooper with his attempt to alter Kyara’s testimony in the period leading up to his trial. Moreover, Beaver was a key player in Laquanda Johnson’s murder. Beaver found the Johnson sisters on 22nd Street the evening of the murder, convinced Alphonce Little to murder them in retaliation for their cooperation with the government in Cooper’s 2006 trial, and then assisted Little by helping him put. together a disguise before the shooting and covering up the crime afterward. The evidence was clear that Beaver was motivated to aid in this crime because of his membership in the 22nd Street Crew and his belief that the objectives of the membership were contrary to those of “snitches.” Thus, the evidence was sufficient to show' Beaver’s knowing participation with other gang members in a conspiracy to “obstruct-justice and to assault and kill” persons with aims contrary to those of his. codefendants.
3. Lannqll Cooper
Government witnesses testified that appellant Cooper was a long-standing and high-ranking member of the organization who by 2004 “could tell everybody [in the gang] what to do.” He was also deeply involved in -the illegal drug trade on 22nd Street. Cooper was a principal in the murder of Terrence Jones for perceived threats to the gang’s reputation and territory on 22nd Street. And he was the-instigator, of a series of attempts to obstruct justice with regard to the cooperation of the Johnson sisters with the government in his 2006 prosecution — attempts which were ultimately connected to La-quanda- Johnson’s murder by Alphonce Little. Clearly, the evidence was sufficient to show his knowing participation in an agreement with other members of the 22nd Street crew to commit obstruction of justice and murder of individuals possessing interests conflicting with those of the gang.
4.Saquawn Harris
Alphonce Little testified that appellant Harris was a member of the 22nd Street Crew, although he was a newer member of the gang who had been introduced to the gang and encouraged to sell drugs on 22nd Street by influential gang member Eric Dreher. Little further stated that he sold illegal drugs with Harris and shared weapons with him. The testimony of several police officers bolstered Little’s testimony about Harris’s connection to the 22nd Street Crew by establishing that Harris was seen regularly with Tann, Beaver, Ar-nette, Rushing and other gang'members on 22nd Street.
In light of these relationships, the James . Taylor-Bernard Mackey incident was probative evidence of Harris’s participation in the conspiracy. The facts of that incident showed that Harris, Tann, and many other gang members, -responded to an insult by an outsider, Omar Harrison, to Alphonce Little’s girlfriend on 22nd Street — in the heart of the gang’s territory — and to Harrison’s instruction to Little’s girlfriend to “go get your babyt’s] father.” Harris and *428 Tann opened fire in the direction of Omar Harrison in a sequence of events that resulted in the death of James Taylor- and the wounding of Bernard ..Mackey. Like the Terrence Jones-Richard Queen incident, Harris’s active participation in an event where he violently reacted to a per-. ceived threat to the reputation of the gang (and to the girlfriend of a fellow gang member) was sufficient evidence of his knowing participation in an agreement “to assault and to kill” those whose interests ran contrary to those of his gang associates.
5. James Rushing
Andre McDuffie testified that appellant Rushing had been a member of the 22nd Street Crew since the early 1990’s; McDuffie was a senior gang member at the time of Rushing’s entry into the gang, and McDuffie was responsible for teaching Rushing gang-related skills. McDuffie also testified that he saw Rushing sell crack cocaine on a regular basis on 22nd Street. Matthews’s testimony additionally provided supporting evidence of Rushing’s drug trafficking activities with other members of the gang.
Like Beaver, Rushing played a critical role in the Laquanda Johnson murder, which was evidence of his involvement in the conspiracy. Knowing that Little intended to murder the Johnson sisters because of their cooperation with the government, Rushing agreed to act as Little’s getaway driver. Rushing drove Little and Beaver from the scene of the crime after Little killed Laquanda and wounded Keisha Frost. He also helped Little cover up the crime by instructing him to discard-his clothing, and by driving Little to Beaver’s mother’s house in Maryland where Beaver stashed the murder weapon. Given Rushing’s participation in the Laquan-da Johnson murder, the killing of a known government cooperator, in light of Rushing’s relationship with the 22nd -Street Grew and its members, the evidence was sufficient to show his knowing participation in the conspiracy “to kill or assault” persons (such as Laquanda) whose interests were not aligned with'those of Rushing or his associates.
6. Michael Tann
All of the government’s “insider” witnesses (McDuffie, Evans, Matthews, and Little), as well as Tracey Tann (appellant Tann’s wife), testified that Tann was a well-known and high-ranking member of the 22nd Street Crew! Matthews and Little also provided testimony about Tann’s participation with other gang members in the gang’s drug trade.
More than any other appellant, Tann was also closely-involved in the acts of violence against outsiders who challenged the 22nd Street Crew’s territory and reputation.. Tann was a key player in- the Leslie Jones, Terrence Jones, and James Taylor murders. Moreover, the facts point to Tann’s repeated use of threats of violence against potential witnesses, who might testify against his coconspirators; in order ,to obstruct justice. These circumstances were sufficient to establish that Tann — sometimes acting alongside other gang members to commit acts of violence against perceived rivals (including Terrence Jones and Omar Harrison) — knowingly joined and participated in an agreement “to obstruct justice or assault or kill” persons whose interests ran counter to those of the gang.
In sum, the evidence was sufficient to show that appellants, all members of the 22nd Street Crew, entered into an agrees ment to obstruct justice by threatening or manipulating witnesses, or to assault or kill persons whose interests were at odds *429 with theirs, such as rivals or cooperating witnesses, and knowingly and voluntarily participated in that agreement. Hairston, 905 A.2d at 784 . Moreover, of the twenty-seven overt acts of the conspiracy that went to the jury, many were supported by sufficient evidence, and at least some were supported by overwhelming evidence. 13 See Lumpkin v. United States, 586 A.2d 701, 703 (D.C.1991).
As to appellant’s arguments that the proof at trial did not show a single conspiracy, but instead showed that appellants merely engaged in “discrete projects, which happened within a general community ethos,” and that the “indictment was so broad and unlimited as to be meaningless in a criminal context”, we find them unavailing. First, the evidence was sufficient to show that appellants were engaged in actions demonstrating a core common purpose, namely to inflict or threaten violence on rivals (real or perceived) and government cooperators. See United States v. Graham, 83 F.3d 1466, 1471-72 (D.C.Cir.1996) (concluding that there was a single conspiracy where the court had “no doubt that [the] evidence was sufficient for a reasonable juror to conclude that appellants and others shared the common goal of distributing crack cocaine for profit” despite evidence of multiple drug-dealing “cliques” operating in a particular territory).
Moreover," it is clear that the appellants and other gang members acted together, relied on each other, and often coordinated their efforts, in order to more effectively achieve their common goal of inflicting (or threatening) violence on those opposed to the interests of the gang. See United States v. Gatling, 96 F.3d 1511, 1522 (D.C.Cir.1996) (finding “interdependence” existing for purposes of a single conspiracy even when assistance provided by cocon-spirators to each other is “fairly minimal”); see also United States v. Richerson, 833 F.2d 1147, 1154 (5th Cir.1987) (“Parties who knowingly participate with' core conspirators to achieve a common goal may be members of an overall conspiracy.”). The events of the Terrence Jones murder-Richard Queen assault (involving Tann, Cooper and Arnette), ■ the James Taylor murder-Bemard Mackey assault (involving Tann, Harris, and other gang members), and La-quanda Johnson murder-Keisha Frost assault (involving Beaver and Rushing), are examples of such coordinated actions by all appellants to achieve the goals of the conspiracy. , .
Finally, we agree with the United States Court of Appeals for the District of Columbia Circuit that “a conspiracy’s purpose should not be defined in too narrow or specific terms.” Gatling, 96 F.3d at 1520 . Our case law demonstrates the same principle. See Hairston, 905 A.2d at 784 (conspirators’ aim was to “seek[ ] revenge against the 1400 block faction [of rival gang members]”); Castillo-Campos, 987 A.2d at 483 (conspiracy’s objective was “to kill or otherwise ‘get’ the rival gang members”). Here, although the conspiracy to “obstruct justice and to assault and kill anyone whose interests were contrary” to the gang was indeed .a broadly, stated criminal objectivé, appellants have not cited any authority demonstrating that the conspiracy count as charged was legally deficient. Cf. United States v. Romero, 897 F.2d 47, 51-52 (2d Cir.1990) (affirming conviction for conspiring to kill a federal officer where defendants’ conspiracy “was the result of a plan agreed to by all the defendants to kill anyone posing a threat to them or [their narcotics] business”).
*430 Instead, the conspiracy count adequately apprised appellants of the elements of the offense- and the time frame within which the conspiracy existed, such that appellants could properly prepare their defenses and were protected against double jeopardy. See United States v. Roman, 728 F.2d 846 ,-863-54 . (7th Cir.1984) (indictment properly charged conspiracy where it alleged a conspiracy, the. criminal statute violated,- and the time frame of the conspiracy). Therefore,- we grant no relief to appellants on the basis of their claims regarding the sufficiency of the evidence on, or the legality of, their conspiracy charges.
B. Terrence Jones-Richard Queen Incident
1. Tann’s Convictions: Second-Degree Murder While Armed of Terrence Jones, Armed Robbery and AWIK- , WA of Richard Queen, and Possession of a Firearm During the Commission of a Crime of Violence (“PFCV”)
Appellant Tann' makes several sufficiency claims regarding his Terrence Jones-Richard Queen related convictions. Emphasizing heavily the testimony of Richard Queen and the lack of credibility of Donald Matthews, Tann challenges the identification evidence that the jury relied on for his involvement in the entire incident. Furthermore, he argues that, even if found to have been involved in the event, he did not possess the state of mind required for the jury to convict him under an aiding-and-abetting theory of liability for the second-degree murder while armed of Terrence Jones and related counts of PFCV.
