Petition for Writ of Certiorari — Paul Anthony Ashby, Petitioner v. United States

APPENDIX

TABLE OF CONTENTS

Page

APPENDIX A: Opinion of the District of Columbia Court of Appeals

(Jan. 10, 2019) ................................................................................................... 1a

APPENDIX B: Argument and Ruling on Pinkerton Instruction in the District of

Columbia Superior Court, pp. 5–10

(July 31, 2013) ................................................................................................. 23a

APPENDIX C: Order of the District of Columbia Court of Appeals Denying

Rehearing and Rehearing En Banc

(Jan. 27, 2021) ................................................................................................. 30a

APPENDIX D: Relevant Excerpts from Ashby’s Brief in the District of Columbia

Court of Appeals, pp. 3–27, 51–64

(Dec. 11, 2015) ................................................................................................. 32a

APPENDIX E: Relevant Excerpts from Government’s Brief in the District of

Columbia Court of Appeals, pp. 111–18

(May 26, 2016) ................................................................................................. 72a

Ashby v. United States, 199 A.3d 634 (2019)

199A.3d 634

District of Columbia Court of Appeals.

Paul AnthonyASHBY, KeithA. Logan,

and Merle Vernon Watson, Appellants,

v.

1a

Appendix A

Procedural Posture(s): Appellate Review.

*639 Appeals from the Superior Court of the

District of Columbia (CFl-3069-10, CFl-21619-10, and

CFl-23411-11) (Hon. Herbert B. Dixon, Jr., Trial Judge)

Attorneys and Law Firms

UNITED STATES, Appellee.

Nos. 14-CF-414, 14-CF-424, and 14-CF-669

I

Argued December 19, 2016

I

Decided January 10, 2019

Synopsis

Background: Defendants were tried together and convicted

in the Superior Court, Nos. CFI-3069-10, CFI-21619-10, and

CFl-23411-11, Herbert B. Dixon, Jr., J., of various crimes

including kidnapping, felony murder, armed robbery, and

several counts of possession of a firearm during a crime of

violence or dangerous offense (PFCV). Defendants appealed.

Holdings: The Court of Appeals, Nebeker, Senior Judge, held

that:

the trial court's refusal to provide defendants' requested

missing evidence jury instruction was not an abuse of

discretion;

basement tenant had actual or apparent authority to consent

to search of basement;

testimony from government witness about two conversation

he had with defendant were admissible as statements against

penal interest;

the trial court's order precluding bias cross-examination of

government witness regarding an unrelated murder was not

an abuse of discretion; and

Alice Wang, with whom Samia Fam was on the brief, for

appellant Paul Ashby.

Thomas T. Heslep, Washington, D.C., for appellant Keith

Logan.

Margaret M. Cassidy for appellant Merle Watson.

James A. Ewing, Assistant United States Attorney, with

whom Channing D. Phillips, United States Attorney at the

time the brief was filed, and Elizabeth Trosman, Elizabeth

H. Danello, Michael Liebman, and Erik Kenerson, Assistant

United States Attorneys, were on the brief, for appellee.

Before Blackbume-Rigsby, Chief Judge,* Fisher, Associate

Judge, and Nebeker, Senior Judge.

Chief Judge Blackbume-Rigsby was an Associate

Judge at the time of argument. Her status changed

to Chief Judge on March 18, 2017.

Opinion

Nebeker, Senior Judge:

*640 Appellants Paul Ashby, Keith Logan, and Merle

Watson appeal, together and separately, various convictions

related to the kidnapping and murder of Camell Bolden and

the shooting of Danielle Daniels on December 30, 2009. The

three were jointly tried before a jury in July and August of

2013, and were found guilty of a majority of the charged

offenses. Given the factual and legal complexities, the number

of issues, and the length of this opinion, we set forth a table

of contents below.

the prosecutor's closing argument, where he referred to

codefendants as "hardened killers" and "stone-cold killers"

and urged the jury to find defendants guilty in order to

vindicate the victim's suffering, did not constitute plain error.

I. FACTUAL BACKGROUND

Affirmed in part; remanded in part.

II. ANALYSIS

A. Alleged Brady Violations and Sanctions

TABLE OF CONTENTS

WEST AW © 2021 Thomson Reuters. No claim to original U.S. Government Works.

Ashby v. United States, 199 A.3d 634 (2019)

B. Motions to Suppress Evidence

i. The Search of70 W Street, N.W.

ii. Ashby's Cell phone Records

C. Admission of Out-of-Court Statements

i. Statements Against Penal Interest

ii. The State-of-Mind Exception

iii. Denial of Severance

D. Winfield Defense and Bias Cross-Examination

i. Winfield Defense

ii. Bias Cross-Examination

E. Sufficiency of the Evidence for the Daniels Shooting

Conviction

F. The Pinkerton Instruction

G. The Prosecutor's Closing Argument

H. Logan's Unannounced PFCV Conviction

I. Merger of Convictions

III. CONCLUSION

I. FACTUAL BACKGROUND

On December 30, 2009, the victims, Carnell Bolden and his

girlfriend Danielle Daniels, drove to W Street in the northwest

quadrant of the District ofColumbia. At approximately six in

the evening, Ms. Daniels dropped off Mr. Bolden so he could

briefly visit some friends.

Appellant Logan and his girlfriend, Queen Williams, lived on

the top two floors ofa house located at 70 W Street, N.W., near

the area where Ms. Daniels dropped off Mr. Bolden. Logan's

uncle, Bruce Adams, was the owner of the home. Derrick

Hill had rented the basement apartment, paying rent to Logan,

from February or March until November 2009. Mr. Hill and

Mr. Bolden were good friends, and Mr. Bolden supplied crack

cocaine for Mr. Hill to sell from the basement apartment.

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Logan was aware of this arrangement, and had purchased

cocaine from Mr. Bolden through Mr. Hill in the past. Logan

also sold heroin out of the top two floors, and used the drug

himself.

After Mr. Bolden exited the car, Ms. Daniels waited in the car.

When Mr. Bolden *641 did not return within ten minutes, as

Ms. Daniels had anticipated, she began calling his cell phone.

When she received no response, she got out of the car and

spent approximately five to ten minutes searching the length

of the street, all the while attempting to call Mr. Bolden, and

saw no one outside. Ms. Daniels then got back into the driver's

seat of her car and shut the door.

Close to 7:00 p.m., Ms. Daniels saw in the driver's side mirror

that someone was approaching the driver's side of the car

from behind. This "dark figure" in a black hooded sweatshirt

"put a gun up to the window and just started shooting." After

the assailant stopped shooting and fled, Ms. Daniels exited

her car, called for help, and, within five minutes, called 91 l.

Her 911 call was placed at about 7:15 p.m. A neighbor on

W Street was looking out her window and saw a "man in

dark clothing with a hood" run down the street, and she

also called 911 in response to gunshots. Ms. Daniels was

subsequently able to receive medical attention and survived

the shooting. However, she was hospitalized for three months

and underwent several surgeries; at the time of trial, she

suffered from nerve damage and loss of use of her left hand.

On the morning of December 31, 2009, a Metropolitan

Police Department ("MPD") officer found Mr. Holden's body

twenty-five feet off the side of the road near the 3000 block

of Park Drive, S.E.; it appeared to have been dragged there.

The cause of Mr. Holden's death was determined to be two

gunshot wounds to the face that appeared to have been fired

at close range. 1 Duct tape covered Mr. Holden's mouth and

eyes, his pants were pulled down, and his feet were bound

by duct tape, packing tape, and electrical cords "consistent

with" having been pulled from a television set. Mr. Bolden

also had multiple injuries, including bruising on his left eye,

his nose, right cheek, and upper lip; hemorrhaging was also

found under the right side of his scalp.

No form of identification was found on Mr.

Bolden's body, but the police were able to confirm

his identity through a fingerprint database.

After searching the 70 W Street house, discussed further in

section 11.B.i below, the police found substantial evidence

WEST AW © 2021 Thomson Reuters. No claim to original U.S. Government Works.

2

Ashby v. United States, 199 A.3d 634 (2019)

establishing that Mr. Bolden had been murdered there. Mr.

Bolden's blood was found on a jacket that Mr. Hill gave to

the police. A piece oftape found on Mr. Bolden's body was a

"fracture match" with a roll found in the basement, showing

that the piece oftape had been tom from that roll. A television

set missing a cord like the one found on Mr. Bolden's body

was also recovered. Additionally, Mr. Bolden's blood was

found in a car which Logan had access to; it had been driven

by Ms. Williams and was found abandoned about five blocks

from the W Street house on January 8 , 2010 , days after the

murder. A neighbor also testified that the car had been parked

around70 W Street in the past.

Substantial evidence also linked appellants to the murder.

