CERTIFICATE AS TO PARTIES,
RULINGS, AND RELATED CASES
I. PARTIES AND AMICI:
The parties below and in this court are the defendant-appellant, xxxxxxx Lamont xxxxxxx, and the plaintiff-appellee, the
United States of America. There are no intervenors or amici,
either in the district court or this court.
II. RULINGS UNDER REVIEW:
In this appeal, defendant challenges the district court's
denial of motions to sever counts and the court's failure to give
a self-defense instruction upon request. There are no official
citations to the district court's rulings.
III. RELATED CASES:
This case has not been before this court or any other court
previously. Thee are no related cases of which defendant is aware.
TABLE OF CONTENTS
ISSUES PRESENTED1
STATUTES AND REGULATIONS1
STATEMENT OF JURISDICTION 2
STATEMENT OF THE CASE2
A. Procedural Background2
STATEMENT OF FACTS5
A. The Government's Evidence5
The May 12, 1994 Episode5
The July 8, 194 Episode8
B. The Defense Evidence14
SUMMARY OF ARGUMENT15
ARGUMENT16
I.THE DISTRICT COURT ERRED IN FAILING TO
INSTRUCT THE JURY ON SELF-DEFENSE16
A. The Standard of Review16
B.Because There Was Evidence of Self-Defense in the Government's Case,
the Jury Should Have Been Instructed
on the Principles of Self-Defense16
II.THE DISTRICT COURT ERRED IN FAILING TO SEVER
THE COUNTS INT EH INDICTMENT RELATING TO THE
MAY 12 DRUG TRANSACTION22
A. The Standard of Review 22
B.The Drug Counts Were Improperly
Joined With the Counts Growing Out
of the Shooting of Agent Turman22
III.THE DISTRICT COURT ERRED IN PERMITTING THE
GOVERNMENT TO PROVE THE OFFENSE CHARGED IN
COUNT EIGHT OF THE INDICTMENT BY INFORMING THE
JURY THAT MR. xxxxxxx HAD PREVIOUSLY BEEN
CONVICTED OF A FELONY26
A. The Standard of Review26
B.The Trial Court Should Have Granted The
Defense Request to Permit the Court To
Decide, Based Upon A Defense Stipulation,
The Issue of Mr. xxxxxxx's Prior Felony
Conviction26
CONCLUSION29
CERTIFICATE OF LENGTH30
CERTIFICATE OF SERVICE30
TABLE OF AUTHORITIES
Cases
Brooke v. United States,
385 F.2d 279 (D.C. Cir. 1967)18, 21
United States v. Brown,
16 F.3d 423 (D.C. Cir.),
cert. denied, 115 S.Ct. 257 (1994)26
United States v. Burkley,
591 F.2d 903 (1979)24
United States v. Daniels,
770 F.2d 1111 (D.C. Cir. 1985)27
United States v. Davis,
1996 WL 378611, July 9, 199628
United States v. Dockery,
955 F.2d 50 (D.C. Cir. 1992)27-28
United States v. Fennell,
53 F.3d 1296 (D.C. Cir. 1995)28
United States v. Grissom,
645 F.2d 461 (5th Cir. 1981)16
United States v. Johnson,
970 F.2d 907 (D.C. Cir. 1992)25
United States v. Lewis,
693 F.2d 189 (D.C. Cir. 1982)24
United States v. Payne,
805 F.2d 1062 (D.C. Cir. 1988)18
United States v. Perholtz,
842 F.2d 343 (D.C. Cir.),
cert. denied, 109 S.Ct. 65 (1988)24
United States v. Tarrantino,
846 F.2d 1384 (D.C. Cir. 1988)18
United States v. Taylor,
997 F.2d 1551 (D.C. Cir. 1993)16, 21
Miscellaneous
Criminal Jury Instructions for the
District of Columbia, Fourth Edition16
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
_______________________________________________________________
NO. 95-3155
_______________________________________________________________
BRIEF OF APPELLANT
_______________________________________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
xxxxxxx LAMONT xxxxxxx,
Defendant-Appellant.
_________________________________________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________________________________
ISSUES PRESENTED
I. Whether the district court erred in failing to instruct
the jury on self-defense.
II. Whether the district court erred in denying Mr. xxxxxxx's
motion to sever the counts in the indictment relating to the May 12
drug transaction.
III. Whether the district court erred in permitting the
government to prove the offense charged in Count Eight of the
indictment by informing the jury that Mr. xxxxxxx had previously
been convicted of a felony.
STATUTES AND REGULATIONS
The pertinent statutes and regulations appear in the addendum
to this Brief.
JURISDICTION
The district court had jurisdiction under 18 U.S.C. § 3231.