Tann’s argument concerning the offenses in which he was the principal (the armed robbery of Richard Queen, AWIKWA of Queen, and related weapons offenses) is that the government’s evidence was insufficient because it rested solely on a single, incredible witness: Donald Matthews. However, the testimony of a single witness is sufficient to sustain a conviction, even where contradicted by other witnesses or evidence. Gibson v. United States, 792 A.2d 1059, 1066 (D.C.2002). Although Matthews was not a perfect witness, the jurors credited his testimony and it was permissible for them to do so. 14 We afford the jury’s credibility determination substantial deference on appellate review. (Steven) Robinson v. United States, 928 A.2d 717, 727 (D.C.2007).
Tann’s other claims involve those crimes of which he was convicted on an aiding-and-abetting. theory of liability (second-degree murder of Terrence Jones and related PFCV offenses). Because he, was convicted of second-degree murder for aiding and abetting Cooper’s shooting of Terrence Jones, the government was required to - prove that Tann had, at a minimum, a “depraved heart” with regard to Terrence Jones’s death. Perez, 968 A.2d at 102 (“For second-degree murder, the intent, required is malice, which can be proven by evidence of a specific intent to kill, specific intent to inflict serious bodily harm, or wanton and willful disregard of an unreasonable human risk — also known as ‘depraved heart’ murder.”). “[W]here a specific mens rea is an element of a criminal offense, a defendant must have had that mens rea himself to be guilty of that offense, whether he is charged as the principal actor or as an aider and abettor.” *431 Kitt v. United States, 904 A.2d 348, 356 (D.C.2006); see also Coleman v. United States, 948 A.2d 534, 552-53 (D.C.2008) (extending the doctrine that the aider and abettor must share in the mens rea of the principal to second-degree murder).
Tann portrays his attack on Richard Queen as separate and distinct from Cooper’s and Arnette’s attack on Terrence Jones; further, Tann claims that there was no evidence that he knew Cooper was going to shoot Terrence Jones or that he helped Cooper with the shooting. To be sure, there was no evidence of any pre-attack discussion or coordination between Tann, Cooper, and Arnette in which the gang members explicitly identified Terrence Jones’s death as a goal.
However, the government had powerful evidence of a joint and coordinated effort, and of Tann’s “depraved heart,” through testimony that as the attack was escalating, Cooper ordered Arnette, Tann, and others, to rob Terrence Jones and Richard Queen — an order which was carried out by its recipients. This was done when Cooper directed his cohorts to “Pat them niggers’ pockets.” The evidence was not perfectly clear to whom this order was issued and precisely when Cooper said it in the course of events; however, a fair interpretation of the evidence suggests that it was made by Cooper to both Arnette (who was covering Terrence Jones) and the men (including Tann) who were attacking Queen.
This understanding of the evidence was bolstered by testimony that Cooper’s instructions were immediately carried out by Tann, Arnette, and others,- with regard to both Terrence Jones and Richard Queen. The close proximity of the attack on Terrence Jones and the attack on Queen, a matter of approximately ten feet according to witnesses, in conjunction with these robbery instructions, sufficiently proved that the attacks were a knowingly organized (if not verbally articulated) venture designed to allow Tann and his fellow gang members tactically to divide their victims in order to better subdue, rob, and eventually shoot both of them. Moreover, the jury could have easily inferred fi’om the close proximity of the assaults that as Tann attacked Queen, he saw Cooper (a man by reputation known to have a history of violence) striking Terrence Jones and pointing a gun at him.
Given these circumstances, it was reasonable for the jury to have found'that Tann displayed a “wanton and willful disregard of an unreasonable human risk” to the life' of Terrence Jones when he isolated, neutralized, robbed, ahd ultimately shot the man who he knew was in a position to come to Terrence Jones’s aid: Richard Queen. See (Darion) Ingram v. United States, 40 A.3d 887, 900-01 (D.C.2012); Perez, 968 A.2d at 102 .
Analyzing Tann’s PFCV offenses associated with Cooper’s murder of Terrence Jones, our case law instructs that “[w]hen the government relies on an aiding and abetting.theory to prove PFCV, it is not enough to show that the defendant participated ‘in the “larger scheme” of the [crime].’” Fox v. United States,, 11 A.3d 1282, 1287 (D.C.2011) (quoting Lancaster v. United States, 975 A.2d 168, 175 (D.C.2009)). “Rather, the government must prove some act on the defendant’s part that assisted the [principals] in their possession of firearms.... ” Fox, 11 A.3d at 1287 (internal quotation marks and emphasis omitted). Tann’s case is distinguishable from eases such as Fox and Lancaster where we found PFCV offenses insufficient in the aiding-and-abetting context.
By complying with Cooper’s directive to rob Richard Queen, the jury could have found that Tann assisted Cooper in maintaining possession (by preventing Queen *432 from coming to the aid of his friend) of the firearm that he was using in the course of the murder of Terrence Jones. The facts show that Tann took affirmative steps to help Cooper keep possession of his firearm by subduing Queen in a number of ways: (1) patting Queen’s pockets — at Cooper’s direction; (2) striking Queen; (3) robbing Queen; (4) and ultimately shooting Queen as he ran for safety where he could have called for help for Terrence Jones. Furthermore, the fact that Terrence Jones resisted Cooper by hitting him suggested that Tann’s actions toward Queen were helpful in ensuring that Queen could not aid Jones in further interfering with Cooper’s possession of the weapon. Dang v. United States, 741 A.2d 1039, 1043 (D.C.1999).
The facts of Dang , where we found that the evidence was sufficient to show that appellant aided and abetted his codefen-dants in the possession of their firearms, are very similar to the facts here. In Dang , although the defendant did not possess a weapon, the evidence demonstrated that he “worked in concert with [his code-fendants] by, among other things, blocking the door, guarding [one victim] and pointing a knife at [a second victim].” Id. Here, like in Dang , Tann helped Cooper maintain possession of his weapons through his actions, working in concert with those of Cooper, to neutralize Richard Queen.
Therefore, we reject in their entirety Tann’s arguments challenging the sufficiency of the evidence for his convictions related to the Terrence Jones-Richard Queen incident.
2. Arnette’s Convictions: Second-Degree Murder While Armed of Terrence Jones, Armed Robbery of Richard Queen, and PFCV
Like Tann, appellant Arnette argues that the evidence was insufficient as to the mens rea elements required for his Terrence Jones murder-Riehard Queen assault related convictions. The government pursued each of the counts in the indictment against Arnette related to this incident under an aiding-and-abetting theory of liability.
Kyara Johnson testified that Arnette initiated the attack by calling for Cooper and telling him to confront Terrence Jones and Richard Queen while armed, i.e., with his “hammer.” Kyara also testified that Ar-nette patted Terrence Jones’s pockets, at Cooper’s command, and struck him with his hands while Cooper had his gun drawn. Certainly, if believed, this would amount to active participation in the assault on Terrence Jones. However, as Tann does, Ar-nette argues that his involvement in the offense did not demonstrate the necessary state of mind for second-degree murder because he had no reason to believe that Cooper would shoot Terrence Jones. Also like Tann, Arnette relies on the fact that there was no previous conversation with Cooper about intending to kill Terrence Jones or any evidence that Arnette did anything to encourage Cooper to do so. Instead, he argues that the shooting was a “spontaneous reaction by Cooper” to Terrence Jones’s unexpected resistance to the attack.
Arnette further argues that the evidence is even more attenuated, and therefore also insufficient, regarding his convictions for aiding and abetting Tann in the armed robbery of Richard Queen. He claims that there is no reasonable inference to be drawn from his actions toward Terrence Jones (patting his pockets and/or hitting him) that supports the notion that he shared in Tann’s intent to rob Queen.
The government witnesses against appellant Arnette were often inconsistent and sometimes exculpatory in their testimony. However, the question here is *433 whether, viewing the evidence in the light most favorable to the government, Ar-nette’s conduct demonstrated the “depraved heart” (if not a more criminally culpable) state of mind required for the second-degree murder of Terrence Jones, the specific intent to commit armed robbery of Queen, and knowledge of Cooper’s and Tann’s use of firearms, as well as assistance to Cooper and Tann in maintaining possession of those firearms, as required by the associated PFCV offenses. The key facts, as to the offenses involving both victims, were: (1) Arnette instigated the entire event by identifying Terrence Jones and Richard Queen to Cooper and telling him that the two .men were on 22nd Street “faking”; (2) Arnette instructed Cooper to “bring his hammer,” meaning Cooper’s gun, thereby anticipating and inciting violence; (3) Arnette complied with Cooper’s order to pat Terrence Jones’s pockets; (4) Arnette hit Terrence Jones in the course of the attack; (5) Tann violently assaulted Queen less than ten feet away from Arnette’s and Cooper’s attack on Terrence Jones; and (6) Cooper phrased his “robbery” instruction in the plural, so Arnette would have known that there were two victims to be jointly controlled and subdued by the attackers.
As to the offenses in which Arnette aided and abetted Cooper (second-degree murder and associated PFCV offenses), the evidence against Arnette was clearly sufficient. See (parion) Ingram, 40 A.3d at 900-01 ; Perez, 968 A.2d at 102 . Arnette’s instigation of the violent attack on Terrence Jones and his active assistance during its undertaking demonstrated, at a minimum, a “wanton and willful disregard of an unreasonable human risk.” Perez, 968 A.2d at 102 . Moreover, the PFCV convictions underlying the Terrence Jones offenses- were also based on sufficient evidence given that Arnette himself instructed Cooper to bring his gun to confront Terrence -Jones and Richard Queen — obviously demonstrating the requisite awareness and knowledge of Cooper’s use of a firearm. Then, Arnette took steps to assist Cooper in maintaining possession of the firearm during Cooper’s attack on Terrence Jones. See Fox, 11 A.3d at 1287 ; Lancaster, 975 A.2d at 175 ; Dang, 741 A.2d at 1043 .