Appellants Ashby and Watson had been seen at and around

the 70 W Street house in the weeks leading up to the

murder. Ashby and Watson had a"close" relationship, and, on

December24 ,2009, Watson, Ashby, and Logan were together

for at least forty- five minutes at the70 W Street house. Logan

had called Mr. Bolden twice on December 30 , 2009, at 4 :19

p.m. and5:47 p.m. Watson also called911 from his phone at

6 :44 the evening of December30 , 2009, about thirty minutes

before Ms. Daniels was shot, to falsely report the shooting

of an undercover police *642 officer. 2 Phone records and

location data regarding Ashby's call activity, discussed in

section 11.B.ii below, revealed that Ashby had called Watson

five times between12:59 p.m. and6:27 p.m. the night of the

shooting and murder, from the vicinity of the crime scene,

and an expert testified that, based on the progression ofphone

calls, Ashby's phone had traveled south, towards the area

where Mr. Bolden's body was found.

2

The government argued at trial, and appellants

disputed, that Watson made this call in order to

divert police away from the location where he and

the other appellants were moving Mr. Bolden's

body into a car.

In addition, John Carrington, an acquaintance ofMr. Bolden,

stated that, in November 2009, weeks before Mr. Bolden's

murder, Logan suggested they"rob and kill" Mr. Bolden. Mr.

Carrington turned down Logan's proposition, telling him"hell

no." Melvin Thomas, another acquaintance, stated that, after

the murder, Ashby approached him in a CVS parking lot and

admitted that he and his co- appellants had killed Mr. Bolden

and placed his body in the southeast quadrant of the city. 3

Mr. Thomas and Ashby spoke again later in2010 , when they

were both in the D.C. jail library. Ashby expressed that he was

not worried about the case because all of the evidence was

3a

Appendix A

"pointing at" Logan, except for Ashby's phone, which was in

police custody at the time. 4

3

4

Mr. Thomas stated that Mr. Carrington approached

them about five minutes into this conversation. Mr.

Carrington stated that, while he was present in the

CVS parking lot, he"stayed back ... out ofrespect"

and could not overhear the conversation.

Appellants appeal the admission of these

statements, discussed in more detail below. See

section 11.C., infra.

Following the MPD's investigation into the murder and the

shooting, Appellants were charged with five crimes related to

the killing ofMr. Bolden:

(1) conspiracy to kidnap and rob, in violation ofD.C. Code

§§ 22-1805 a, -2001 , and-2801;

(2) first- degree premeditated murder while armed and

felony murder while armed, in violation ofD.C. Code§§

22-2101 and-4502; and

(3) kidnapping while armed, in violation of D.C. Code

§§ 22-2001 and -4502 , and robbery while armed, in

violation ofD.C. Code§§ 22-2801 and-4502 .

They were also charged with three crimes related to the

shooting ofMs. Daniels:

(1) assault with intent to kill while armed, in violation of

D.C. Code§§ 22-401 and-4502 ("AWIK");

(2) aggravated assault while armed, in violation of D.C.

Code§§ 22-404 .01 and-4502; and

(3) mayhem while armed in violation of D.C. Code §§

22-406 and-4502 .

They were additionally charged with seven counts of

possession of a firearm during a crime of violence or

dangerous offense ("PFCV"), in relation to the above

offenses, in violation ofD.C. Code§ 22-4504 ( b).

Appellants were tried together. At the conclusion ofa month­

long jury trial in mid-2013 , the jury convicted and the judge

sentenced as follows. 5

( i) Logan was found guilty of:

*643 a. Conspiracy to kidnap or rob Camell Bolden;

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Appendix C

District of Columbia

Court of Appeals

JAN 27 2021

NO. 14-CF-414

PAUL ANTHONY ASHBY,

Appellant,

CF1-3069-10

Appellant,

CF1-21619-10

Appellant,

CF1-23411-11

NO. 14-CF-424

KEITH A. LOGAN,

NO. 14-CF-669

MERLE VERNON WATSON,

v.

UNITED STATES,

Appellee.

BEFORE: Blackburne-Rigsby, * Chief Judge; Glickman, Thompson, Beckwith,

Easterly, McLeese; Nebeker, * and Fisher, ** Senior Judges.

ORDER

On consideration of appellant Paul Anthony Ashby’s unopposed motion for

leave to exceed page limit for the lodged petition for rehearing or rehearing en banc,

appellants’ Keith A. Logan and Merle Vernon Watson’s petitions for rehearing or

rehearing en banc, appellee’s motion for leave to exceed page limit for the lodged

opposition to appellants’ petitions for rehearing or rehearing en banc, and it

appearing that no judge of this court has called for a vote on the petitions for

rehearing en banc, it is

ORDERED that appellant Paul Anthony Ashby’s unopposed motion for leave

to exceed page limit for the lodged petition for rehearing or rehearing en banc is

granted, and the Clerk shall file appellant Paul Anthony Ashby’s petition for

rehearing or rehearing en banc, it is

31a

Appendix C

Nos. 14-CF-414, 14-CF-424 & 14-CF-669

FURTHER ORDERED that appellee’s motion for leave to exceed page limit

for the lodged opposition to appellants’ petitions for rehearing or rehearing en banc

is granted, and the Clerk shall file appellee’s opposition to appellants’ petitions for

rehearing or rehearing en banc, it is

FURTHER ORDERED by the merits division* that appellants Paul Anthony

Ashby, Keith A. Logan and Merle Vernon Watson’s petitions for rehearing are

denied, it is

FURTHER ORDERED that appellants Paul Anthony Ashby, Keith A. Logan

and Merle Vernon Watson’s petitions for rehearing en banc are denied.

PER CURIAM

Associate Judge Deahl did not participate in these cases.

** Judge Fisher was an Associate Judge at the time of submission. His status

changed to Senior Judge on August 23, 2020.

Copies emailed to:

Honorable Herbert B. Dixon, Jr.

Director, Criminal Division

Copies e-served to:

Samia Fam, Esquire

Public Defender Service

Thomas T. Heslep, Esquire

Margaret Cassidy, Esquire

Elizabeth Trosman, Esquire

Assistant United States Attorney

32a

Appendix D

No. 14-CF-414 (Ashby)

No. 14-CF-424 (Logan)

No. 14-CF-669 (Watson)

DISTRICT OF COLUMBIA COURT OF APPEALS

PAUL ASHBY,

KEITH LOGAN,

MERLE WATSON,

Appellants,

v.

UNITED STATES OF AMERICA,

Appellee.

Appeal from the Superior Court of the District of Columbia

Criminal Division

BRIEF FOR APPELLANT ASHBY

SAMIA FAM

* ALICE WANG

PUBLIC DEFENDER SERVICE

633 Indiana Avenue, NW

Washington, DC 20004

(202) 628-1200

* Counsel for Oral Argument

33a

Appendix D

STATEMENT OF FACTS

Overview

On the evening of December 30, 2009, Danielle Daniels was shot multiple times as she

house in Northwest D.C. waiting for her boyfriend Carnell

Bolden to return from a rendezvous. Daniels survived the shooting but did not see who shot her.

electrical cords. The bulk of the evidence pointed to Logan. Although no eyewitness identified

the perpetrators, and none of the fingerprints, hair, or DNA recovered in this case matched that

along with duct tape and electrical cords

Prosecution witness Derrick Hill testified that he sold heroin for Logan and crack cocaine

end had asked him for

calls to Bolden that afternoon. The government theorized that Logan had arranged a drug deal

with Bolden as a pretext for robbing him, but when Logan learned that Bolden had no cash and

about a month before the shootings, Logan had solicited him to rob and kill Bolden. Although

Carrington claimed that he rejected the proposal and had nothing to do with the charged crimes,

he gave the police a false alibi for the night of the shootings. The government posited that, after

being turned down by Carrington, Logan recruited defendants Paul Ashby and Merle Watson as

word of cooperating witness Melvin Thomas, a convicted murderer and known drug dealer who

3

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was close friends with Logan and Carrington but not with Ashby, and who himself had been seen

gedly enlisting

accomplices. Although he was an unlikely confidant for Ashby, Thomas claimed that Ashby

twice approached him to confess the details of the crimes: once in a CVS parking lot several

days after Logan was arrested on January 1, 2010, and again six months later in the D.C. Jail.

According to Thomas, Ashby told him that Logan came up with the idea to kill Bolden and

car, and that Ashby and Watson transported Bolden to Southeast D.C. Despite his allegiance to

Logan, Thomas fed this story to the police on January 11, 2010, and claimed at trial that he did

so only because his wife, who knew Daniels, had urged him to help bring the culprits to justice.

Although the government introduced cell phone evidence to place Ashby in the general

vicinity of the crime scenes on December 30, 2009, and to show that the defendants called each

Ashby and

house in Northwest D.C., and placing Ashby and Watson in Northwest D.C. when a witness in

Southeast D.C. heard the gunshots that allegedly killed Bolden. The government urged the jury

to ignore these problems and convict all three defendants on a theory of co-conspirator liability,

which did not require the jury to receive reliable evidence of who did what, so long as it found

that the defendants had agreed to rob or kidnap Bolden.