The notice of appeal having been filed within the ten-day period of
Fed. R. App. P. 4(b), this court has jurisdiction pursuant to 18
U.S.C. § 3742.
STATEMENT OF THE CASE
A. Procedural Background
On July 26, 1994, a federal Grand Jury returned a twelve-count
indictment charging defendant xxxxxxx Lamont xxxxxxx with attempted
murder of a federal officer, assault on a federal officer, and
various firearms and drug offenses, growing out of an incident
occurring on July 8, 1994. APP. 1.
On August 25, 1994, a
superseding indictment was filed charging defendant xxxxxxx with
assault on a federal officer, in violation of 18 U.S.C. § 111;
attempted murder of a federal employee, in violation of 18 U.S.C.
§ 1114; using a firearm during and in relation to a crime of
violence, in violation of 18 U.S.C. § 924(c); possession of a
firearm during a crime of violence, in violation of 22 D.C. Code §
3204(b); assault with intent to commit robbery while armed, in
violation of 22 D.C. Code, § 501, 3202; carrying a pistol without
a license, in violation of 22 D.C. Code § 3204(a); possession of a
firearm after having been convicted of a felony, in violation of 18
U.S.C. § 922(g); possession of a firearm by a fugitive from
justice, in violation of 18 U.S.C. § 922(g); possession of a
firearm by a controlled substance user, in violation of 18 U.S.C.
§ 922(g); possession of ammunition after having been convicted of
a felony, in violation of 18 U.S.C. § 922(g); possession of
ammunition by a fugitive from justice, in violation of 18 U.S.C. §
922(g); possession of ammunition by a controlled substance user, in
violation of 18 U.S.C. § 922(g); possession of a firearm with an
altered serial number, in violation of 18 U.S.C. § 922(k); all
occurring on July 8, 1994, and with distribution of crack cocaine,
in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1(c); and
distribution of crack cocaine within 1000 feet of a school, in
violation of 21 U.S.C. § 860(a), all occurring on May 12, 1994.
APP. 7.
Prior to trial, the government moved to sever the counts of
the indictment charging possession of a firearm and ammunition by
a controlled substance user and to dismiss the counts charging
possession of a firearm and ammunition by a fugitive from justice.
Tr. 1/4/95, 15.
The district court, the Honorable Thomas F.
Hogan, granted those motions. Id., 17-18. The government
subsequently filed a redacted indictment with the court,
eliminating the dismissed and severed counts. APP. 15.
Pretrial motions were filed by the defense to sever the counts
relating to the May 12, 1994 drug distribution to the confidential
informant, to sever the felon in possession counts, and to suppress
statements made by defendant xxxxxxx subsequent to his arrest. On
November 18 and November 21, 1994, the district court heard and
denied the motion to suppress statements.
The court also denied
the defense motion to sever the two counts of the indictment
relating to the May 12 drug distribution. Tr. 1/4/95, 17. On
January 4, 1995, the district court also denied the defense motion
to sever the felon in possession counts, permitting the government
to introduce at trial a document which reflected that Mr. xxxxxxx
had previously been convicted of an offense for which he was
sentenced to a term of imprisonment of five years. Tr. I-10; V-48-53.
Trial commenced on the redacted indictment on January 12,
1995. At the close of the evidence, the defense requested that the
district court instruct the jury on the principles of self-defense.
Tr. IV-94, V-106, VI-41. The court denied the request. Tr. V-115,
VI-42.
On January 20, 1995, the jury returned verdicts of not guilty
of attempted murder of a federal employee and not guilty of assault
with intent to commit robbery while armed. Tr. VI-52-53. Mr.
xxxxxxx was convicted of the other ten counts of the redacted
indictment. Id., 53-54.
Mr. xxxxxxx was sentenced on September 19, 1995. After notice
to the parties, the district court departed upward from the
applicable guideline range, based upon a finding by a preponderance
of the evidence that Mr. xxxxxxx attempted to kill agent Dennis
Turman, an agent of the Bureau of Alcohol, Tobacco and Firearms
(ATF), a charge for which the jury had acquitted him. Tr. 9/19/95,
38, 43-47. Additionally, the court concluded that Mr. xxxxxxx's
conduct in attempting to kill agent Turman had inflicted permanent
bodily injury upon him, thereby enhancing the offense level for the
acquitted conduct. Id., 40. The court imposed a sentence of 270
months on the several counts of conviction, to be followed by a
term of supervised release of six yrs. Tr 9/19/95, 63.
Additionally, the court ordered payment of special assessments
totaling $550. Id. 64; APP. 168. A timely notice of appeal was
filed on September 20, 1995. APP. 173.