For the robbery conviction of which Arnette was an accomplice to Tann, the government was required to show that Arnette had the specific intent to aid and abet Tann in the robbery of Richard Queen. Lattimore v. United States, 684 A.2d 357, 359-60 (D.C.1996). Certainly, there was no evidence of a pre-attack discussion outlining robbery as a goal of the attack which would have made the government’s case clearcut. Arnette relies on a Virginia case, McMorris v. Commonwealth, 276 Va. 500 , 666 S.E.2d 348, 352 (2008), for the proposition that “[r]obbery is not an incidental, probable consequence of an assault; robbery requires a completely different type of wrongdoing: stealing.” Indeed, a joint assault plus close proximity to a codefendant’s robbery may be insufficient to show specific intent to commit robbery under an aiding-and-abetting theory of liability. But the facts here are not so limited.
As we have already discussed, between the first stages of the attack and Tann’s subsequent robbery of Richard Queen, Cooper issued his robbery instructions. And Cooper phrased his instructions in the plural: “Pat them niggers’ pockets.” These instructions were followed by Ar-nette’s patting of Terrence Jones’s pockets, which could have been reasonably interpreted as a robbery attempt by Ar-nette on Jones. The fact that Arnette heard, and executed Cooper’s instructions strongly implied that Arnette knew ex *434 actly what Tann (one of the other recipients of Cooper’s instructions) was similarly doing to Queen, and Arnette was intentionally aiding and abetting the. robbery of Queen through his actions containing and subduing Terrence Jones. Again, it was reasonable for the jury to have viewed the entire attack (including the robbery) as a coordinated venture among Cooper, Tann, Arnette, and others, in which the gang members worked together, at Cooper’s direction, to make their attack on both victims more successful through ' combined efforts. See Downing v. United States, 929 A.2d 848, 862 (D.C.2007) (defendant’s presence at the scene of a crime plus conduct which facilitates a crime supports an inference of guilt as an aider and abettor). So viewed, the evidence was legally sufficient for the jury to find that Arnette possessed the state of mind necessary for the second-degree murder of Terrence Jones, the robbery of Richard Queen, and the PFCV offenses associated with Cooper’s murder of Jones.
However, the analysis is different as to Arnette for the “armed” component of the robbery of Richard Queen and the related PFCV offense. Unlike Cooper’s robbery instructions, which put Arnette on notice that Queen was about to be robbed, there was no similar mechanism by which Ar-nette was put on notice that Queen was about to be robbed by the use of a firearm. There is no evidence that Tann was in possession of a weapon prior to the point when Donald Matthews saw Tann pick up a gun from the ground during the melee and immediately use it to shoot Queen. Although arguably Arnette should- have anticipated or foreseen -that Tann would use a weapon, especially in light of Ar-nette’s statement to Cooper that Cooper should bring his weapon, recent case law from the Supreme Court, as well as this court, teaches that foreseeability alone is insufficient to support such a judgment of conviction under an aiding-and-abetting theory of liability.
In order to convict of an offense requiring the use of a firearm by a principal, the government must prove that the aider and abettor knew in advance that his associate was armed with a gun — enabling the defendant to “make the relevant (and indeed, moral) choice” to aid and abet an armed offense. Rosemond v. United States, — U.S. -, 184 S.Ct. 1240 , 1249, 188 L.Ed.2d 248 (2014) (“[A]n unarmed accomplice cannot aid and abet a [PFCV-type] violation unless he has foreknowledge that his confederate will commit the offense with a firearm.”) (internal quotation marks omitted); (Leon) Robinson v. United States, 100 A.3d 95, 106 (D.C.2014) (“Á person cannot intend to aid an armed offense if she is unaware a weapon will be involved.”). Here,' there was insufficient evidence that Arnette had advance knowledge that Tann was armed during the robbery of Richard Queen.
Under these circumstances, the mere proximity of Arnette to Tann was not enough to infer such knowledge. The evidence showed that Tann picked up a firearm and used it to rob and shoot Richard Queen quite late in the timeline of the incident, giving Arnette no meaningful notice (if any at all) that Tann was going to use the gun to effectuate his attack on Queen. Cf. Rosemond, 134 S.Ct. at 1250 n. 9 (“Of course, if a defendant continues to participate in a crime after a gun was displayed or used by a confederate, the jury can permissibly infer from his failure to object or withdraw that he had such knowledge.”).
Had there been some evidence from which the inference could be drawn that Arnette had advance knowledge that Tann was using a gun to carry out the robbery, *435 as well as evidence that Arnette assisted Tann in maintaining possession of the firearm, and decided to proceed with his involvement in the attack on Terrence Jones and Queen, our conclusion would be different. However, we see insufficient evidence based on this record. See Rivas v. United States, 783 A.2d 125, 134 . (D.C.2001) (en banc) (“[I]f the evidence, when viewed in the light most favorable to the government, is such that a reasonable juror must have a reasonable doubt as to the existence of any of :the essential elements of the crime, then the evidence -is insufficient and we must say so.”) (internal quotation marks omitted).
Therefore, we vacate the judgment as to the “armed” component of Arnette’s robbery conviction and his PFCV conviction associated with the robbery. The lesser-included offense of unarmed robbery, and all of Arhette’s other convictions related to this incident are affirmed. 15
C. James Taylor-Bernard Mackey Incident
Appellants Tann and Harris challenge the sufficiency of the evidence for their convictions based on the James Taylor and Bernard Mackey incident. Fundamentally, their claims turn on how the law of aiding and abetting is to be applied to the facts of this event. In addition to their sufficiency arguments, appellants raise two related claims, one regarding the aiding- and-abetting instruction given to the jury, and another regarding the trial court’s “curtailment” of their closing arguments. Since all of these arguments turn on whether the court properly decided the legal issue related to the theory of liability, they are all addressed here.
The government argued that there were three shooters within the group of gang, members who raced toward Omar Harrison after his dispute with Alphonee Little’s girlfriend, Ashley Tyndle, from different directions on 22nd Street: appellants Tann and Harris,. as well as a third shooter, junior gang member Robert Foreman. But the government presented evidence that additional gang members were shooting as well. , Latina Anderson testified that she saw between five and ten men, including gang members Tann, Harris, Little, and Blaylock, emerge from nearby. *436 “cuts” and shoot at Harrison. 16 Christina Anderson told the grand jury that she saw Tann and Blaylock shooting. Donnise Harris saw Tann, Harris, and “a'lot of people” running and shooting. Thus, if credited, the testimony of several witnesses established that there were a number of 22nd Street Crew members at the scene of the crime moving toward Omar Harrison in a hostile manner and shooting.
Furthermore, there was testimonial evidence — not really disputed on appeal— tending to show that Harris and Tann opened fire on 22nd Street with the intent to shoot Harrison and that they were each aware of each other’s presence at the timé of the shooting. Anderson testified that some other shooters were standing within a few steps of Tann and Harris while they all were shooting, thus permitting an additional inference that Harris and Tann were aware of the presence and participation of other gang-member shooters. However, there appears to have been no evidence to suggest that either Harris or Tann was aware of the specific presence and participation of Foreman until after the incident was complete. Foreman was shooting from a different position on 22nd Street than either Harris or Tann. The testimony was that Foreman saw and heard Tann and Harris firing at Harrison, felt compelled to join in the attack, and started shooting as well. The evidence was ambiguous as to which of the shooters, Harris, Tann, Foreman, or someone else, actually fired the shot or shots that hit Janies Taylor and Bernard Mackey.
There was' at least some evidence to show, primarily through the testimony of Alphonce Little, that James Taylor was not killed until after Harris’s gun ran out of bullets and he stopped firing at Omar Harrison. Based on his statements to his fellow gang members, Robert Foreman appeared to believe, or want others to believe, that his- shot hit Taylor.
The forensic evidence was of limited value. Although it was clear that James Taylor had been killed by a gunshot wound to the head, the fatal bullet passed through him and was not identified during the investigation. Therefore, there was no link between the fatal bullet and a particular gun or shooter; additional forensic evidence was of minimal weight in identifying the actual killer, and the government essentially conceded this at trial. The evidence was even less clear with regard to Bernard Mackey. No evidence was presented linking the bullet that grazed Mackey with any particular shooter.
The government charged Harris and Tann with the premeditated murder of James Taylor and AWIKWA of Bernard Mackey. It told the jury' they could convict Harris and Tann of Taylor’s murder and (using transferred intent) of Mackey’s assault either as principals or based on an aiding-and-abetting theory of liability.
Because the government did not know who fired the fatal shot, and also did hot contend that Harris and Tann knowingly or intentionally associated themselves with Robert Foreman in particular at the time of the shooting, 17 it argued that, regardless, aiding-and-abetting liability rendered *437 each one criminally responsible for the others’ actions if they all aided in the commission of the offense by firing at Omar Harrison.
Harris and Tann contended that accomplice liability requires proof that the defendant was “consciously helping the person that was the principal” (whom, they argue, the jury could have found to be Robert Foreman). According to appellants’ brief on appeal, to convict Harris and Tann of aiding and abetting Foreman’s crime, the jury was required to find “beyond a reasonable doubt that [appellants were] aware of Mr. Foreman’s presence and aware that by firing first, they would cause Mr. Foreman to commit the acts that would result in the decedent’s death.”