On appeal, Ashby raises four claims of reversible error. First, although defense counsel

authorities in this case because he feared that the police might suspect him of being involved in

4

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Appendix D

the time of trial, the trial court erroneously precluded the defense from cross-examining Thomas

about these potential sources of bias. Second, when the government argued in summation that

Thomas could not have reported such accurate details about the crimes unless he learned them

in response that

jury on a theory of co-conspirator liability for the charged crimes, when that theory of liability is

The Shootings and Crime Scene Investigation

Danielle Daniels testified that, around 5:30 p.m. on December 30, 2009, she drove her

D.C. 7/2/13 Tr. 239-40. Around 6:00 p.m., they arrived at the unit block of W Street, where

Bolden got out and Daniels stayed in the car, expecting him to return within ten minutes. Id. at

240-42. When he did not, Daniels called and texted his cell phone but received no answer. Id. at

244. Shortl

Id. at 247-48. Daniels was struck by six gunshots, which caused

permanent nerve damage to the left side of her body. Id. at 248, 254. Daniels called 911 at 7:15

p.m., within five minutes of the shooting. Id.

could not tell if the shooter was a male or a female. Id. at 248, 273.

Justin Lewis testified that, on the night of December 30, 2009, he heard one or two

gunshots from his house on 31st Street and Park Drive in Southeast D.C. Id. at 313-15. He

looked out the window toward the wooded area behind his house and saw a vehicle driving

5

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slowly on Park Drive. Id. at 316dead body in the 3000 block of Park Drive. Id. at 355-56. When interviewed that day, on

December 31, 2009, Lewis told police in a written statement that he had heard gunshots the

previous night around 8:30 p.m. Id. at 326, 331.3

injuries consistent with a beating but not a choking, id. at 70-71, 75-76. His body was bound

with duct tape and electrical cords, and his wallet and cell phone were missing. 7/10/13 Tr. 416;

from the shooting of Daniels were fired from a semi-automatic firearm. 7/9/13 Tr. 587-88, 591.

No guns were found in connection to this case.

Department (MPD) Detective Joshua

Hill. Id. at 417-19. Keith Logan answered the door and explained that Hill was not there. Id. at

420power cord ripped out, and electrical cords strewn about the room. Id. at 426. Branson then told

Logan that he needed to speak with him at the police station about the shooting on W Street. Id.

at 429. When Logan arrived at the station, Branson checked his criminal history, discovered an

outstanding parole warrant, and arrested Logan on that warrant. Id. at 430.

3

the gunsh

Tr. 336. Although Lewis estimated at trial that he heard the gunshots around 7:30 or 8:00, id. at

332, he admitted that his memory of the events was better in 2010 than in 2013, id. at 334.

6

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Appendix D

electrical cords that Branson had seen. 7/11/13 Tr. 90, 100, 108-10. During a subsequent search

of the basement on January 11, 2010, police discovered bloodstains on a bedroom wall and on a

yellow jacket belonging to Hill, and two rolls of duct tape tucked inside a laundry basket

none

of which they had seen during the first search. Id. at 118, 124, 128-30, 174; 7/17/13 Tr. 524,

530-38.4 Two days later, on January 13, 2010, police found more bloodstains and duct tape in a

Land Rover associated with Logan. 7/17/13 Tr. 542, 545, 568. 5 DNA analysis showed that the

-45.

were consistent with the duct tape and television set found

-

15; 7/25/13 Tr. 1243-44, 1258.

None of the physical evidence recovered from the crime scenes was connected to Ashby.

no

not come from Ashby. 7/25/13 Tr. 1302-03. Finally, according to DNA testing conducted by

both the government and the defense, Ashby was not the source of any of the DNA recovered

4

Police conducted the second search after Hill reported discovering a bloodstain on his jacket

-52, 256-57, 288;

7/11/13 Tr. 117-20. The scene was not secured during the ten days between the two searches.

7/11/13 Tr. 189.

5

Police conducted a traffic stop of the Land Rover on January 1, 2010, and arrested both

occupants

-sister Diane McCray and his girlfriend Queen Williams after finding

cocaine in the car. 7/17/13 Tr. 602, 612-14. McCray testified that Williams had driven the Land

Rover to her apartment that day, that she had seen Williams in the Land Rover two weeks earlier,

and that she saw the Land Rover parked outside 70 W Street in December 2009. Id. at 613-16.

7

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shooting. 7/18/13 Tr. 951-52; 7/22/13 Tr. 1161-68.

Nor were any of the defendants found with proceeds from the alleged robbery of Bolden.

debit card had been used at two gas stations in Northeast D.C. on January 1, 2010, two days after

the murder, and at three businesses in Sanford, North Carolina, on January 12, 2010, after Logan

and Ashby had been incarcerated on unrelated charges, the government withheld this information

from the defense for three years, and Greene failed to preserve security camera footage that may

have depicted the unauthorized purchases. 7/29/13 Tr. 16, 20-21, 34-36; 12/14/12 Tr. 7-8. 6

Police eventually traced the purchases to Ronald Smith, a crack cocaine dealer who supposedly

efore moving

to Sanford, North Carolina, in January 2010. 7/29/13 Tr. 37-38; 7/30/13 Tr. 113-20, 132.

W Street in Northwest D.C. 7/8/13 Tr. 179-81. Hill sold heroin for Logan and crack cocaine for

6

rentwood. 7/29/13 Tr. 16, 21-22, 34.

Although Greene spoke to the manager of New York BP and obtained security camera footage

for January 1, 2010, he lost the footage soon thereafter, and he never requested footage from

elieved it was the same gas station as New York BP. Id. at

22-34. Nor did Greene investigate the debit card purchases made in North Carolina until three

years later, when the security camera footage had been destroyed, and one of the establishments

had gone out of business. Id. at 34in disclosing this exculpatory information to the defense violated Brady v. Maryland, 373 U.S.

3 Tr. 64. As a sanction, the

footage that Greene failed to preserve. 7/26/13 Tr. 1389-91; 7/30/13 Tr. 25-28; 7/31/13 Tr. 63.

8

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Id. at 182-83; 7/9/13 Tr. 288. Bolden would come to

which he would

sell, sometimes to Logan. 7/8/13 Tr. 183-84. According to Hill, both Bolden and Logan were

successful drug dealers. 7/9/13 Tr. 287, 316.

In October 2010, Hill stopped paying rent and was asked to move out of the basement.

7/8/13 Tr. 187

basement and continued to go there every day. Id. at 190-91. Hill testified that, the day before

anged, and then

went upstairs to speak with Logan while Hill stayed downstairs. Id. at 205-07. The next day, on

number on a piece of paper, which Williams brought upstairs to Logan. Id. at 211-15; 7/9/13 Tr.

240at 4:19 p.m. and 5:47 p.m. on December 30, 2009. 7/22/13 Tr. 1036.

in the weeks before the shootings

a fact that Hill failed to mention in his police statements and

grand jury testimony

shootings. 7/8/13 Tr. 195-96, 219; 7/9/13 Tr. 267-72; 7/25/13 Tr. 1334. In addition to being

impeached with his lengthy criminal record 7 and his concern about being an initial suspect in

-62, 272, 300.

7

Hill was convicted of cocaine distribution in 1997, possession of cocaine in 1989, violation of

the Bail Reform Act in 1989, shoplifting in 1984, and credit card fraud in 1980. 7/8/13 Tr. 177.

9

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Appendix D

Norlin Washington testified that, in late 2009, he frequently went to 70 W Street to buy

drugs. 7/8/13 Tr. 16-17.8 He bought heroin from Logan and cocaine from Hill, and he used

drugs with Watson. Id. at 20, 58, 70. He knew Ashby from seeing him around the Shaw area,

near Howard University, where Ashby hung out with Watson. Id. at 21, 69.

Washington testified that, on December 24, 2009, he went to 70 W Street to buy heroin,

and he saw Logan, Ashby, and Watson there, along with Gregory Shipman and Melvin Thomas,

Id. at 23-26, 63-64, 73-75.

According to the government, it was during this gathering at 70 W Street on December 24, 2009,

-68. Washington

also testified that, some time between

-42. Washington did not mention these alleged statements

when he spoke to the police in July 2010 or when he testified in the grand jury in August 2010.

Id.

December 30, 2009, reporting that an undercover police officer had been shot at 5th Street and

W Street

a report that turned out to be false. Id. at 45; 7/15/13 Tr. 81-83; 7/22/13 Tr. 1038. 9

According to the government, Watson made the false report from 5th and W to divert police

attention from the shooting of Daniels four blocks away. 7/31/13 Tr. 172-75. According to the

defense, Watson and his father were at 5th and W to buy heroin when Watson noticed suspicious

activity and summoned police quickly to the area to protect his elderly father. 8/1/13 Tr. 141-42.