STATEMENT OF FACTS
A. The Government's Evidence
The May 12, 1994 Episode
Shon Louise Martin Rogers testified that in May of 1994, she
was working as a paid informant for the Bureau of Alcohol, Tobacco
and Firearms (ATF). Tr. I-15. She had been working with ATF in
that capacity for about three years, since 1991, during which
period she had been paid about $38,000. Tr. I-16-17. She first
started working with the agency in Los Angeles, California, but
moved to Washington, D. C. in May, 1994. Tr. I-17. She lived in
an apartment on the second floor at 617 Morton Street, N. W., and
posed as the girlfriend of an ATF agent, Dennis Turman. Tr. I-17-18, 28. For her services, she was paid $250 per week, plus living
expenses. Tr. I-18.
While she was living on Morton Street, she met a woman named
Helen who also lived in the building and who was a drug user. Tr.
I-28-29. Rogers asked Helen if she knew where Rogers could buy
some rock cocaine, and Helen said that she did. Tr. I-29. On May
12, 1994, she got money from ATF with which to purchase drugs, and
she and the agent readied themselves for an anticipated drug
transaction by turning on a video camera which was installed in the
apartment, and a tape recorder which was to record from a
transmitter worn by Rogers. Tr. I-29-30. Rogers then approached
Helen about acquiring drugs. Tr. 29. Helen agreed to find a
supplier, and she joined Rogers in the apartment to await his
arrival. Rogers did not know the identity of the supplier at that
time. Tr. I-31.
As Rogers and Helen occupied themselves playing cards in the
apartment, a man who was introduced to Rogers as "Lamont" arrived.
Tr. I-32. Rogers asked "Lamont" for an "eight-track," a west coast
term for an eighth of an ounce of rock cocaine. Tr. I-33-34.
After some discussion about the meaning of the term, "Lamont" sold
Rogers several bags with rocks of cocaine. Tr. I-34. She gave him
$120 for the rocks. Tr. I-35.
"Lamont" told Rogers that he had an eighth of an ounce of
cocaine at home and gave her his pager number. She wrote the pager
number down on a piece of paper, together with the code "617" that
he instructed her to use when calling him. Tr. I-36. After
"Lamont" left, Rogers gave Helen a rock of cocaine for setting up
the drug transaction. Tr. I-39.
The government called Detective Tyrone Thomas as an expert
witness in various aspects of drug activity. Tr. II-79,86.
Detective Thomas testified about how drug dealers use pagers in the
drug business. Tr II-89. He also testified about the popularity
of 9 millimeter firearms with drug dealers. Tr. II-90-91. He
testified that both drug dealers and drug buyers are frequent
victims of robbery with firearms. Tr. II-92. The detective
explained how police officers pose as drug dealers or drug
purchasers, and about how suspicious dealers and purchasers are of
each other until they become acquainted. Tr. II-94-95. According
to the detective, in the spring of 1994, a half-ounce of crack
cocaine was selling for about $500; a price of $400 was low to very
low. Tr. II-104. Agent Dennis Turman testified that he had
been a special agent with ATF since July, 1990. Tr. II-132. On
May 12, 1994, he was assigned to an investigation a 617 Morton
Street, N.W. Tr. II-133. He was working with an informant known
as "Peaches," whose real name was Shon Martin, posing as her
boyfriend. Tr. II-135. From a bedroom in the apartment on Morton
Street, he monitored Martin's activities on May 12 by using a two-way radio which picked up conversations via a transmitter worn by
Martin. Tr. II-136. He heard a male who said his name was
"Lamont" in a conversation with Martin about various quantities of
cocaine, including rocks of cocaine. Tr. II-140. He heard money
being exchanged. Tr. II-141. Afterwards, he observed a man, whom
he identified as Mr. xxxxxxx, leaving the apartment building. Tr.
II-141.
A chemist with the Drug Enforcement Administration testified
that she performed an analysis of the rocks of cocaine sold to the
informant on May 12, 1994, and concluded that the rocks were
cocaine base weighing 1.179 grams. Tr. II-177-78, 188, 192.
An officer of the Metropolitan Police Department testified
that the location of the Morton Street apartment was within 1000
feet of a school. Tr. II-218-20.
The July 8, 1994 Episode
Agent Dennis Turman was recalled concerning the events of
July 8, 1994. He testified that on that date he was working out of
the apartment at 617 Morton Street, N.W. He used the apartment to
make drug purchases. He arrived at the apartment at about 2:00
p.m. Tr. III-42, 50. He was wearing a transmitter which permitted
other ATF agents to monitor his activities, as well as a recorder.