After litigating the issue, the trial court agreed with the government that if “you can show that the person aided and abetted the crime itself[,] you’ve solved the intent problem.” Accordingly, the judge gave the pattern instruction for aiding and abetting, which does not reference intentional association with the principal. In relevant part, the instruction reads: “To find that a defendant, aided and abetted in committing a crime, you must find that the defendant knowingly associated himself with the commission of the crime, that he participated in the crime as something he wished to bring about, and that he intended by his actions to make it succeed.” Criminal Jury Instructions for the District of Columbia, No. 3.2 (5th ed. rev.2013). During closing arguments, the trial judge further informed the jury that there are two “types” of aiding and abetting: “if you knowingly aid and assist the [principal] ... [or] if you knowingly aid and abet the crime.” In addition, the trial court instructed the jury that it is “not the law” that “ ‘[i]f you don’t know who the shooter is or that they are present, you can’t possibly be working together in a coordinated effort’ and ‘can’t be an aider and abettor.’ ” 18
On this issue, we find ourselves confronted with a very unusual fact pattern. There is no case in this jurisdiction that has addressed ,the legal viability of an aiding-and-abetting theory of liability as applied to a defendant whose actions actually aided the principal, and who possessed the same criminal intent as the principal, but who was unaware of the presence and participation of the principal at the time the criminal offense occurred. Because of the challenging nature of this issue, we pause to flesh out the arguments of the parties — neither of which we fully accept.
1. The Government’s Argument
The government’s argument is that there are two manners in which a defendant in this jurisdiction can be guilty of aiding and abetting. One way is to aid and abet the principal offender in his or her commission of a crime. The other way is to “advise,” “incite,” or “connive” at the offense itself, regardless of “intentional association” between the principal' and the aider and abettor. The government emphasizes the plain language of the' aiding- and-abetting statute, D.C.Code § -22-1805 (2012 Repl.), which reads:
In prosecutions for any criminal offense all persons advising, inciting, or conniving at the offense, or aiding or abetting the principal offender, shall be charged as principals and not as accessories, the intent of this section being that as to all accessories before the fact the law.heretofore applicable in cases of misdemean- or only shall apply to all crimes, whatev *438 er the punishment may be. [Emphasis added.] 19
The government argues that the “or” in the statute makes it disjunctive, and therefore creates these two categories of aiders and abettors. The government’s position is that Tann and Harris were guilty of the “first” form of aiding and abetting, which holds accomplices liable if they advise, incite, or connive “at the offense,” regardless of the relationship, if any, between the accomplice and the principal. Therefore, the government contends, because Tann and Harris incited the crime by shooting at Omar Harrison, causing Foreman also to open fire, Tann and Harris need not have “intentionally associated” with Foreman in order tó be guilty of his crimes (assuming Foreman was the principal).
. The government attempts to bolster this argument by citing to a series of eases, particularly from this court, in which the aiding-and-abetting standard is articulated with'reference to the offense, without dependence on a relationship between the accomplice and the principal. See, eg., English v. United States, 25 A.3d 46, 52 (D.C.2011) (“To be guilty as an aider and abettor of a charged offense ... the defendant must be shown to have assisted or participated in that crime with guilty knowledge.”) (internal quotation marks and emphasis omitted); Tyree v. United States, 942 A.2d 629, 637 (D.C.2008) (“[T]he jury may [ ] convict of aiding and abetting in cases where the evidence is disputed as to who, as between the defendant and someone else, was the principal, so long as there is evidence that the defendant participated — in one capacity or the other — in the events that led to commission of the crime.”); see also Rosemond, 134 S.Ct. at 1249 (“So for purposes of aiding and abetting law, a person who actively participates in a criminal scheme knowing its extent and character intends that scheme’s commission.”). .
2. Appellants’ Argument
Appellants’ argument is that aiding and abetting has historically required the aider and abettor to “intentionally associate” himself or herself with a particular individual who was the principal, with liability attaching only if the accomplice “know[s] of the principal’s presence and criminal intentions.” Appellants cite authorities articulating aiding-and-abetting standards that specifically reference the principal in their formulations. See, e.g., Kitt, 904 A.2d at 356 n. 10 (“[T]he basic requirement ... now almost universally accepted [is that] the accomplice be shown to have intended that the principal succeed in committing the charged offense.”) (citation and *439 internal quotations omitted) (quoting Wilson-Bey v. United States, 903 A.2d 818, 831 (D.C.2006) (en banc)); United States v. (Dwayne) Washington, 106 F.3d 983, 1004 (D.C.Cir.1997) (elements of aiding and abetting include “the specific intent to facilitate the commission of a crime by another”); see also Wayne R. LaFave, Criminal Law § 13.2(b) (5th ed. 2010) (“Generally, it may be said that accomplice liability exists when the accomplice intentionally encourages or assists, in the sense that his purpose is to encourage or assist another in the commission of a crime as to which the accomplice has the requisite mental state.”). Appellants extrapolate that “in-tentionab association” with the principal is, and has always been, required for aiding- and-abetting liability.
Appellants argue that based on the government’s evidence, the jury could have found that Robert Foreman was the principal in the James Taylor murder. Because, appellants argue, they had no knowledge of Foreman’s involvement in the incident and no intent to help or encourage Foreman to commit criminal activities, they could not have aided. and abetted him in his crimes. Although the evidence was ambiguous as to who was actually the principal in both the murder and the AWIKWA, appellants argue that the court’s instruction ensured that they would be convicted, even if the jury found that Foreman was the principal and that appellants had no knowledge of his presence or participation' at the time of the crime (which would certainly have been reasonable for the jury to do).
3, Analysis
Fundamentally, the elements of aiding and abetting are that “(a) a crime was committed by someone; (b) the accused assisted or participated in its commission; and (c) his participation was with guilty knowledge.” Hawthorne v. United States, 829 A.2d 948, 952 (D.C.2003). 20 “A culpable aider and abett[o]r need not perform the substantive offense, need not know its details, and need not even be present, so long as the offense committed by the principal was in furtherance of the common design.”. United States v. Sampol, 636 F.2d 621, 676 (D.C.Cir.1980) (citations omitted). “[I]t is not essential that the principal in the operation be identified so long as- someone has that status.” Gayden v. United States, 584 A.2d 578, 582 (D.C.1990) (internal quotation marks and alteration omitted).
In Wilson-Bey , wedealt with a first-degree premeditated murder prosecution under D.C.Code § 22-1805 and held that “whether the defendant is charged as a principal or as an aider or abettor, the government must prove all of the elements of the offense, including premeditation, deliberation, and intent-to kill.” 903 A.2d at 822 . In doing so, we adopted the rule' of United States v. Peoni, 100 F.2d 401 (2d Cir.1938), and rejected , the “natural and probable consequences” approach to accomplice liability because it “impermissibly relieved the government of the burden of showing that the accomplice had the mens rea required to be guilty of the offense.” In re D.N., 65 A.3d 88 , 95 n. 8 (D.C.2013); *440 see also Nye & Nissen v. United States, 386 U.S. 613 , 618-19, 69 S.Ct. 766 , 93 L.Ed. 919 (1949) (“In order to aid and abet another to commit a crime it is necessary that a defendant ‘in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.’” (quoting Peoni, 100 F.2d at 402 )). We held that an aider and abettor must act with the mens rea required by the specific crime with which the principal is charged and “be an associate in guilt of that crime.” 21 Wilson-Bey, 903 A.2d at 831 (emphasis omitted) (quoting Roy v. United States, 652 A.2d 1098, 1104 (D.C.1995)). We explained in Wilson-Bey , however, that, nothing in the opinion “casts doubt on the propriety of [an] instruction ... to the effect that a jury may . infer that a person intends the natural and probable consequences of his or her acts knowingly done or knowingly omitted.” 903 A.2d at 839 n. 38 (original brackets omitted). Such a presumption, we observed, “does not distinguish between principals and accomplices, nor does it' expand the liability of one but not of the other.” Id.
What we must do in this case, which we did not do in Wilson-Bey because the question was not presented, is determine whether the aider and abettor who acts, as Wilsmk-Bey requires, with the same purpose and intent as the principal must also “intentionally associate” with that specific principal. More pointedly, the question here is whether the aider and abettor must know of the presence and conduct of the specific principal and form the intent to help him or her with the commission of his or her crime, as opposed to share simply (with whoever shared the aider and abettor’s purpose) in the mens rea required to commit the crime itself. 22 Although the evidence was disputed at trial, we assume for the purposes of this opinion that it was Robert Foreman who fired the bullets that hit James Taylor and Bernard Mackey, and therefore, was the principal in the crimes committed against them. We also assume, because here it appears from the record that the evidence was undisputed, that Tann and Harris were unaware of Foreman’s presence during the attack.
The language of D.C.Code § 22-1805 is silent oii whether its terms that describe *441 the accomplice’s advising, inciting, conniving, or aiding and abetting the principal offender in the criminal venture are to be infused with the “intentional association with a principal of whom the defendant is aware” requirement advanced by appellants. Our case law is also silent on this specific point. In the normal case, unlike here, there is little question about the alleged accomplice’s awareness of the role of the principal — if not aware of every detail about the principal’s involvement in the crime at issue, the accomplice is at least aware of his or her presence and participation.
Because our statute, like its federal counterpart, incorporates the common law, 23 we must look to cases with analogous facts interpreting the common law in order to test appellant’s theory that the possibility of recognizing aiding and abetting on unusual facts such as those presented in this case was unknown to the common law, and that recognizing such liability in this case would create liability where it did not exist before. See Outlaw v. United States, 632 A.2d 408, 411 (D.C.1993) (interpreting the elements of D.C.Code § 22-1806, the District of Columbia accessory-after-the-fact statute, in light of the common law in the absence of statutory definitions).