8

Washington had numerous drug and theft convictions from 1997 to 2012, and he had pending

criminal cases in D.C., Maryland, and Virginia at the time of trial. 7/9/13 Tr. 47-48.

9

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Appendix D

John Carrington testified that, in November 2009, his close friend Logan solicited him to

rob and kill Bolden, whom Carrington knew from growing up in LeDroit Park. 7/18/13 Tr. 74244.10

ded some

Id. at 744. When Carrington said he did need some money, Logan suggested that he

rob and kill Bolden. Id.

Id. at 744, 751.

Id. at 760. He told

with a woman he knew from work named Tameka Jackson. Id. at 906-07; 7/29/13 Tr. 13-14.

Carrington claimed that he and Jackson sat in his car, parked in front of her apartment building in

Southeast D.C., from 5:00 p.m. to 11:00 p.m.; that he left the car during those six hours only to

use the bathroom inside Jack

-hour

date. 7/18/13 Tr. 906-07, 910. Carrington also testified that, around 3:30 p.m. the next day, he

Id. at 906, 910-11.

Tameka Jackson testified that, although Carrington had driven her home from work on

occasion, she never went on a date with him, she never sat in his car for hours, he never entered

her apartment to use the bathroom, and she never heard anyone tell him about a shooting on W

Street. 7/30/13 Tr. 172-75, 185. Detective Greene testified that, although he tried to contact

-

10

Carrington was convicted of assault with a dangerous weapon and possession of a firearm

during a crime of violence in 1992; attempted possession with intent to distribute marijuana in

1990; and possession of PCP, marijuana, and heroin in 1987. 7/18/13 Tr. 736.

11

42a

Appendix D

was not identified until after 7:00 p.m. on December 31, 2009, and the news of his murder was

not disclosed to the public until after 8:00 p.m. that night. Id. at 9-10.

Carrington testified that, the day after the shootings, he went to 70 W Street to see Logan,

who introduced him to Ashby. 7/18/13 Tr. 753Id. at 801.

Carrington testified that, several days later, he went to the parking lot of the CVS pharmacy at

7th Street and Florida Avenue to find his close friend Melvin Thomas because he was worried

Id. at 758-60. As Carrington approached, he saw Thomas talking with Ashby and another man

he did not recognize. Id. at 762-63. Carrington testified that he did not join or overhear their

Id. at 763-64.

According to Carrington, he did not approach Thomas until after the conversation ended and

Ashby and the other man walked away together. Id. at 764.

murder. Id. at 831. Although he told them about seeing Ashby with Logan at 70 W Street and

with Thomas in the CVS parking lot, he did not mention that Logan had solicited him to rob and

kill Bolden until May 2011, when he was arrested for threatening to kill a woman after crashing

into her car while driving drunk

a parole violation for which he faced ten years in prison. Id. at

777-80, 893. By the time of trial, Carrington had secured a cooperation agreement in which he

pending criminal case and parole revocation hearing. Id. at 737-38, 775-76.

Melvin Thomas, who was close friends with Carrington and Logan but not with Ashby,

also testified at trial pursuant to a cooperation agreement. 7/15/13 Tr. 151-52; 7/16/13 Tr. 307,

12

43a

Appendix D

342

By the time of trial, Thomas

who was on lifetime parole for a murder conviction and had been

previously convicted of multiple drug and gun offenses

had collected a slew of felony charges

this case. 7/15/13 Tr. 149-50, 153, 220; see infra note 13.

Thomas claimed that, in early January 2010, he encountered Ashby and Shipman 11 in the

-59. According to Thomas,

Id. at 164-66, 168, 173-74, 176. Thomas testified

anuary 11,

2010, he pointed the finger at Logan and Ashby, and cooperated with the police for the first time

in his life, because his wife, who knew Daniels, had urged him to help in the investigation of the

shootings

an explanation that he gave for the first time at trial. Id. at 172, 178, 191-92; 7/16/13

Tr. 355-58.12

Thomas claimed that Shipman walked away before the conversation started, that Carrington

joined the conversation

standing in between Thomas and Ashby

about five minutes after

Ashby started talking, that Carrington announced to Thomas and Ashby that he had just spoken

11

Thomas testified that he knew Shipman but was not friends with him. 7/16/13 Tr. 331.

12

When Thomas inculpated Logan and Ashby on January 11, 2010, both defendants had been

arrested for unrelated offenses, and Thomas mistakenly believed that Logan had been arrested

for the shootings of Daniels and Bolden. 7/2/13 Tr. 292; 7/15/13 Tr. 156, 165.

13

44a

Appendix D

to homicide detectives, and that Ashby continued to incriminate himself for another twenty

minutes i

-78;

7/16/13 Tr. 336-40, 393-94.

Thomas further claimed that, on July 16, 2010, after he was arrested and incarcerated for

soliciting a prostitute and assaulting two police officers, he once again encountered Ashby, this

time in the law library of the D.C. Jail, where Ashby told him more about the shootings. 7/15/13

Tr. 180-84; 7/16/13 Tr. 394-95.13

was pointing at [Log

14

that

police. 7/15/13 Tr. 184-91; 7/16/13 Tr. 359-61.15

13

In April 2010, Thomas was arrested and charged with one count of solicitation and two counts

of felony assault on a police officer (APO), for which he faced thirty years of imprisonment and

revocation of his lifetime parole. 7/16/13 Tr. 395-98. In May 2010, just a few days after being

released on his APO charges, Thomas was arrested in Virginia on drug and traffic charges that

were still pending at the time of this trial. Id. at 408-09, 411, 414-15. In October 2010, Thomas

promised to testify in this case in exchange for a misdemeanor plea on his APO charges, which

Id. at 397. In May 2013, after completing his sentences for

his APO convictions and associated parole violations, Thomas was again arrested for assaulting a

police officer and unlawfully possessing a firearm charges that were dismissed by the time of

trial. 7/15/13 Tr. 220-23. At the time of trial, Thomas was awaiting a parole revocation hearing

for his most recent arrest

hearing in exchange for his testimony in this case. Id. at 152; 7/16/13 Tr. 415-19.

14

brother who owned property on W Street in Northwest D.C. 7/22/13 Tr. 1141, 1144.

15

Detective Kenniss Weeks testified that, when she served Ashby with a warrant to obtain a

Id. at 637-38, 642.

14

45a

Appendix D

The Precluded Bias Cross-Examination

confidant and had nothing to gain from blaming Logan and Ashby for the shootings when first

questioned by the police in January 2010. In an ef

the only evidence at trial that directly linked Ashby to the crimes

defense

counsel sought to cross-examine Thomas about his potential motives to incriminate Ashby,

including his own apparent connections to the charged crimes. In support of this proposed line

of bias cross-examination, counsel proffered a collection of facts tending to show that Thomas

pect to

o

70 W Street

the same place where Bolden ran his lucrative crack cocaine business

he likely

whether to rob him for cash

or to eliminate him as a competing drug dealer. 7/16/13 Tr. 270. Although Thomas insisted that

he did not sell drugs around the time of the shootings, 16 7/15/13 Tr. 208, 219

a claim that even

the government was forced to disavow by the end of trial, 8/1/13 Tr. 177-78

16

Thomas testified that, although he was wealthy enough to finance a restaurant, support two

-time job

at Central Communications, a cell phone store located at 7th Street and Florida Avenue, where

he worked forty hours a week for $8.50 an hour. 7/15/13 Tr. 153, 237-42; 7/16/13 Tr. 287-88,

292-301. Donald Campbell, who owned and operated Central Communications, testified that,

although Thomas frequented the store as a customer, he never worked there and was not a paid

employee. 7/29/13 Tr. 165-69. Although Thomas testified that he received most of his paystubs

13 Tr. 195;

15

46a

Appendix D

at 70 W Street less than a week before the shootings. 7/15/13 (sealed) Tr. 4-5; 7/15/13 Tr. 23. In

investigating the murder of Bolden, who sold drugs at 70 W Street, police would naturally focus

on who else sold drugs at 70 W Street: Thomas. As a convicted murderer with access to firearms

which made it more likely that Logan would recruit him for the job, and that police would view

him with suspicion. 7/15/13 Tr. 196. And as one of the men seen assembled at 70 W Street on

December 24, 2009, when Logan was allegedly enlisting accomplices for the crimes, Thomas

doing so. Id. at 25, 195; 7/16/13 Tr. 270. Based on these facts, defense counsel sought to crossincluding

to show that

himself. 7/16/13 Tr. 270-71.

The government objected to this proposed line of cross-examination. 7/15/13 Tr. 197.