Tr. III-43. On entering the apartment, he placed a bag containing
a video camera on a table in the living room area. Tr. III-43, 45.
He left the apartment for a moment and turned the camera on. Tr.
III-47. While outside the apartment, he was approached by a man
who agreed to sell him a half-ounce of cocaine for $475. Tr. III-48-49. He agreed to meet the man at the apartment. As he was
returning to the apartment, he saw Mr. xxxxxxx, whom he recognized
from the occasion of May 12.
Tr. III-51. Mr. xxxxxxx gestured to
him, and when the agent walked over to him, Mr. xxxxxxx asked him
what he was looking for. He said that he was looking for a half-ounce. Tr. III-52. Mr. xxxxxxx then offered to sell him a half-ounce of crack cocaine for $400. Tr. III-53. The agent invited
Mr. xxxxxxx to meet him in the apartment. Tr. III-54.
Agent Turman returned to the apartment, made sure the video
camera was on, turned off the transmitter he was wearing, and
checked the apartment to make sure he had not left in view anything
that would reveal his identity. Tr. III-54-55. The recorder was
activated. Tr. III-55, 60-61. On that date, the agent was armed
with a .38 caliber revolver, which he concealed in a small holster
strapped to his midriff. Tr. III-57-58.
Shortly after the agent returned to the apartment, Mr.
xxxxxxx knocked on the door. The agent was seated at a table in
the living room, counting money. Tr. III-61. Mr. xxxxxxx came
into the apartment and went toward the back of the apartment,
looking into closets, the bathroom and the two bedrooms as he did
so. Tr. III-62. The agent asked Mr. xxxxxxx if he had brought the
drugs, and he said that he had. As he made his way through the
apartment, Mr. xxxxxxx accused the agent of acting suspicious. Tr.
III-63.
Agent Turman went into the pantry, got a scale for weighing
the drugs, and placed it on the dining room table. Id. As the
agent sat down to calibrate the scale, he looked up and saw Mr.
xxxxxxx cock a semiautomatic pistol, raise the pistol and point it
at him. The agent immediately assured Mr. xxxxxxx that the drugs
were good. Tr. III-64. Mr. xxxxxxx backed away from him and
ordered him to lay on the floor. The agent refused, telling Mr.
xxxxxxx not to shoot him. Tr. III-65. As he did so, he retreated
from Mr. xxxxxxx. Mr. xxxxxxx told him that if he took another
step, he would "bust" him. Tr. III-65. The agent then spun around
and ran down the hallway into a bedroom. Id.
As Agent Turman was running, he grabbed his gun. He ran into
the bedroom and crouched by the door. When he looked out of the
door toward the hallway, he heard a gunshot and saw a flash. Tr.
III-66. The agent then fired three shots at the area where he had
seen the flash, from the pantry area, by the door. Tr. III-67. As
he fired, he identified himself as a police officer. Mr. xxxxxxx
was yelling, "Come on in. Come on in." Tr. III-67. Again, the
agent identified himself as a police officer and told Mr. xxxxxxx
to throw his gun out. Id. Mr. xxxxxxx then yelled to the agent,
"Hey, man, you trying to rob me? You trying to rob me or
something?" Tr. III-68. The agent repeated that he was a police
officer, at which time Mr. xxxxxxx fired again. Id. As the agent
repeatedly identified himself as a police officer, Mr. xxxxxxx
demanded each time to see his badge. Tr. III-120. The agent did
not display his badge; he did not have a badge on that day. Id.
During this exchange, Mr. xxxxxxx repeatedly accused the agent of
trying to rob him. Tr. III-122.
While he was in the bedroom, crouched to fire his gun, Agent
Turman realized that he had been wounded in his right arm. He was
unable to shoot with his left hand without being exposed, so he
kept telling Mr. xxxxxxx to throw his gun out. Mr. xxxxxxx fired
three or four more shots. Tr. III-68. During the shooting, Agent
Turman had called for officers to assist him. When the officers
arrived, they placed Mr. xxxxxxx under arrest. The agent then ran
from the apartment. Tr. III-69.
Agent Turman suffered five gunshot wounds to his arm and
shoulder. Tr. III-78-79. He subsequently underwent surgery to
repair damage from the wounds. Tr. III-80.