We begin with Whitt v. Commonwealth, 221 Ky. 490 , 298 S.W. 1101 (1927). In that case, while appellant Whitt was firing at Scott (a law enforcement officer who was attempting to arrest him), a third-party, Stanley, appeared and fatally shot Officer Scott. The court observed:
It is clear that appellant in resisting arrest, and in firing at Scott, was attempting to do so to evade arrest, and not only is there nothing to show that Stanley was interested in appellant’s successful evasion of arrest but there is no evidence to show what prompted Stanley in firing the shot at Scott. Whether he had any other and different reason for firing at him is not disclosed, and there is no evidence that appellant advised, counseled, or incited him to fire that shot in any way, or that a word had been spoken between them in any way just prior to, during, or at the time of the difficulty.
The intent or purpose of appellant in firing at Scott is apparent, but there is a lack of evidence from which it may be surmised that Stanley in firing his shot shared the intent or purpose with vihich appellant had fired his, or in fact what his purpose was.
Id. at 1102 (italics added). In concluding that Whitt could not be properly be convicted as an aider and abettor, the court reasoned:
In this case we have the intent which prompted appellant to commit the offenses committed by him, but there is a lack of evidence to show that he shared in any criminal intent or purpose which prompted Stanley to fire the fatal shot. So far as this record discloses, Stanley may have had some criminal intent totally foreign to and disconnected from the intent which prompted appellant; in other words, Stanley may have seized upon the opportunity thus presented to him to even up an old score \vith Scott with which appellant was totally disconnected, and with which criminal intent he had no connection and no sympathy.
*442 Id. at >1103 (italics added). 24 The court’s reasoning strongly implies that had there been evidence that Stanley “was interested in appellant’s successful evasion of arrest,” that Stanley thus “shared the intent or purpose with which [Whitt] had fired his” shot, and that Whitt shared in the purpose which “prompted Stanley in firing the shot at Scott,” the court would not have reversed Whitt’s aiding and abetting conviction.
The reasoning of Landrum v. Commonwealth, 123 Ky. 472 , 96 S.W. 587 (1906), is similar to that of Whitt . There, a group of men, “more or less drunk” and motivated by an inter-family quarrel, involved themselves in “a shooting affray” near the defendant’s house. Id:'at 587-88. The defendant, roused from sleep by the shooting and also “more or less drunk” while apparently unaware of the motivations of the warring families, saw a third-party unassociated with the feuding groups “staggering about” and opened fire. Id, at 587. The defendant’s bullets struck the third-party but merely wounded him superficially. Meanwhile, a bullet fired by someone other than the defendant also hit the third-party, killing him. Id. at 587-88 . There was no evidence that the defendant was acquainted with the man who was charged as the principal in the killing. Id. at 588 . The court, in concluding that the defendant could not be guilty of aiding and abetting the actual killer, found that “whatever may have been the purpose or motive of the [other shooters] ... there was not a scintilla of proof that appellant knew of it or shared it to any extent.” Id. at 588 .
The type of evidence that was missing in Whitt and Landrum is present here. Here, according to Little’s testimony, which the government highlighted in closing argument,
[Foreman] said he seen Ashley [Tyndle] arguing with some dude [Harrison] ... So he said he got out his car and start walking towards there and he seen [appellant Harris] and somebody-else coming around the corner. So he said, man, they got it. So he went back towards his house .... [but then] 'heard a gunshot' ... [so then he] turn[ed] around and start shooting.
In other words (in conjunction with testimony by other witnesses about Harris’s and Tann’s actions after hearing about the argument between Harrison and Tyndle), Little’s testimony established (1) that Foreman shot at Harrison for the same reason Harris and Tann shot at Harrison, and (2) that Foreman, Harris, and Tann shared the purpose that prompted Foreman to fire the fatal shot: to avenge Harrison’s hostile conduct toward the woman (Tyndle). who was the girlfriend of 22nd Street crew member Little.
Regarding what constitutes a shared or common “criminal intent or purpose” in situations where the accomplice may be unaware of the particular presence of the principal, we have identified three cases of note. In State v. Ochoa, 41 N.M. 589 , 72 P.2d 609 , two defendants were part of a crowd of over 100 people that attacked the county sheriff in an attempt to free a prisoner in the sheriffs custody. Shots were exchanged between the mob and the police. Id. at 617 . None of the shots were fired by the defendants, but one of the shots killed the sheriff. The defendants assaulted several of the sheriffs deputies, preventing them from coming to the sher *443 iffs aid. The Ochoa court held that “[t]he fact that [the defendants] were thus engaged in- a vicious assault upon [the deputy], ... left it within the jury’s province to infer, if it saw fit, not alone that these defendants shared in the intent of the slayer, but also that they aided and abetted him in his unlawful undertaking.” Id. (citing Woolweaver v. State, 50 Ohio St. 277 , 34 N.E. 352 , 353 (1893)). Pertinent here, the court so held even though it appears there was no evidence that the defendants (or anyone else) knew with particularity of the presence and participation of the sheriffs actual killer or took particular notice of everyone who populated the mob.
In State v. Kukis, 65 Utah 362 , 237 P. 476 (1925), an armed mob of 65 to 100 striking laborers, including the defendant, fired on a railroad car containing management representatives. One of the bullets, fired by an unknown member of the mob, struck a railcar worker and killed him. The court held that there was:
[A] just inference that every one of the crowd ... was there for a common and unlawful purpose, and participated or aided and abetted in the assault.... There thus is evidence to justify a finding of combination or confederacy or concert of action of this armed crowd or mob ... that all who were members or part of such crowd or mob . i. aided or abetted therein; and though the evidence does not show whether it was or was not the bullet shot by the defendant or by another member of the mob which' killed the deceased ... the jury was justified in finding him guilty.....
Id. at 479 .
In People v. Cooks, 253 Ill.App.3d 184 , 192 Ill.Dec. 405 , 625 N.E.2d 365 (1993), the murder victim and defendant belonged to enemy gangs. Following an argument between members of the two gangs, the defendant followed the victim as he entered a tavern vestibule. The defendant “ran up to the front of the tavern and fired [his] gun through the [tavern] window, striking-[the victim] in the leg.” Id. 192 Ill.Dec. 405 , 625 N.E.2d at 367 . “The arm of an unidentified individual then stuck a shotgun through the tavern door, and fired it once, striking [the victim] in the stomach and killing him.” Id. 192 Ill.Dec. 405 , 625 N.E.2d at 367-68 . The person to whom “the arm” belonged was never identified. Id. 192 Ill.Dec. 405 , 625 N.E.2d at 368 .
Cooks argued on appeal that “the State failed to prove that' he solicited, aided, abetted or agreed or attempted to aid the unknown, unidentified person who shot and killed [the victim].” Id. The Illinois court stated that the “intent to promote or facilitate the commission of a crime can be shown by evidence that the defendant shared the criminal intent of the principal or that there was a common design or community of unlawful purpose.” Id. 192 Ill.Dec. 405 , 625 N.E.2d at 368 . The court concluded that “the evidence ... sufficiently demonstrated] a common design and a community of unlawful purpose between the defendant and the second unidentified individual,” id. 192 Ill.Dec. 405 , 625 N.E.2d at 370 , and that it was logical to conclude that the defendant aided the second unidentified shooter “by virtue of his shooting the victim first, thereby making [the victim] more vulnerable and prone to a second attack.”. Id. 192 Ill.Dec. 405 , 625 N.E.2d at 369 . The court held that the “[defendant's first shot facilitated the second [shot by the “arm”] and, therefore, the offense.” Id.
The reasoning in Ochoa, Kukis and Cooks is relevant here, because there was evidence from which the jury could infer that Harris and Tann were aware that other gang members, too, were shooting at Harrison, prompted by the altercation between Harrison and Tyndle- Under the *444 rationale of these cases, even if Tann and Harris were not aware of the presence and participation of each one of the 22nd Street crew-member shooters and did not' know who fired the fatal shot, they could be held liable as aiders and abettors of whichever other crew-member shooter— including Foreman — was the principal (whose action was facilitated- and encouraged by Harris’s and Tann’s own actions).
Haynes v. Commonwealth, 515 S.W.2d 240 (Ky.1974), a case discussed by our dissenting colleague, is also helpful .to our analysis. The question addressed in that case was, “under what circumstances does, a person engaged in an affray become an aider and abettor of another who intervenes uninvited, even assuming that they ‘share the criminal intent or purpose’’’ (quoting Whitt). The facts were that “appellants John Robert and Tounsel Haynes[ ] were engaged in ... a ‘shootout’ with William Caudill” when their father, “appellant Joe Haynes[,] armed himself with a rifle, went to the scene of the affray, and shot and killed Caudill.”, 515 S.W.2d at 240-241 . All three Hayneses, were indicted for murder and found guilty of voluntary manslaughter. Id. at 241 . The Court of Appeals of Kentucky held that the evidence did not justify the sons’ conviction of the father’s act, reasoning that there was “no evidence from which it may be reasonably inferred ... that either of the sons "sent for the father” and “no evidence even that John Robert "knew he had arrived until after the killing.” Id. Further, the court reasoned, “the fact that Tounsel may have provoked the encounter” “would not itself amount to assistance or encouragement.” Id. Here, by contrast, the evidence was not merely that Harris and Tann provoked Foreman’s encounter with Taylor and Mackey. Rather, theré was evidence from which it could be inferred (1) that Harris’s and Tann’s action in shooting at Harrison was an invitation to (i.e., a “sending for”) 22nd Street crew members (who, as discussed above, were participants in an overall conspiracy “to assault and kill anyone whose interests were contrary to those of [appellants] and their |associates”) to come and' support Harris’s and Tann’s efforts; and (2) that Harris and Tann knew' before the fatal shot was fired that other 22nd Street crew members were in fact joining the affray (even though there was no evidence that they knew that Foreman in particular was one of the participants).