Although the government conceded that Thomas

whether shared with Logan or not

did

not make it more

absolutely no proffer as to . . . what triggering event . . . might have made him want to attempt to

Id.; see also 7/16/13 Tr. 276-

16

47a

Appendix D

-examination,

Logan to target Bolden when the two men had no history of animosity. 7/15/13 Tr. 198. Indeed,

association

-examine Thomas about his business

Logan than Ashby did. 7/16/13 Tr. 270. 17

The trial court sided with the governm

see also id. at 203-

-examining

Thomas about hi

lines

Winfield issue for which . . . I ruled

Id. at 198-99, 203; see also 7/16/13 Tr. 277.18

The defense also sought to cross-examine Thomas on a separate, independent theory of

bias: that Thomas was potentially involved, or at least feared being implicated, in several other

serious crimes being investigated at the time of trial, which gave him a strong liberty interest in

currying favor with the government by providing testimony that the government wanted to hear

in this case. 7/16/13 Tr. 251-57, 261, 273. First, defense counsel proffered that, according to an

arrest warrant affidavit filed in federal court the previous day, Thomas had been under police

17

-examination, and both Logan and Ashby moved

for a severance, which the trial court denied. 7/16/13 Tr. 274, 277.

18

Pursuant to an earlier ruling, 7/15/13 Tr. 26-31, the trial court permitted the defense to crossexamine Thomas on whether he packaged heroin at 70 W Street on December 24, 2009, in front

a basis for Mr. Thomas wanting

id. at 198.

17

48a

Appendix D

Braxton

a day

-related

Id. at 249-50, 254.19 The affidavit stated that, in April 2013, police believed that

ment of heroin from Guatemala

that was intercepted in Houston; after Thomas was arrested on unrelated charges in May 2013,

the

day Thomas testified on direct examination in this case. Id. at 248-50, 255-56.

business partner Raymond Proctor was arrested and indicted earlier that year for selling large

quantities of heroin to undercover

located at 3118 Georgia Avenue that Thomas co-owned with Proctor. 7/15/13 (sealed) Tr. 5-6;

7/16/13 Tr. 250drug operation

Finally, defense counsel proffered that, according to eyewitness accounts, Thomas was

d

at 2718 Georgia Avenue. Id. at 261-62. Thomas and McFadden got into a fight at the bar, and

19

Defense counsel proffered phone records showing more than 400 calls between Thomas and

Braxton while Thomas was incarcerated at the D.C. Jail. 7/16/13 Tr. 254. Thomas admitted that

Braxton had access to his bank accounts, id. at 291id. at 325.

During one of those phone calls, on August 14, 2010, Braxton reported to Thomas a street rumor

Id.

at 370Id. at

372Id.

Id. at 377-78. When crossId. at 373.

18

49a

Appendix D

Id. at 261. According to eyewitnesses who had spoken to the defen

Id. at 261-62.

-examine Thomas about

his potential connection to the other two crimes

Cuisine, and the murder of

government to avoid prosecution. Id. at 266. In opposing these topics of cross-examination, the

-

rrested on unrelated

Id. at 265. The government argued, however, that because the detective did not suspect Thomas

Id. at 265-66.20 The defense countered that, regardless of whether

20

According to the government, Thomas deni

when questioned in May 2013. 10/9/13 Tr. 7. In August 2013, however, as soon as this trial

who might have been involved or who might be culpable,

Id. at 7-8; see also 11/15/13 Tr.

7. Based on this newly discovered evidence, the defense moved for a new trial, which the trial

court denied. R. 117; 2/21/14 Tr. 23-27.

19

50a

o curry favor with the government

Appendix D

especially at

this stage of the investigation, where [he may be] thinking that if I testify in this murder case,

Id.

appears that h

Id. The trial court summarily denied the defense request for cross-

Id. at 259, 268-69, 273; see also 7/30/13 Tr. 205-06; 10/9/13 Tr. 9-10.

The Cell Phone Evidence

crimes, the government presented cell phone records showing frequent communication between

Logan, Ashby, and Watson on

numbers allegedly associated with the defendants: 202-536-0656

(Ashby), 202-361-6722 (Logan), and 301-407-7313 (Watson). 7/22/13 Tr. 993, 998-99, 1001.

The call detail records listed all incoming and outgoing calls; the date and time of each call; the

p

receive each call. Id. at 1000-06.21 Based on information obtained from the cell phone service

providers about the location and orientation of each cell site, Horan mapped the general areas

where each phone was used at various times on December 30, 2009. Id. at 995-97, 1005-06.22

any given time; rather, it could de

21

The call detail records showed three calls between Logan and Ashby, and more than twenty

calls between Ashby and Watson, on December 30, 2009. 7/22/13 Tr. 1030, 1038.

22

The cell site maps that Horan used as demonstrative aids during his testimony are reproduced

20

51a

Appendix D

on the surrounding geography and the distance between cell sites. Id. at 1055-76, 1084-86.

Based on his analysis of the call detail records and cell site location information, Horan

as in Southeast

D.C. from 7:07 p.m. to 7:20 p.m.; and it was back in the LeDroit Park or Shaw area from 8:01 to

9:00 p.m. Id. at 1032-35, 1039, 1046-48.23

from 1:29 p.m. to 10:33 p.m., except between 5:47 p.m. and 8:08 p.m., when it did not make or

receive any calls and thus could not be tracked by cell site analysis. Id. at 1035-37.24

phone remained in the LeDroit Park or Shaw area from 5:21 p.m. to 9:00 p.m. Id. at 1037-39.

Because none of the call detail records provided any identifying information about the

subscribers, the government relied on other evidence to connect the cell phone numbers to the

defendants.25

-361-6722. 7/9/13 Tr. 241-44.

Two police officers testified that, on January 9, 2010, a cell phone was seized from Ashby during

his arrest for an unrelated offense. 7/2/13 Tr. 292; 7/16/13 Tr. 469. Detective Greene testified

from the property office, where it had

23

-time girlfriend testified that she lived at 1741 28th Street in Southeast D.C., and

o lived nearby. 7/22/13 Tr. 1137, 1139-40, 1144.

24

speak with Charles

-606, 609-10,

Id. at 603. McCray left her

apartment soon thereafter, and when she returned an hour later, Logan was still there, where he

remained until the next morning. Id. at 607-09.

25

-16.

21

52a

Appendix D

7/17/13 Tr. 486-91. Although Greene initially testified that he did not turn on or look inside the

phone before placing it into evidence, as such actions would require a search warrant, id. at 492-

-53.26

that its phone number was 202-536-0656, and that an outgoing call had been placed to 202-6078268

-407-7313. Id. at 639-41. Detective

Weeks testified that she c

the person who answered the phone identified himself as Watson. 7/10/13 Tr. 627-29.

After learning midcounsel for Ashby filed a Fourth Amendment motion to suppress all of the evidence that police

detail records for 202-536-

sion in United

States v. Flores-Lopez, 670 F.3d 803 (7th Cir. 2012)

a decision that the Supreme Court later

rejected in Riley v. California, 134 S. Ct. 2473 (2014)

ned the phone to figure out what the

text messages or anything of that nature, which is what the Fourth Amendment is potentially

concerned about in the area of th

26

phone, call their own cell number to try to get the number on the caller I.D. of their own phone,

what the number

22

53a

Appendix D

warrant. Id. at 32. The court reasoned

determine the telephone number for the phone so that a warrant could be sought for other inner

Id. at 32Jury Instructions and Closing Arguments

At the end of its case, the government requested Redbook Instruction 7.103

Pinkerton

-conspirator liability

for all charged substantive offenses. 7/31/13

Tr. 5-7. Counsel for Ashby submitted a written opposition arguing that, because co-conspirator

liability is not authorized by statute, and because only the legislature, and not a court, may create

criminal liability in the District of Columbia, instructing the jury on a judicially created theory of

27

co-

see also

convictions on a Pinkerton

trial court agreed with the government and instructed the jury accordingly, it expressed serious

come out this way. . . . I just really wonder if it is a train wreck waiting to happe

Id. at 9; see

also id. at 159-61 (instructing jury on co-conspirator liability).

-conspirator liability, the government argued to

the jury that, because Logan, Ashby, and Watson had all conspired to rob or kidnap Bolden, they

27

included in the Appendix for Appellant Ashby at Tab C.

23

54a

Appendix D

were all guilty of the reasonably foreseeable crimes committed in furtherance of the conspiracy,

including the shootings of Daniels and Bolden, even if they did not actually participate in those

crimes. According to the government, Logan came up with the idea to rob Bolden because he

But because Logan, who was much smaller than Bolden, could not subdue Bolden on his own,

Id.

Id. Citing

,

Id. at 168. With no direct evidence of a criminal agreement and no physical evidence

tying Ashby and Watson to the crimes, the government pointed to the cell phone calls between

Logan, Ashby, and Watson on December 30, 2009, arguing that such communication reflected

their agreement to rob or kidnap Bolden. Id. at 175-76, 179; 8/1/13 Tr. 185.

To explain how the crimes unfolded, the government relied on T

Ashby supposedly told him. 8/1/13 Tr. 18-

parolee who was gainfully employed with

Id. at 17, 20; see also id. at 176, 178. The government also argued that,

Thomas first spoke to the police on January 11, 2010, he could not have recounted such accurate

details about the crimes unless he learned them from Ashby:

[S]omehow Melvin Thomas knows that this happened in the basement. And it is quite

24

55a

Appendix D

How would he possibly know that . . . somebody was in that basement when it happened?