The video camera which the agent had placed in the
apartment recorded the events surrounding the shooting. The
videotape was admitted into evidence. Tr. III, 77. On the
videotape, Mr. xxxxxxx was depicted saying to the agent, "You're
trying something. You acting funny," just before he pulled the 9
millimeter and cocked it. Tr. III-81-82. Mr. xxxxxxx said, "I
know you acting kinda funny, man, like you might be trying
something. You trying something, huh?" When he said that, the
agent reminded Mr. xxxxxxx that he knew "Peaches," the agent's
supposed girlfriend. Tr. III-109. Mr. xxxxxxx said nothing about
a robbery to the agent, or "This is a stickup," or "Give me your
money," or "I've come here to kill you." Tr. III-109, 111. As Mr.
xxxxxxx approached the agent with the gun, as the agent was moving
away from him, Mr. xxxxxxx was behaving in a protective fashion, as
the agent had been taught to do, keeping enough distance between
them to prevent the agent lunging at him, protecting the gun,
ordering the agent to lie down. Tr. III-83-84.
When the agent turned and made his way to the bedroom, Mr.
xxxxxxx did not fire at him. Tr. III-112. As the agent made his
way down the hallway, Mr. xxxxxxx had his back to a wall. Tr III-114. On the videotape, an object hit the wall as the agent was
facing Mr. xxxxxxx, backing away down the hallway. Tr. III-115.
The sound of a gunshot could be heard on the tape at that point.
Tr. III-114-116. The agent could not recall whether it was a
bullet from his gun that hit the wall. Tr. III-116. Nor could he
say whether he fired the shot that hit the wall. Tr. III-117. The
first shot the agent recalled was the shot that was fired when he
ran to the bedroom and took a position of cover in the doorway, by
which time Mr. xxxxxxx was in the pantry of the apartment. Tr.
III-118.
Sgt. Russo of the United States Park Police testified that he
responded to the Morton Street apartment on the afternoon of July
8, 1994. Tr. IV-46. When he arrived, Mr. xxxxxxx was in custody
in the apartment. Tr. IV-47-48. He observed another officer
remove a pager from Mr. xxxxxxx's pants pocket. Tr. IV-48-49. In
a courtroom demonstration, Sgt. Russo used a cellular telephone to
call the pager number that Shon Martin Rogers had testified was
given to her on May 12, 1994 by the man known to her as "Lamont."
He entered the code "617" into the cellular telephone. He then
checked the pager he saw recovered from Mr. xxxxxxx, and the pager
displayed the code that he had entered. He repeated that
demonstration using his own code, and again the code was reflected
in the pager. Tr. IV-50-51.
The parties entered into a stipulation that the Sig-Sauer 9
millimeter pistol recovered from the apartment by police after the
shooting on July 8 had been shipped in interstate commerce. Tr.
IV-56-57.
The government's final witness was Agent John O'Neil, a senior
firearms and tool mark examiner with ATF. Tr. IV-66, 77. From his
study of the apartment after the shooting, he noted where bullets
were found in the wall, the pantry door and other areas of the
apartment, and where cartridges which are ejected during firing
were found, and was able to calculate the trajectory of the eleven
bullets which were fired in the apartment. Tr. IV-96-99, 132. He
found a .38 caliber bullet in the plaster wall of the apartment.
Tr. IV-103-104. From bullet holes in the pantry door, he was able
to determine the sequence in which shots were fired into both sides
of the door. Tr IV-107, 128. Eight shots were fired from the 9
millimeter pistol; five of them went through the pantry door and
three of them struck the refrigerator and stove. Tr IV-133. Three
shots were fired from the agent's .38 revolver. Id. Based upon an
examination of Agent Turman's shirt, the pantry door and other
evidence in the apartment, O'Neil concluded that the agent was shot
from behind. IV-167-168.
On cross-examination, O'Neil testified that because he found
an indentation in the .38 revolver consistent with a bullet fired
from the 9 millimeter pistol which hit Agent Turman, the agent had
his gun in his hand when he was shot. Tr. V-26. The agent
acknowledged that the first gunshot that was heard on the videotape
was consistent with a simultaneous explosion of dust in the wall
that he determined was made by a .38 caliber bullet hitting the
wall. Tr. V-27. The bullets which the agent determined were fired
from inside the pantry left holes in the pantry door which were at
about waist level. Tr V-33. The two bullet holes in the pantry
door made by the .38 revolver are head-high. Id. The location of
the bullet holes made by the 9 millimeter were consistent with
someone ducking gunshots and firing. Tr. V-34.
The government offered into evidence a document under seal
from the Circuit Court for Prince George's County showing that on
March 19, 1992, xxxxxxx Lamont xxxxxxx was sentenced to the custody
of the Department of Corrections for a period of 5 years, with all
but 166 days suspended, to be followed by a period of two years
supervised probation. Tr. V-48.
B. The Defense Evidence
The defense introduced into evidence an audiotape made by the
transmitter worn by Agent Turman on July 8, 1994, a photograph of
the Morton Street apartment, a portion of a report prepared by
Agent Turman, and an exhibit showing that the government declined
to prosecute Shon Rogers Martin for distribution of a $10 rock of
cocaine base to "Helen" on May 12, 1994. Tr. V-65, 72-73. The
defense called no witnesses.