In other words, contrary to our dissenting colleague’s argument, the Kentucky court’s decision in Haynes does not undercut our argument that Tann and Harris could be found guilty of aiding and abetting Foreman’s shooting of James Taylor. Given that all three individuals shared the' same mens rea to shoot Harrison and the evidence" demonstrated that Tann and Harris reasonably knew that their actions would incite other 22nd Street crew members to come to their aid, we think the situation here is more analogous to those in Ochoa and Kuhis, where courts concluded that an individual participating in a criminal mob could be found guilty of aiding and abetting the commission of a murder by k member of the mob, even if the aider did not know who exactly from the mob did the actual killing. In fact, even our dissenting colleague agrees that, in instances of a criminal mob, a person who “knowingly attaches himself to a large group” may be considered to have aided and abetted other members of the group to commit illegal acts even though “he may not know who is in the group or who the principal offenders in it are.”
We believe that the case law supports the following propositions rooted in the common law and incorporated in our-aiding-and-abetting statute: (1) the aider *445 and abettor must have the mens rea of the principal actor, see Wilson-Bey, 903 A.2d at 822 , and must have the “purposive attitude towards” the criminal venture described in Peoni, 100 F.2d at 402 ; (2) a defendant is not responsible for the actions of a third-party who, wholly unassociated with and independent of the defendant, enters into a crime when there is no community of purpose between the defendant and the third-party, Landrum, 96 S.W. at 588 ; 25 however, (3) the defendant need not know of the presence of every participant in a group crime (including the principal) in order to be found guilty under an aiding-and-abetting theory of liability, Ochoa, 72 P.2d at 617 ; and (4) where the criteria in (1) above are met and the evidence at trial proves that the defendants by their action, foreseeably (and thus, the factfin-der may conclude, intentionally) 26 incited action by a third party who shared in then-community of purpose, aiding-and-abetting liability may be found. Cooks, 192 Ill.Dec. 405 , 625 N.E.2d at 369-70 ; Kukis, 237 P. at 479 . These principles satisfy the criminal intent element required by aiding-and-abetting liability and do not run afoul of Wilson-Bey or Peoni . 27
Applying these principles to the facts of this case, we think it is clear that appellant Tann, appellant Harris, and Robert Foreman all possessed the same criminal state of mind: the premeditated intent to kill Omar Harrison. This intent shifted to the killing of James Taylor, and the assault of Bernard Mackey, under the ' theory ' of transferred intent as recognized in orn-ease law and hot in dispute here. (Wesley ) Williams v. United States, 881 A.2d 557, 567 (D.C.2005); O’Connor v. United States, 399 A.2d 21, 25 (D.C.1979).
The evidence also established a “community of purpose” between Tann, Harris, and Robert Foreman, reflecting a uniform and common design among the three shooters. When word of the confrontation between Alphonce Little’s girlfriend and Omar Harrison spread through 22nd Street, Tann, Harris, and Little rushed with other gang members toward Harrison in anticipation of a confrontation. The evidence supported a finding that appellants were well aware that other gang members were in the area and part of the crowd that was involved in the general attack. Both appellants knew from past *446 experience while in the 22nd Street Crew that once they began committing acts of violence, other coconspirators would join them. In fact, the conspiracy among members of the 22nd Street Crew included the agreement to,commit violence against outsiders, like Harrison, who failed to afford the proper respect to the gang and its territory, and whose “interests” were contrary to that of the gang. Not surprisingly, this is exactly what happened when Foreman (who we assume was the principal in this incident) opened fire in response to seeing his fellow coconspirators engaged in an attack' on Harrison as their response to Harrison’s hostility toward Tyndle. 28
We cannot agree with Judge Glickman that, by looking to the foreseeability to the defendant that his criminal conduct will incite participation by a third party acting pursuant to a community of purpose, we have expanded the doctrine of aiding and abetting liability' “without affording the parties the opportunity to address” the “expansion],” and that we have thereby been “unfair to the parties.” Both the factor that, we refer to as “community of purpose” and foreseeability are factors whose relevance the parties debated in the trial court from the outset. For example, Harris’s counsel argued that the aider and abettor must have “a connection with the principal” and that there must be “an association between the people helping each other,” Counsel also discussed with the trial court whether the principal and the aider/abettor could have “totally different motives for killing Mr. Harrison.” And, in Harris’s brief on appeal, he decries the absence of a “relational limiting factor” for aiding and abetting liability.
The parties also argued in the trial court about the relevance of the foreseeability of the principal’s actions. For example, in the course of a colloquy with the trial court about accomplice liability instructions, Harris’s counsel, joined by Tann’s counsel, argued that for such liability, “it would have to be reasonable and foreseeable that, “if you’re doing something,” “an unknown person ... would respond by shooting.” Further, while Harris’s counsel argued that the evidence did not support an aiding and abetting instruction because “[t]here’s no way Mr. Harris could have known that somebody across the street who[m] he didn’t know was. there ... would have suddenly joined in on this shooting,” he explicitly understood that the government “keeps trying to say well, yeah, because he’s on 22nd Street.” In other words, counsel understood that one argument, being advanced by the government was that because the shooting took place on 22nd-Street-crew turf— where the ethos was for crew members to work together “to assault and kill anyone whose interests were contrary to those of [crew members] and their associates”— Harris and Tann had every reason to ex *447 pect that when they started shooting, other crew members who happened to be in the arpa would start shooting as well. Defense counsel argued that Foreman made “a completely independent decision to start shooting” and that there was no way Harris and Tann “could anticipate that someone he didn’t know was., even present would do anything, much less start shooting. They made this argument while anticipating that “the government may argue that [the defendants] should have know[n] that [their] act of shooting at a person who had been assaulting a pregnant woman [Tyndle] would have incited others to shoot as well. And, in fact, the government did argue, in opposing Harris’s, motion for judgment of acquittal. (1) that because Harris, , Tann, and. Foreman were “all members of the charged conspiracy,” there was “no legitimate argument to make that [they] were acting independently of one another”; 29 (2) that because there was an “over-arching conspiracy,” 30 crew members “immediately knew what to do 31 and reacted in a way to protect the girlfriend of their co-conspirator”; (3) that Foreman “did exactly what [defendants] had every reason .to believe [he] would do”; and (4) that, in light of Foreman’s membership in a conspiracy that “will protect ... their members at all costs,” “[i]t was certainly foreseeable that when Harris [and Tann] began shooting ..., other co-conspirators, [they] may not have known exactly who, would assist in [their] efforts.” Thus, is fair to say that one express theory- of the prosecution was that Harris and Tann foreseéably (and thus intentionally, the jury could find) encouraged an attack on Omar Harrison by a group that included Foreman. 32
Moreover, in a "memorandum regarding proposed jury instructions, Harris’s counsel told "the court that the defense had looked for but had been “unable to find a fact pattern matching the one in this case,” but found cases “across jurisdictions” (purportedly) requiring, for joint liability, “that the defendant had knowledge of the other principal involved in the event.” Having undertaken such a search, appellants cannot be surprised "that this court, too, has scoured common-law cases on accomplice *448 liability and has relied on factors that these cases recognized as relevant. The case law discussed' herein' was equally available to the parties as part of their research. ’ '
All the foregoing examples show that thé parties had ample opportunity to debate, and did debate, the relevance of the factors on which we rely for our holding.
Judge Glickman’s analysis suggests that after Peoni and Wilson-Bey , Harris and Tann may not be found liable for the foreseeable shooting their actions inspired. But what Peoni established is that “the probability that the forbidden result would follow upon the accessory’s conduct” does not suffice; rather, to incur aiding and abetting liability, the defendant must “in some sort associate himself with the venture, ... participate in it as in something that he wishes to bring about, ... seek by his action to make it sueceed[,]” and have a “purposive attitude towards it.” 100 F.2d at 402 . 33 The evidence at trial amply supported a finding that Harris and Tann each associated himself with the vendetta against Harrison, participated in it as in something that he wished to bring about, sought by his action to make it succeed, and displayed a purposive attitude towards it, as Peoni requires for aiding and abetting liability. What Wilson-Bey and its progeny require is that the aider and abettor share the mens rea of the principal; it is not enough for aiding and abetting liability that a defendant could reasonably have foreseen what the principal would' do. Here, there is no dispute that the evidence sufficed to show that Harris and Tann shared Foreman’s intent to kill Harrison. The question is whether, sharing that intent, they may be held liable under an aiding and abetting theory for initiating a shooting incident that they had reason to foresee would cause (and did cause) other gang members to join in the shooting. Neither Peoni nor Wilson-Bey requires us to answer that question in the negative. 34
We would reach a different conclusion had there been no evidence establishing community of purpose between Tann, Harris, and Robert Foreman, and if the evi *449 dence had not supported an inference that Harris and Tann knew'that fellow 22nd Street crew members were joining in the assault and that it was foreseeable to Harris and Tann that any fellow crew members who were in the area would do so. If the facts were such’ as those in Landrum , where there was no-evidence of a community of purpose between the defendant aider and abettor.and the principal, then the evidence would be insufficient. But the evidence was that Foreman, a gang member who lived around 22nd Street and was acquainted with Harris and shared guns with him, was about to step in to respond to the Harrison-Tyndle altercation until he perceived that Harris and others “got it,” and then joined in the shooting when “getting it” — the common purpose and design — escalated to that level. And, as in Cooks , Tann’s and Harris’s actions of initiating the shooting, and rendering the target more vulnerable, facilitated and encouraged Foreman’s joining in the gunfire to help his 22nd Street Crew cohorts. 192 Ill.Dec. 405 , 625 N.E.2d at 369-70 ;- The fact that Tann and Harris were unaware of Foreman’s presence until after Foreman (presumably) fired the fatal shot does not make the government’s evidence .legally insufficient. .