Defendant Ashby told him. There was no other basis on the evidence in this case for

Melvin Thomas to have that information unless it came from someone involved. . . .

[S]omehow [Thomas] knows that . . . Bolden[] was taken over to [S]outheast after they

knocked him out in the basement. Again, January 11th, 2010, more than a month before

the preliminary hearing. . . . So, once again, how does Melvin Thomas know that unless

what he is saying is true? Defendant Ashby told him. . . .

Again, how would Melvin Thomas

Id. at 18, 20-21, 22.

Ashby confessed to shooting Daniels, the cell phone evidence showed that Ashby was nowhere

near 70 W Street at 7:15 p.m., when Daniels was shot. Similarly, although Thomas claimed that

Ashby and Watson transported Bolden to Southeast D.C., the cell phone evidence indicated that

Watson remained in Northwest D.C. from 5:21 p.m. to 9:00 p.m., and that Ashby was back in

o the police the next day.28

8-

Faced with this quandary, the government made only a half-hearted attempt to delineate

29

all the charged crimes

and instead urged the jury to convict all three defendants of

including the shooting of Daniels; the robbery, kidnapping, and murder

of Bolden; and the associated weapons offenses

based on a theory of co-conspirator liability.

As the government explained to the jury in its opening statement:

28

that Logan arrived at her apartment before sunset on December 30, 2009, and remained there

until the next morning. See supra note 24.

29

The government ultimately hypothesized that Logan lured Bolden into the basement; Ashby

assaulted him there; Watson called 911 to divert the police; Logan shot Daniels; and Ashby took

Bolden to Southeast D.C. and shot him there. 8/1/13 Tr. 35-36.

25

56a

Appendix D

If two or more people agree to do something; in this case, to rob, kidnap and kill Carnell

was a party to the agreement committed those crimes. So the question for you to

consider . . . is not who pulled the t

trigger on Danielle Daniels. The question for you to consider is: Was there a conspiracy

to rob, kidnap or to kill Carnell Bolden, and did these three defendants join that

conspiracy and were the crimes that the government charges done in furtherance of that

conspiracy? If the answer to all three of those is yes, defendants are all guilty.

7/2/13 Tr. 212. The government reiterated this theory in its closing and rebuttal arguments,

might not have been there when the shootings took place. That is, the alibi instruction is not

counsel sought permission to argue his theory that Thomas and Carrington, and not Ashby, were

-67, 72. The trial court denied the request, ruling

nd the crimes about which they professed

such intimate knowledge. Id. at 71; 2/21/14 Tr. 27.30 After the government argued in closing

that Thomas could not have possessed such accurate information about the crimes if Ashby had

8/1/13 Tr. 37. The trial court denied this request as well, ruling that, although counsel could

argue

30

The trial court ruled that the defense could argue that Hill was a third-party perpetrator, given

the blood on his jacket and his presence in the area within an hour of the crimes. 7/31/13 Tr. 70,

103. As a selfBrady information about

that Smith was a third-party perpetrator. Id. at 67; see also 5/23/13 Tr. 74.

26

57a

Appendix D

Winfield suspects

when [the court has] already ruled that [the evidence] does not meet

Id. at 37-38.

The jury acquitted Ashby of all charges related to the shooting of Daniels and convicted

him of all other charges. R. 107. He was sentenced to a total of ninety years in prison. R. 124.

ARGUMENT

I.

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT PRECLUDED

THE DEFENSE FROM CROSS-EXAMINING THOMAS ON BIAS ARISING FROM

HIS CONNECTIONS TO THE CHARGED CRIMES AND TWO OTHER CRIMES.

the case was fo

the crimes could identify the culprits, and because the physical evidence implicated only Logan,

Ashby. An

important question for the jury was why Thomas

a career criminal, convicted murderer, and

notorious drug dealer

against his best friend Logan. The government argued to the jury that Thomas had nothing to

gain when he first offered his story to the police on January 11, 2010

elf claimed on direct examination that he divulged his

to justice, 7/15/13 Tr. 191-92

background that it suggested a thinly veiled attempt to conceal his true motives.

pursue several distinct lines of cross-examination designed to show that, from beginning to end,

Thomas was a biased witness with enormous interest in aligning himself with the government to

protect himself from official suspicion. Defense counsel first sought to cross-examine Thomas

27

58a

Appendix D

precluded this p

an

DeLoach, 504 F.2d at 192. Without

ermitted to advance his theory in closing

argument, some jurors might have been persuaded to think twice about believing Thomas, whose

as it accounted for bot

ion of that

Court cannot conclude under any standard that the error was harmless.

III.

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT INSTRUCTED

THE JURY ON A PINKERTON THEORY OF CO-CONSPIRATOR LIABILITY THAT

HAS NEVER BEEN AUTHORIZED BY THE D.C. LEGISLATURE.

Because no eyewitness placed any of the defendants at the crime scenes, and because the

tion in the shooting of Daniels

and the robbery, kidnapping, and murder of Bolden, the government urged the jury to convict all

three defendants of all charged substantive offenses based on a theory of co-conspirator liability:

If two or more people agree to do something; in this case, to rob, kidnap and kill Carnell

was a party to the agreement committed those crimes. So the question for you to

consider . . . is not who

trigger on Danielle Daniels. The question for you to consider is: Was there a conspiracy

to rob, kidnap or to kill Carnell Bolden, and did these three defendants join that

51

59a

Appendix D

conspiracy and were the crimes that the government charges done in furtherance of that

conspiracy? If the answer to all three of those is yes, defendants are all guilty.

7/2/13 Tr. 212; see also

8/5/

instructed the jury on a theory

of co-conspirator liability based on Redbook Instruction 7.103:

A conspiracy is kind of a partnership in crime. And its members may be responsible for

member of the conspiracy if the defendant was a member of the conspiracy when the

offense was committed and if the offense was committed in furtherance and as a natural

consequence of the conspiracy. . . . Under this theory, in order to find the defendant

guilty of the murder, kidnapping or robbery of Carnell Bolden or the assault or mayhem

offenses related to Danielle Daniels or the related firearm offense, . . . you must find

beyond a reasonable doubt the following:

One, that there was a conspiracy to kidnap or rob Carnell Bolden.

Two, . . . the murder, the kidnapping or robbery of Carnell Bolden or the assault or

mayhem offenses related to Danielle Daniels or the related firearm offense was

committed by a coconspirator of the defendant.

Three, the defendant was a member of the conspiracy to kidnap or rob Carnell Bolden at

the time of the murder, kidnapping or robbery of Carnell Bolden or the assault or

mayhem offenses related to Danielle Daniels or the related firearm offense.

Four, that the murder, kidnapping or robbery of Carnell Bolden or the assault or mayhem

offenses related to Danielle Daniels or the related firearm offense was committed during

the existence of the conspiracy.

Five, that the murder, kidnapping or robbery of Carnell Bolden or the assault or mayhem

offenses related to Danielle Daniels or the related firearms offense was committed in

furtherance of the conspiracy.

And, number six, the murder, kidnapping or robbery of Carnell Bolden or the assault or

mayhem offenses related to Danielle Daniels or the related firearm offense was a

reasonably foreseeable consequence of the conspiracy. It is not necessary to find that the

crime was intended as a part of the original plan, only that it was a foreseeable

consequence of the original plan.

7/31/13 Tr. 159-61. This standard jury instruction is not based on any statute in the D.C. Code,

Pinkerton v. United States, 328 U.S. 640 (1946). See

52

60a

Appendix D

Comment to Redbook Instruction 7.103. Unlike federal courts, and like their state counterparts,

D.C. courts applying local criminal law are not required to follow Pinkerton, which is a part of

the federal criminal law. To the contrary, a D.C. court may not instruct the jury on a theory of

this

United States, 399 A.2d 21, 25 (D.C. 1979) (emphasis added). Because Pinkerton liability is not

authorized by any D.C. statute, and because only the legislature, and not the judiciary, has the

power to create criminal liability in the District of Columbia, Pinkerton liability is not a valid

theory requires reversal.

A.

PINKERTON LIABILITY IS NOT AUTHORIZED BY STATUTE.