SUMMARY OF ARGUMENT
The trial court erred in failing to give self-defense
instructions requested by the defense, in light of the evidence in
the government's case which supported the giving of the
instruction. From the government's witnesses and other evidence
admitted at trial, a jury could have concluded that Mr. xxxxxxx
displayed a weapon to the ATF agent because he was fearful that the
agent, posing as a drug purchaser, was about to rob him. The jury
could also have concluded that Mr. xxxxxxx fired at the agent only
after the agent fired at him. The instructions proposed by the
defense were substantively correct, were not covered in other of
the court's final instructions, and related to a central issue in
the case. Therefore, failure to give the instructions was
reversible error.
The district court erred in failing to sever counts relating
to a May 12, 1994 drug transaction from the counts relating to the
episode of July 8, 1994. Witnesses to the two sets of offenses
were different, the drug transaction of May 12 was unrelated to the
July 8 shooting, and the two sets of offenses were not part of a
common scheme or plan, or otherwise related to each other. The two
sets of offenses were improperly joined, and should have been
severed for trial.
The district court failed to protect Mr. xxxxxxx from unfair
prejudice when it allowed the government to introduce evidence of
a prior felony conviction in the face of a defense offer to
stipulate to the court with regard to the prior conviction. The
government's insistence on putting proof of the felony conviction
before the jury served no legitimate interest and served to
prejudice Mr. xxxxxxx in the eyes of the jury.
ARGUMENT
I. THE DISTRICT COURT ERRED IN FAILING
TO INSTRUCT THE JURY ON SELF-DEFENSE.
A. The Standard of Review
A refusal to give an instruction requested by the defense is
reversible error where the requested instruction "1) is
substantively correct; 2) was not substantially covered in the
charge actually delivered to the jury; and 3) concerns an important
point in the trial so that the failure to give it seriously
impaired the defendant's ability to effectively present a given
defense." United States v. Taylor, 997 F.2d 1551, 1558 (D.C. Cir.
1993) (quoting United States v. Grissom, 645 F.2d 461, 464 (5th
Cir. 1981)).
B. Because There Was Evidence of Self-Defense
in the Government's Case, the Jury Should
Have Been Instructed on the Principles of
Self-Defense.
At several points during trial, the defense requested that the
trial court, in its final instructions, include instructions on
self-defense. Specifically, the defense requested instructions
5.12, 5.13B and 5.14B of the Criminal Jury Instructions for the
District of Columbia, Fourth Edition (the "Redbook"). Tr. IV-94,
V-106, VI-41.2
. After argument, the district court declined to
give the instructions. Tr. V-115, VI-42. No self-defense
instruction of any kind was included in the court's final
instructions to the jury. Tr. VI.
The court was persuaded that there was no evidence from which
a reasonable jury could conclude that Mr. xxxxxxx could have
reasonably believed that he was in actual danger in the interaction
with agent Turman on the day of the shooting, so as to find that he
acted in self-defense in the assault and shooting of agent Turman.
Tr. V-80, 83. The court based that conclusion on the fact that the
evidence showed that Mr. xxxxxxx was the first of the two parties
to display his gun. Tr. V-86. The court reviewed the evidence,
and determined that when Mr. xxxxxxx displayed his gun, the agent
had done nothing to threaten him. Id., 87.
The court's refusal to instruct the jury on the principles of
self-defense ran afoul of the settled law of this circuit, which is
that a defendant is entitled to an instruction on his theory of
defense, if there is any evidence tending to support the
instruction, no matter how weak the evidence or how implausible the
defense theory. United States v. Tarantino, 846 F.2d 1384, 1401
(D.C. Cir. 1988); United States v. Payne, 805 F.2d 1062, 1067
(D.C. Cir. 1986); Brooke v. United States, 385 F.2d 279 (D.C. Cir.
1967).
On the facts of this case, there was ample evidence to support
a self-defense instruction. The government's expert testified that
drug purchasers and sellers are the frequent victims of armed
robbery, Tr. II-92, and that until they become acquainted, dealers
and purchasers are typically wary of each other. Id., 94-95.
The evidence showed that when Mr. xxxxxxx entered the
apartment to make a sale to Agent Turman, he first looked around
the apartment, as if he was making sure that no one else was in the
apartment with the agent. Tr. III-62. As he proceeded through the
apartment, he accused the agent of acting suspiciously. Tr. III-63. At one point, he said to the agent, "You're trying something.