The dissent derides our reasoning as a “novel theory of [our] own devising.” We think the cases discussed above, decided decades (and, in one instance, a century) ago, show that our theory is not at all novel. Rather.than of our own devising, it is authorized as an incremental development of the common law, from reasoning that is implicit in the decades-old cases we have cited. 35 The fact that there seems to be no reported case that has articulated the theory precisely as we have is hardly surprising because, as the trial court and the parties all agreed, the facts of this case are “very odd” and “rare.” And, however imprecise the rule we announce may be, it is anchored to, and limited in application by, the detailed and unusual facts of this case.
Accordingly,, for the foregoing reasons, we deny appellants’ claims related to the sufficiency of the evidence. We also deny appellants’ claims related to the curtailment of their closing arguments when the trial judge prevented them from arguing that aiding-and-abetting liability required the government to prove that the accomplice intended to help a known and particular principal commit the charged offense. In this respect, the trial judge acted correctly because he prevented a misstatement of the law. See United States v. Gaines, 690 F.2d 849, 858 (11th Cir.1982) (no error where the trial “court properly prevented defense counsel from arguing to the jury a false legal proposition”); see also Hager v. United States, 791 A.2d 911, 913 (D.C.2002) (trial court acts properly where it “exclude[s] ... those statements that misrepresent the evidence or the law”).
*450 • However, we conclude that the trial judge committed instructional error when he told the jury that a.defendant can be found liable as an aider and abettor “if [he] rknowingly aid[s] and abet[s] the crime without knowing who else is doing it,” without requiring that the jury also find a community of purpose between the principal and. the accomplice. Nevertheless, using any 'test for error, we conclude that appellants were not harmed. The jury convicted both Tann and Harris of Count 1 of the indictment, which alleged that appellants were involved in a criminal conspiracy with other members of the 22nd Street Crew to kill persons, such as Omar Harrison, whose “interests” were contrary to that of the coconspirators. Count 1 included Foreman as a named coconspirator. Given the jury’s finding on the conspiracy count, and given the other evidence presented regarding the behavior of Robert Foreman, Harris, Tann, and other gang members at the time of the shooting of James Taylor and Bernard Mackey, we find that there is no reasonable possibility, even had the jury found that Foreman was the principal in the James Taylor-Bernard Mackey incident, that it would have failed to find that Tann, Harris, and Foreman were part of a group that shared the common purpose and design to murder Omar Harrison and that Harris and Tann intended to aid any of their fellow crew members who were present and participating in doing so. 36 See Fortson v. United States, 979 A.2d 643, 661 (D.C.2009); Tyree, 942 A.2d at 638-40 ; cf. Wilson-Bey, 903 A.2d at 844-45 . Therefore, appellants are entitled to no relief.
D. Beaver’s Conviction: Obstruction of Justice
Count 25 of the superseding indictment in this case read as follows:
Between on or about April 30, 2004, and on or about July 11, 2006, within the District of Columbia, Lannell N. Cooper ... Michael D. Tann .., Dajuan D. Beaver ... and Brian K.. Gilliam ... corruptly persuaded, and endeavored to cause or induce, Laquanda Johnson, with the intent to persuade her to influence, delay,' and prevent the truthful testimony of her sister, Kyara Johnson, a witness in an official proceeding, to wit, United States v. Lannell Cooper ... then pending in the Superior Court for the District of Columbia.
On appeal, appellant Beaver makes the argument that although there was testimony at trial that he was involved in the search for both Johnson sisters in the run-up to appellant Cooper’s 2006 trial in an effort unlawfully to influence their testimony separately, there was insufficient evidence admitted to prove that he committed the particular actions alleged by Count 25, i.e., that he attempted to use Laquanda as an instrument to influence Kyara’s testimony against Cooper. In substance, Beaver alleges that what was charged was at variance with the evidence elicited at trial.
Alphonce Little testified that, shortly after Cooper was confined on April 30, 2004, for the Terrence Jones murder, Beaver told Little that Kyara Johnson was cooperating with the government. Moreover, Little stated that Beaver also told him 17th Street gang members Brian Gilliam and Tyrell Hargraves, close friends of Cooper and allies of the 22nd Street Crew, would be “handling the situation” with regard to Kyara. Little also testified that he saw Beaver meet with Gilliam and Har-graves multiple times on 22nd Street after Cooper was arrested. • Around this time, Beaver also expressed to Little his opinion *451 that the witnesses who were snitching on Cooper “[s]hould be dead.” While in jail, Cooper told Little over the phone that a friend of his was coming to 22nd Street and Little should identify Kyara for him. On the same day as Alphonce Little’s conversation with Cooper, Gilliam came to the neighborhood and met Little in a parking lot. Gilliam was seated in a car with a gun in his lap and asked Little “Where that bitch at[?]” and to “point [Kyara Johnson] out.”
Furthermore, gang ally Dewey Chappell testified that Beaver told him that both of the Johnson sisters were “supposed to be testifying for the government.” Chappell then traveled to 22nd Street ten to twenty times in an attempt to find the sisters with the intent to offer them marijuana and money “to not testify” or to “change their statement.” Because Chappell did not know what the sisters looked like, Beaver tried to help him find them.
There was also testimony at trial about the nature of the relationship between the sisters. Laquanda Johnson, as the older sister, was known to be “a sort of middleman” or “gatekeeper” between Kyara and persons seeking access to her, at least for members of the 22nd Street Crew who were looking for Kyara in the aftermath of the Terrence Jones murder. An investigator assigned to Cooper’s defense team for his 2006 trial for the murder of Terrence Jones testified during the instant case that his “best chance to speak to [Kyara] was through [Laquanda].”
Although Beaver styles his claim as one attacking the sufficiency of the evidence, it is better cast as an argument alleging a fatal variance between the proof and the pleadings. See (Royce) Robinson v. United States, 697 A.2d 787, 788-89 (D.C.1997). Beaver does not dispute that the government presented sufficient evidence that Beaver was looking for both sisters in order to prevent the truthful testimony of at least one of them. Beaver’s complaint is that the criminal offense did not happen in the way alleged in the indictment — that he did not attempt to persuade Laquanda to influence Kyara’s testimony.
Two kinds of problems arise when there is a deviation from an indictment. An. amendment of. the indictment occurs when the charging terms .of the indictment are altered.... A variance occurs when the charging terms of the indictment are left unaltered, but the evidence offered at trial proves facts materially different from those alleged in the indictment.
(Terrence) Ingram v. United States, 592 A.2d 992, 1005 (D.C.1991) (emphasis omitted). A “constructive amendment of the indictment can occur if, and only , if, the prosecution relies at the trial on a complex of facts distinctly different from that which the grand jury set forth in the indictment.” Baker v. United States, 867 A.2d 988, 999 (D.C.2005) (emphasis omitted) (quoting Carter v. United States, 826 A.2d 300, 306 . (D.C.2003)). In a variance, the proof at trial does not show such a distinctly different “complex of facts,” nor does the proof differ from the “essential elements” of the offense charged in the indictment. Marshall v. United States, 15 A.3d 699, 710 (D.C.2011). “In contrast with an amendment, a variance will not warrant dismissal except upon a showing of prejudice.” (Terrence) Ingram, 592 A.2d at 1006 (internal quotation marks omitted). “A variance is prejudicial if it either deprives the defendant of an adequate opportunity to prepare a defense ... or exposes him to the risk of another prosecution.” Zacarias v. United States, 884 A.2d 83, 87 (D.C.2005).
Here, because the purported discrepancy between the proof elicited at trial *452 and the language of Count 25 did not show a “complex of facts distinctly different from- that which the grand jury set forth in the' indictment,” the issue is one of a potential prejudicial variance. A" constructive amendment is not found where the proof at trial reflects the same facts as those alleged in the indictment regarding time, place, individuals, and core criminal behavior. See Carter, 826 A.2d at 306-07 .
Both the evidence at trial and the indictment reflected events that occurred at the same time (between the date of Cooper’s arrest for the Terrence Jones murder and Cooper’s 2006 conviction), in the same general location, by the same individuals (22nd Street Crew members, including Beaver, and other gang allies), and targeting the same ultimate victim, Kyara Johnson. See id. at 306 . Additionally, both the indictment and the evidence at trial showed the same overall substantive criminal behavior: an attempt by Beaver and others to commit the offense alleged by the grand jury — to intimidate Kyara Johnson for purposes of affecting her testimony and the outcome of Cooper’s 2006 trial. See Baker, 867 A.2d at 999 . The possible disparity between the indictment and the evidence was in manner of the offense only.
Moreover, as Beaver did not raise the issue of either constructive amendment or prejudicial variance at trial, we must review his claim under the plain error standard. 37 “Under the plain error doctrine, appellant must establish (1) that the trial court committed error; (2) that the error was plain, i.e., clear or obvious; (3) that the error affected substantial rights; and (4) that a failure to correct the error would seriously affect the fairnéss, integri-' ty, 'or-public reputation of judicial proceedings.” Marshall, 15 A.3d at 710 (internal quotation marks and emphasis omitted) (citing United States v. Olano, 507 U.S. 725, 732-36 , 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993)).
We find no plain error. First, we are not convinced that the trial court commit-, ted “clear” or “obvious” error by failing to identify, sua sponte, that the variance between the government’s proof and the indictment was material. The evidence was that Beaver repeatedly attémpted, on behalf of Cooper, to identify Kyara and La-quanda Johnson for gang members and allies who were looking to obstruct justice. Considering this evidence in the context of Laquanda’s reputation in the community as the “gatekeeper” for persons seeking to access Kyara, the court (and the jury) could have reasonably inferred: that' Kyara was Beaver’s primary focus, that his interest‘in finding Laquañda was fueled by his concern that Kyara would give testimony unfavorable to Cooper, and that Beaver wanted to use Laquanda to influence Kyara’s testimony. See Marshall, 15 A.3d at 711 (variance not plain error where the factual theory pursued by the government at trial “was hot entirely divergent from 'that proffered by the government before trial”).