Under the Pinkerton doctrine of co-

a co-conspirator who does not

directly commit a substantive offense may nevertheless be held liable for that offense if it was

committed by another co-conspirator in furtherance of the conspiracy and was a reasonably

foreseeable consequence of the conspirat

Wilson-Bey v. United States, 903

A.2d 818, 840 (D.C. 2006) (en banc) (alteration omitted). To secure a conviction based on a

Pinkerton

-conspirator actually

aided the perpetrator in the commission of the substantive crime, but only that the crime was

Id. Neither Congress nor the D.C. Council has

ever enacted a statute authorizing such a theory of criminal liability. In 1901, Congress passed

-degree murder,

id. ch. 854, § 798 (codified as amended at D.C. Code § 22-2101), robbery, id. ch. 854, § 810

(codified as amended at D.C. Code § 22-2801), and kidnapping, id. ch. 854, § 812 (codified as

amended at D.C. Code § 22-2001), the 1901 Code incorporated the common law in effect in

53

61a

Appendix D

Maryland on February 27, 1801, when Maryland ceded to the United States what is now the

District of Columbia.43

:

(1) it has been expressly adopted by statute, or (2) it was part of Maryland common law in 1801

and thus incorporated into the 1901 Code.

, 399 A.2d at 25; see infra Part III.B.

Neither is true of Pinkerton co-conspirator liability.

The conspiracy statute punishes only the act of conspiring to commit a criminal offense,

and does not create a theory of vicarious liability for substantive criminal offenses committed by

co-conspirators. D.C. Code § 22-

commit a criminal

offense . . . each shall be fined . . . or imprisoned not more than 5 years, or both, except that if the

object of the conspiracy is a criminal offense punishable by less than 5 years, the maximum

44

penalty for the conspiracy shall not exc

Nor do the first-degree murder, robbery, or kidnapping statutes authorize punishment for those

crimes based on a theory of vicarious liability. 45 Rather, the only statute in the D.C. Code that

punishes a defendant for an offense that he did not himself commit is the aiding and abetting

43

31 Stat. 1189, ch. 854, § 1 (codified at D.C. Code § 45The common law, all British

statutes in force in Maryland on February 27, 1801, the principles of equity . . . shall remain in

force except insofar as the same are inconsistent with, or are replaced by, some provision of the

provides that all consistent common law

in force in Maryland at the time of the cession of the District of Columbia remains in force as

44

Nor does the legislative history of D.C. Code § 22-1805a mention co-conspirator liability for

a substantive criminal offense. See H.R. Rep. No. 91-1303, at 143 (1970) (Conference Report);

H.R. Rep. No. 91-907, at 66 (1970) (Committee Report).

45

By its terms, . . . the first-degree murder statute imposes felony murder liability solely on the

person who does the killing. Other participants in the felony are exposed to first-degree murder

liability only by virtue of the aiding and abetting statute. Hence, the felony murder liability of an

Christian v. United States, 394 A.2d 1, 48 (D.C. 1978).

54

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Appendix D

statute. That statute, which has never been amended since it was enacted as part of the 1901

Code, provides:

In prosecutions for any criminal offense all persons advising, inciting, or conniving at the

offense, or aiding or abetting the principal offender, shall be charged as principals and not

as accessories, the intent of this section being that as to all accessories before the fact the

law heretofore applicable in cases of misdemeanor only shall apply to all crimes,

whatever the punishment may be.

D.C. Code § 22-1805. The aiding and abetting statute provides that accomplices may be charged

and punished as principals for the crimes they assist; it does not provide that co-conspirators may

be punished for all foreseeable crimes committed in furtherance of the conspiracy.

Indeed, as this Court explained in its en banc opinion in Wilson-Bey Pinkerton liability

and aiding and abetting are distinct legal theories th

Id. at 831 (quoting United States v. Peoni, 100 F.2d 401, 402 (2d Cir. 1938)). In other

the aider or abettor must have knowingly aided the other person with the intent that the

Id. at 834. To be convicted under Pinkerton liability,

conspirator in furtherance of the conspiracy and was a reasonably foreseeable consequence of the

Id. at 840 (citation omitted); see id.

required [under Pinkerton] 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

In other words, Pinkerton co-conspirator liability requires neither the act of

55

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Appendix D

furtherance of the conspiracy and was a

reasonably foreseeable consequence of the conspiratorial agreement. Id. at 834, 840; see also

Erskines v. United States, 696 A.2d 1077, 1080-81 & n.5 (D.C. 1997) (explaining that, whereas

aiding and abetting liabili

Pinkerton doctrine allows conviction for substantive

offenses without satisfaction of either the actus reus or mens rea element of the substantive

2 W. LaFave, Substantive Criminal Law

[O]ne is not an accomplice

to a crime merely because that crime was committed in furtherance of a conspiracy of which he

is a member, or because that crime was a natural and probable consequence of another offense as

Co-conspirator liability, as distinct from accomplice liability, did not exist at common

Agresti v. State,

234 A.2d 284, 285 (Md. Ct. Spec. App. 1967). Under Maryland common law as it existed in

1801 and as incorporated into D.C. law by the 1901 Code,

in four capacities: as a principal in the first degree, a principal in the second degree, an accessory

Osborne v. State, 499 A.2d 170, 171 (Md. 1985)

(citing 4 W. Blackstone, Commentaries *34-40; 2 J. Stephen, A History of the Criminal Law of

England ch. 22, at 229-31 (1883)).46

Agresti, 234 A.2d at 285.47 Principals in the second degree are

46

See Osborne

common law of England as it then exis

47

Owens v. United

States, 982 A.2d 310, 317 (D.C. 2009) (quoting R. Perkins, Perkins on Criminal Law 656 (2d ed.

1969) (omission in original).

56

64a

not thems

Appendix D

McBryde v. State, 352 A.2d 324, 326 (Md. Ct. Spec. App. 1976).

Id. Principals in the second degree and

Id.; see also Murchison

v. United States, 486 A.2d 77, 82 n.5 (D.C. 1984)

Handy v. State, 326 A.2d 189,

An aider is one who assists, supports or supplements the efforts

of another in the commission of a crime. An abettor is one who instigates, advises or encourages

, comfort, or

Agresti, 234 A.2d at 285-86. Under

D.C. Code § 22-1805, only aiders and abettors can be charged and punished as principals for the

crimes they assist.48 Neither Congress nor the D.C. Council has ever recognized any other party

to a criminal offense. Thus, unlike state legislatures that have specifically amended their aiding

and abetting statutes to include co-conspirator liability, 49 the D.C. legislature has never expanded

vicarious liability for a substantive criminal offense to include co-conspirator liability. 50

48

In the District of Columbia, accessories after the fact are punished separately, with a far less

severe penalty than principals and accomplices. See D.C. Code § 22-1806.

49

E.g., Ky. Re

§ 2923.03

50

At common law, and prior to Pinkerton, a defendant was responsible for the acts of his coto establish as the act of all members of the

alleged conspiracy the overt act required by the federal conspiracy statute, (2) to show the extent

and duration of the conspiracy in relation to all the conspirators, or (3) as a rule of evidence to

57

65a

B.

Appendix D

THE JUDICIARY HAS NO POWER TO IMPOSE CRIMINAL

PUNISHMENT BASED ON A THEORY OF LIABILITY NOT

AUTHORIZED BY THE LEGISLATURE.

the power of punishment

is vested in the legislative, not in the judicial department. It is the legislature, not the Court,

United States v. Wiltberger, 18 U.S. 76,

95 (1820); see also Whalen v. United States

Although the courts

of the District of Columbia were created by Congress pursuant to its plenary Art. I power to

legislate for the District, and are not affected by the salary and tenure provisions of Art. III, those

courts, no less than other federal courts, may constitutionally impose only such punishments as

Congress has seen fit to authorize. . . . The Due Process Clause of the Fourteenth Amendment

. . . would presumably prohibit state courts from depriving persons of liberty or property as

punishment for criminal conduct except to the ext

omitted)); United States v. Bass

ecause of the seriousness of

criminal penalties, and because criminal punishment usually represents the moral condemnation

of the community, legislatures and not courts should define criminal activity. This policy

Vicarious Liability for Criminal Offenses of

Co-Conspirators, 56 Yale L.J. 371, 375prior to the Pinkerton case, the

doctrine had not, by its own force, supported an imposition of vicarious liability for substantive

offenses committed by co-conspirators. Where prosecutors had sought to hold the accused on

both counts, the question of guilt was apparently submitted to the jury either on evidence that he

Id.

at 376; see also Lawrence v. State, 63 A. 96, 97the acts and declarations of

each co-conspirator made during the progress of the execution of the object of the conspiracy

and in furtherance

Bloomer v.

State, 48 Md. 521, 530Before any act can be evidence against a man, it must be

shown to be an act done by himself, or another, acting by his authority, or in pursuance of a

common design. The text books on Evidence speaking of the acts and declarations of one of a

n the unlawful enterprize

being thus shown, every act and declaration of each member of the confederacy in pursuance of

the original concerted plan, and with reference to the common object, is in contemplation of law,

.

58

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Appendix D

Missouri v. Hunter, 459 U.S. 359, 368 (1983)

McNeely v. United States, 874

definition of the elements of a criminal offense is entrusted to

Liparota v. United States, 471 U.S. 419, 424 (1985)).