You acting funny." Tr. III-81-82. At that point, Mr. xxxxxxx
displayed a 9 millimeter weapon and pointed it at the agent. The
agent began to move away from Mr. xxxxxxx, and as he did so, Mr.
xxxxxxx behaved in the same protective fashion the agent had been
taught, keeping enough distance between them to prevent the agent
lunging at him, protecting the gun, ordering the agent to lie down.
Tr. III-83-84. When the agent refused to lie down, and fled to a
bedroom where he crouched at the door in a position to enable him
to fire his weapon, Mr. xxxxxxx did not fire his weapon at the
agent. Tr. III-112.
It was not until a bullet bounced off the wall behind Mr.
xxxxxxx's head, a bullet that the government's evidence showed came
from a .38 caliber revolver such as the one carried by the agent,
that Mr. xxxxxxx fired the 9 millimeter for the first time,
according to the videotape of the events in the apartment.
Tr. III-114-116. The first gunshot that is heard on the videotape
is consistent with the explosion of dust in the wall behind Mr.
xxxxxxx's head. Tr. V-27.
Mr. xxxxxxx took cover in the pantry of the apartment during
the time agent Turman was firing at him. The bullets which were
fired from inside the pantry left holes in the pantry door which
were about waist level, consistent with someone ducking from
gunshots and firing. Tr. V-33-34. As the agent was firing at Mr.
xxxxxxx, he yelled that he was a police officer. Mr. xxxxxxx
demanded to see his badge, which the agent did not produce. Tr.
III-67, 120. Mr. xxxxxxx continued to yell at the agent, "Hey,
man, you trying to rob me?" Tr. III-68.
From these facts, a reasonable juror might well have
concluded, if properly instructed on the principles of self-defense, that Mr. xxxxxxx was in fear that the agent was about to
harm him, when he pulled the 9 millimeter, and that the only reason
he fired at the agent was because the agent fired at him first.
The district court found that because the agent did not threaten or
assault Mr. xxxxxxx before he pulled the 9 millimeter, the defense
was unavailable. The court's ruling discounted the evidence on the
government's videotape that Mr. xxxxxxx acted as if he was fearful
of the agent, inspecting the apartment to make sure there was no
one else there, and repeatedly expressed his suspicion and fear of
the agent. The court also discounted the testimony of the
government's drug expert about the level of wariness among dealers
and purchasers who are unfamiliar with each other. Since the jury
could have credited that evidence, without crediting the
government's version that Mr. xxxxxxx inspected the premises as a
prelude to robbing the agent,
the defense was not legally
precluded, as the court determined. See, Brooke v. United States,
385 F.2d 279, 282-83 (D.C. Cir. 1967) (jurors may accept some but
not all of the testimony of a witness, may support a finding by
parts of the testimony of two or more witnesses, and may resort to
both prosecution and defense evidence; if, on this "pick-and-choose
basis" there is evidence to support the defense, an instruction is
warranted).
Applying the principles of United States v. Taylor, 997 F.2d
1551, 1558 (D.C. Cir. 1993), the refusal to give the requested
self-defense instructions was reversible error. The requested
instructions were substantively correct. The instructions were not
covered in substance in any other of the final instructions given
to the jury. Clearly, the theory of self-defense was an important
point in the trial, since had the jury believed that Mr. xxxxxxx
acted in self-defense, he could have been acquitted of assault on
a federal officer and using a firearm during a crime of violence,
two of the most serious counts of conviction.
Because there was evidence to support the theory of self-defense, the district court erred in failing to instruct on that
theory and Mr. xxxxxxx is therefore entitled to a new trial.
II. THE DISTRICT COURT ERRED IN FAILING TO
SEVER THE COUNTS IN THE INDICTMENT RE-
LATING TO THE MAY 12 DRUG TRANSACTION.
A. Standard of Review
The trial court's denial of the motion to sever counts as
improperly joined is reviewed for abuse of discretion. United
States v. Dockery, 955 F.2d 50 (D.C. Cir. 1993).
B. The Drug Counts Were Improperly Joined
With the Counts Growing Out of the
Shooting of Agent Turman.
Prior to trial, the defense moved to sever the counts relating
to the May 12 drug transaction from the counts relating to the
incident of July 8, when Agent Turman was shot, on the ground that
the counts were improperly joined under Fed. R. Crim. P. 8(a) and
14. The district court agreed with the government's argument that
evidence of the May 12 drug transaction was admissible at the trial
of the July 8 incident.