Moreover, even assuming that any error was clear or obvious, Beaver has not identified how the variance resulted in surprise, lack of notice, risk of double jeopardy, or some other way in which his substantial rights were impacted. Carter, *453 826 A.2d at 307 (“A variance may be prejudicial if ... the accused ... was so surprised by the proof that he was unable to prepare his defense adequately.”) (internal quotation marks omitted); Pace v. United States, 705 A.2d 673, 677 (D.C.1998) (“A variance may prejudice a defendant such as by (1) depriving him of adequate pretrial notice of the details of the charge against which he must defend, and/or (2) depriving him of protection against re-prosecution.”). Nor does he contend that his defense, which was that the testimony of Alphonce Little and Dewey Chappell was untrue, would have been different if there had been no variance. Zacarias, 884 A.2d at 89 . Finally, we are. confident that there was no error that seriously affected the fairness, integrity, or public reputation of judicial proceedings, especially given that Beaver now concedes that the evidence was sufficient that he did, in fact, obstruct justice with regard to both of the Johnson sisters. See Marshall, 15 A.3d at 711 .
E. Beaver’s Conviction: Carrying a Pistol Without a License (“CPWL”)
Count 47 of .the superseding indictment charged that on or about July 11, 2006, the day of Laquanda Johnson’s murder, Beaver carried a pistol without a license. Alphonce Little testified that shortly before he killed Laquanda, he saw Beaver with “á nine” (the parties agree that this referred to a 9mm semi-automatic pistol) in his possession. Little further testified that he and Beaver initially planned that Beaver would- shoot Laquan-da arid Kyara Johnson, and that Beaver declared that “he whs - going to do it[;] he was going -to kill them” because “they [the Johnson sisters] got to go.”
However, Beaver eventually persuaded Alphonce Little to carry out the shootings instead. Little obtained a different weapon, a “.45,” 38 which he used to kill Laquan-da Johnson and shoot Keisha Frost, Following the shooting, Little, Beaver, and Rushing, traveled to Maryland where Beaver took the murder weapon, j and the hoodie that Little had been wearing, and hid these items near the porch of his mother’s house. 39 The 9mm pistol that Beaver was carrying earlier in the evening was never recovered by investigators.
Beaver argues that his CPWL conviction was based on insufficient evidence because there was no evidence, direct or circumstantial, that, his 9mm pistol was operable as required by the law at the time of trial. 40 In re R.S., 6 A.3d 854, 859 (D.C.2010). Beaver specifically contends that there was no demonstration by the government of his “active reliance” on the weapon which might constitute circumstantial evidence of operability.
In cases such as this one, where there is no evidence that the defendant fired the firearm, its operability may be established by circumstantial evidence, including evidence that “affirmatively demonstrated [the defendant’s] belief that it was operable.” Id. at 860 . This court held in In re R-S- that evidence that the *454 defendant displayed a firearm for the purpose of threatening a victim — conduct that was accompanied by verbal threats to the effect that “if you step, out here,, you see what I got” — was sufficient to demonstrate the defendant’s reliance on the op-erability of the firearm. Id. Similarly, this court has held in other cases that evidence of operability was sufficient where: one defendant was “waving his gun” while a second defendant “stuck a gun into [the victim’s] back”; a defendant was seen “displaying a gun to back up his demands”; ¡and a defendant was identified “wield[ing a] sawed-off shotgun in a menacing manner, knocking on the car window and waving it at [the victims].” Peterson v. United States, 657 A.2d 756, 763 (D.C.1995); Bartley v. United States, 530 A.2d 692, 693-94 (D.C.1987); Morrison v. United States, 417 A.2d 409, 413 (D.C.1980).
In those cases, the inference of the assailants’ reliance on their weapons’ opera-bility rested on reasoning that, through their display of the weapons, the assailants “intended that their victims believe[ ] that the weapons were capable of being discharged.” Bartley, 530 A.2d at 698 . There is no such evidence in this case. During the period of time when Beaver was supposed to commit the murders personally, he never indicated that he would use his 9mm. And once Beaver persuaded Alphonce Little to carry out the shootings, Beaver did not offer Littlé the use of his 9mm; instead, Beaver stood by while Little and Dwayne Wright retrieved a different gun from inside Wright’s house.
This set of circumstances does not support an inference of operability. Price v. United States, 813 A.2d 169, 173 (D.C.2002) (evidence was insufficient to support CPWL conviction’ where defendant held a weapon at his side while his companions shot and killed- their victim because “(1) the witnesses testified that Price never pointed his weapon at anyone; and (2) he was never left on his own to control the victim without the assistance of his cohorts, who clearly had operable weapons.”). In this case, like in Price , “[t]he government simply failed to present evidence establishing either that [Beaver] fired his weapon, pointed it, or otherwise affirmatively displayed a belief that his weapon was operablé[, and] the evidence here tends to dispel the notion that [Beaver’s] weapon could fire.” Id. Therefore, we vacate Beaver’s CPWL judgment of conviction.
F. Cooper’s Conviction: Laquanda Johnson Murder Under Pinkerton
Cooper makes a multi-pronged attack on his conviction for the premeditated murder of Laquanda Johnson under a Pinkerton theory of liability. First, he argues that the murder occurred while he was in prison and that he had no control or influence over the actions of those directly involved. Therefore, the murder was not reasonably foreseeable to him as required for Pinkerton liability. Second, he argues that the application of this form of liability was unfair to him, and violated his due process rights on the facts of this case, because “it [was] based on a charged ‘conspiracy’ that [was] far too broad to support the application of a vicarious liability theory.” 41 Finally, his brief implicitly argues that he suffered from selective prosecution with regard to this particular charge. 42
*455 In determining whether a co-conspirator may be held liable for commission of a substantive offense that the defendant did not directly commit, the government must prove “that an agreement existed, that a substantive crime was committed by a co-conspirator in furtherance of that agreement, and that the substantive crime was a reasonably foreseeable consequence of the agreement between the conspirators.” Collins v. United States, 73 A.3d 974, 982 (D.C.2013). The government is not “required to establish that the co-conspirator actually aided the perpetrator in the commission of the substantive crime, but only that the crime was committed in furtherance of the conspiracy.” Wils on-Bey, 903 A.2d at 840 (citing Pinkerton, 328 U.S. at 646-47 , 66 S.Ct. 1180 ).
Here, the conspiracy among Cooper and other members of the 22nd Street Crew between 2003 and 2006 included the agreement to obstruct justice, and the evidence showed that the coconspirators pursued that goal during the period of time leading up to Cooper’s 2006 trial. The record shows that. Cooper personally approached Laquanda Johnson and. unsuccessfully bribed her with drugs and money in an attempt to influence Kyara Johnson’s testimony at that trial. The evidence also revealed that Cooper contacted multiple gang members in order to persuade the sisters (particularly Kyara) to change their statements and some of these efforts contemplated the use of force. :
Moreover, there was evidence to show that the conspiracy to obstruct justice and prevent the Johnson sistérs from doing further damage to the 22nd Street Crew did not end after Cooper’s 2006 Conviction. Alphonce Little testified that he murdered Laquanda, and intended to murder Kyara, because they might testify in the future against “[a]nybody around 22nd Street, it could [be] me.” Little stated that because the sisters “told on a murder[, t]hey could have told on me selling drugs [or] whatever.” Because appellants in this case had yet to be charged with conspiracy, and appellants other than Cooper had yet-to be charged for the Terrence Jones murder-Richard Queen assault, it was foreseeable that the Johnson sisters would continue, notwithstanding Cooper’s conviction, to have the potential to harm the gang. 43
Furthermore, the conspiracy charged in this case also encompassed the goal of killing “snitches” whose actions demonstrated “interests [that] were contrary to those of the defendants and their associ-átés.” In accordance with the overarching “rule” enforced by the 22nd Street Crew that violence was to be inflicted on “snitches,” 44 it was foreseeable that the Johnson sisters, by cooperating with the government, would be subject to retaliation by *456 the members of the 22nd Street Crew who had entered into the charged conspiracy. When Little, Beaver, and fellow 22nd Street Crew member Dwayne Wright discovered that the sisters had returned to 22nd Street, they determined, in accordance with the retaliatory goal of the conspiracy, that the sisters should be killed because of them cooperation with the government.
The fact that Cooper' was in jail at the time of Laquanda Johnson’s murder does not relieve him of liability under Pinkerton. Gatlin v. United States, 925 A.2d 594 (D.C.2007) provides a useful framework for analyzing Cooper’s claim. In Gatlin, the defendant, who was incarcerated at the time of the murder of a government witness by his coconspirator, challenged the admissibility of the murdered witness’s grand jury testimony under the forfeiture-by-wrongdoing doctrine. 45 We held that “[ijt'Was reasonably foreseeable that intimidation of and threats to witnesses could result in the murder of a witness.” Id. at 600 . The facts of Gatlin showed that the defendant, while in prison, communicated with his associates about disposing of witnesses and, much like the facts of this case, pressuring government cooperators “to change their story.” Id. at 598 .
Taken together, the evidence pertaining to the coconspirator’s goals of obstructing justice and inflicting violence upon snitches — persons with interests contrary to those of the 22nd Street Crew members— demonstrated that Laquanda Johnson’s murder was reasonably foreseeable to Cooper, despite the fact that he was in jail at the time. Little’s act of murdering Laquanda was within the scope of the conspiracy to obstruct justice by- preventing government'cooperators, such as Laquan-da and Kyara, from testifying against the 22nd Street Crew, and by retaliating with violence against persons who collaborated with the government against the gang; Collins, 73 A.3d at 982-84 ; Roberson v. United States, 961 A.2d 1092, 1095 (D.C.2008); Gatlin, 925 A.2d at 600 . We further conclude tha

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9820201. Public record. Not legal advice.