This separation of powers principle applies in the District of Columbia, under both local

law and federal constitutional law. See D.C. Code § 1principle of separation of powers in the structure of the D

Wilson v. Kelly

structuring [the District of Columbia]

government, Congress is not bound by the separation of powers limitations that control its

powers at the national level. Nonetheless, in the District Charter, Congress chose to create, as a

general proposition, the familiar tripartite structure of government for the District. . . . [I]t is

n each

branch that the same general principles should govern the exercise of such power in the District

Whalen, 445

U.S. at 689 n.4 (holding that federal separation of powers principles preclude D.C. courts from

imposing criminal punishments not authorized by Congress).

Accordingly, this Court has steadfastly refused to expand criminal liability beyond what

the legislature has prescribed by statute.51 For example, in Little v. United States, 709 A.2d 708

51

rules of proof that were originally designed to ensure the

See, e.g., United

States v. Jackson, 528 A.2d 1211, 1219Arnold v. United

States, 358 A.2d 335, 343-44 (D.C.

59

67a

dead at the time the defenda

Appendix D

Id. at 712. The Court reasoned

that this rule was in effect when the accessory after the fact statute was enacted in 1901, and that

-century that has elapsed

Id. at 712-13. Although the rule had been repealed by statute in many jurisdictions,

remained unchanged in pertinent respects for almost a century, should be affected by legislative

Id. at 714. This Court held:

ree, the scope of a statutory criminal

offense, our authority to do so must be exercised with restraint, lest we intrude upon the

prerogatives of the legislative branch and the liberties of the citizen. Accordingly, we

to amend the venerable common law rule . . . .

legislature, and not the court, should decide whether the common-law rule, which is by

Id. at 714 (alteration in original). See also United States v. Heinlein, 490 F.2d 725, 736 (D.C.

Cir. 1973) (refusing to expand the felony murder doctrine beyond what was incorporated from

Maryland common law in the 1901 Code);

, 399 A.2d at 25 (holding that the common

prosecution

in the Maryland common law in 1801 and

thus incorporated into D.C. law by the 1901 Code).

Because no statute in the District of Columbia provides that a defendant may be punished

for the crimes committed by his co-conspirators in furtherance of the conspiracy, and because

only the legislature, and not the judiciary, may create or expand criminal liability in the District

of Columbia, the trial court erred in instructing the jury on a Pinkerton theory of co-conspirator

60

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Appendix D

liability. Although the validity of the Pinkerton instruction as part of D.C. law is an issue of first

impression,52 state courts that have considered the issue have held that, in the absence of a state

statute authorizing co-conspirator liability, the Pinkerton

criminal law and may not be used in state criminal trials. As the New York Court of Appeals has

persuasively reasoned:

ficient to

support a conviction for a substantive offense committed by a coconspirator, it is noted

that the Legislature has defined the conduct that will render a person criminally

responsible for the act of another. Conspicuously absent from [the aiding and abetting

statute] is reference to one who conspires to commit an offense. That omission cannot be

supplied by construction. Conduct that will support a conviction for conspiracy will not

perforce give rise to accessorial liability. True, a conspira

will suffice to establish liability as an accomplice, but the concepts are, in reality,

of the substantive crime without any evidence of further action on the part of the

defendant, would be to expand the basis of accomplice liability beyond the legislative

design.

The crime of conspiracy is an offense separate from the crime that is the object of the

conspiracy. Once an illicit agreement is shown, the overt act of any conspirator may be

attributed to other conspirators to establish the offense of conspiracy and that act may be

the object crime. But the overt act itself is not the crime in a conspiracy prosecution; it is

merely an element of the crime that has as its basis the agreement. It is not offensive to

permit a conviction of conspiracy to stand on the overt act committed by another, for the

act merely provides corroboration of the existence of the agreement and indicates that the

agreement has reached a point where it poses a sufficient threat to society to impose

sanctions. But it is repugnant to our system of jurisprudence, where guilt is generally

personal to the defendant, to impose punishment, not for the socially harmful agreement

to which the defendant is a party, but for substantive offenses in which he did not

participate. We refuse to sanction such a result and thus decline to follow the rule

adopted for Federal prosecutions in Pinkerton v. United States. Accessorial conduct may

52

Although Pinkerton

this Court has

never expressly adopted the doctrine as a matter of D.C. law, much less considered whether it

conspirator liability do not constitute precedent on the question presented here. See Murphy v.

McCloud

brought to the attention of the court nor ruled upon, are not to be considered as having been so

decided as to constitute precedents. The rule of stare decisis is never properly invoked unless in

the decision put forward as precedent the judicial mind has been applied to and passed upon the

precise question. A point of law merely assumed in an opinion, not discussed, is not

61

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Appendix D

not be equated with mere membership in a conspiracy and the State may not rely solely

on the latter to prove guilt of the substantive offense.

People v. McGee, 399 N.E.2d 1177, 1181-82 (N.Y. 1979) (citations omitted). 53 Numerous other

state courts have held the same. See, e.g., State ex rel. Woods v. Cohen, 844 P.2d 1147, 1151

liability. Pinkerton liability is not within the statutory universe. Therefore, Pinkerton liability is

State v. Nevarez

need not decide whether application of the Pinkerton theory would be advisable as a matter of

public policy because we find it to be inconsistent with Idaho statutes. It is the province of the

Idaho legislature, not the courts, to define the elements of a crime. Therefore, Idaho courts are

Bolden v. State, 124 P.3d 191,

and authority of the Legislature. No statutory underpinning for the Pinkerton rule exists in

Nevada. In the absence of statutory authority providing otherwise, we conclude that a defendant

may not be held criminally liable for the specific intent crime committed by a coconspirator

simply because that crime was a natural and probable consequence of the object of the

conspiracy.

State v. Small, 272 S.E.2d

a crime and prescribe its punishment, not the courts or the district attorney. Accordingly, we join

the ranks of those who reject the rule in Pinkerton

State v. Stein, 27 P.3d

184, 188 (Wash. 2001) (en banc) (rejecting co-conspirator liability as not authorized by the

conspiracy statute or the accomplice liability statute); see also Commonwealth v. Stasiun, 206

N.E.2d 672, 680 (Mass. 1965) (

conspirator is as matter of law an

53

H.R. Rep. No. 91-907, at 66 (1970) (Committee Report).

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Appendix D

aider or abettor in the perpetration of the crimes whose commission he has agreed with others to

accomplish. We are mindful that a different rule now prevails in the Federal courts as a result of

the decision in Pinkerton v. United States, although prior to that decision the views of the lower

Federal courts were conflicting. . . . With deference, we are not persuaded to follow the

Pinkerton

supra

Pinkerton rule never gained broad

acceptance, the opposition to it has grown significantly in recent years. It was rejected by the

draftsmen of the Model Penal Code and of the proposed new federal criminal code. Most of the

state statutes on accomplice liability require more than membership in the conspiracy, and the

language in these statutes has been relied upon by courts in rejecting the conclusion that

his

Court should follow the sound reasoning of its sister courts and conclude that, because Pinkerton

liability is not authorized by D.C. statute, it cannot form the basis of a D.C. criminal conviction.

C.

REVERSAL IS REQUIRED.

Because the trial court instructed the jury on a legally invalid theory of criminal liability,

and because it is impossible to discern from the general verdicts whether any of the jurors relied

on that invalid theory to convict Ashby of the charged offenses, reversal is required. See Yates v.

United States

requires a verdict to be set aside in cases where the verdict is supportable on one ground, but not

on another, and it i

Thomas v. United

States

Yates, we need not conduct a harmlessness

analysis under Chapman v. California. Where it cannot be determined whether the conviction

Coghill v. United States

]henever various alternative

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Appendix D

theories of liability are submitted to a jury, any one of which is later determined to be [legally]

improper, the conviction cannot be sustained. This is because of the possibility that the verdict

might have rested entirely u

IV.

THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT RULED THAT

POLICE COULD SEARCH

ITHOUT A WARRANT.

On January 9, 2010, police seized a cell phone from Ashby during a search incident to his

arrest. 7/2/13 Tr. 292; 7/16/13 Tr. 469. Two days later, on January 11, 2010, Detective Greene

-89. Although Greene initially testified that he did not turn on or look

inside the phone because he would need a search warrant to do so, he later admitted that, prior to

obtaining a search warrant, he turned on the phone and used it to call himself in order to discover

Id. at 494-96; 7/29/13 Tr. 52-53.54

United States v. Wurie, 728 F.3d 1 (1st Cir. 2013). R.

ion in United States v. Flores-Lopez, 670 F.3d 803 (7th

ch a limited search did not require a warrant. 7/30/13 Tr. 31. The trial court agreed

Id. at 32-33.

54

phone, call their own cell number to try to get the number on the caller I.D. of their own phone,

what the

64

72a

Appendix E

73a

Appendix E

74a

Appendix E

75a

Appendix E

76a

Appendix E

77a

Appendix E

78a

Appendix E

79a

Appendix E

80a

Appendix E