The court relied upon the fact that the shooting occurred in
the same apartment as the drug transaction, that Agent Turman was
present in the bedroom when the sale to the confidential informant
occurred, and that the agent saw Mr. xxxxxxx from a bedroom window
as Mr. xxxxxxx left the apartment building after the sale, that
during the July 8 incident, Mr. xxxxxxx referred to the informant,
whom he believed was the agent's girlfriend, as "Peaches," and that
the pager recovered from Mr. xxxxxxx after his arrest on July 8 was
activated by using the number given to the informant on May 12
following the drug transaction. The court concluded that since the
evidence of the May 12 transaction would be admissible at trial of
the July 8 incident, to show how "the situation" arose, how Mr.
xxxxxxx and the undercover officer happened to be in the same
apartment on July 8, the "evidence all fits in together and is not
unfair to the defendant to have him face those charges as well.
It's all part of the same situation." Tr. 1/4/95, 17. The court
therefore denied the motion to sever. Id.
Rule 8(a) of the Federal Rules of Criminal Procedure permits
joinder of offenses in a single indictment only where the offenses
are of the same or similar character, based on the same act or
transaction, or based on two or more acts or transactions connected
together or constituting parts of a common scheme or plan. Counts
One through Ten of the superseding indictment relate to the events
that surrounded the shooting of Agent Turman on July 8, 1994.
Counts Eleven and Twelve relate to a drug transaction on May 12,
1994, nearly two months earlier. The offenses are obviously not of
the same or similar character. Nor are the offenses based on the
same act or transaction. Therefore, the only arguable basis for
joinder in the same indictment is that the offenses are based upon
two or more acts or transactions connected together or constituting
parts of a common scheme or plan.
A review of the cases in which this court has upheld joinder
of offenses under the "common scheme or plan" rubric makes it clear
that the instant offenses were misjoined and should have been
severed. For example, in United States v. Perholtz, 842 F.2d 343,
358 (D.C. Cir.), cert. denied, 109 S.Ct. 65 (1988), the court
upheld convictions for several schemes to fraudulently procure
U. S. Postal Service contracts, finding the evidence highly
probative of efforts to further an ongoing scheme to defraud.
Likewise, in United States v. Lewis, 693 F.2d 189 (D.C. Cir.
1982), the court upheld the admission of evidence that the
defendant possessed a check-writing machine and that he had given
a witness fraudulent money orders to cash for him, to show that the
defendant had a system for passing stolen money orders. In United
States v. Burkley, 591 F.2d 903, 920 (1979), the court relied upon
the common scheme or plan language of Rule 404(b) to uphold the
admission of evidence of two separate heroin sales between the
defendant and the same undercover police officer, because the
evidence showed that the defendant was to be a continuing source of
heroin to the undercover officer purchaser.
By comparison, it is clear that the two sets of offenses in
the instant case are not based upon two or more transactions
connected together and that they do not constitute part of a common
scheme or plan. Admission of other-crimes evidence under the
common scheme or plan exception requires substantially more
similarity between offenses than is present in this case. See,
United States v. Johnson, 970 F.2d 907, 913 (D.C. Cir. 1992).
The district court confused the admissibility of certain
evidence from the May 12 transaction with whether the two sets of
offenses were properly joined in the first instance. Certainly,
evidence that the pager found on Mr. xxxxxxx at his arrest could be
activated by a number he had previously given a witness was
admissible to show ownership of the pager. Likewise, evidence that
Mr. xxxxxxx made reference to "Peaches" as someone he knew as the
agent's girlfriend would have been admissible to explain comments
made by Mr. xxxxxxx on the tape of the July 8 episode. However,
all that evidence could have been admitted without the joinder for
trial of unrelated offenses.
The offenses charged in counts eleven and twelve of the
indictment occurred nearly two months before the July 8 incident
and involved a witness (the confidential informant) who was not
present during the events of July 8. The May 12 offenses do not
involve any violence or use of a weapon. The two sets of offenses
are too dissimilar to be joined and the motion to sever should have
been granted.
III. THE DISTRICT COURT ERRED IN PERMITTING
THE GOVERNMENT TO PROVE THE OFFENSE
CHARGED IN COUNT EIGHT OF THE INDICTMENT
BY INFORMING THE JURY THAT MR. xxxxxxx HAD
PREVIOUSLY BEEN CONVICTED OF A FELONY.
A. The Standard of Review
The standard of review for prejudicial joinder of
offenses under Fed. R. Crim. P. 14 is abuse of discretion. United
States v. Brown, 16 F.3d 423, 426-27 (D. C. Cir.), cert. denied,
115 S.Ct. 257 (1994).
B. The Trial Court Should Have Granted The
Defense Request to Permit the Court To
Decide, Based Upon A Defense Stipulation,
The Issue of Mr. xxxxxxx's Prior Felony
Conviction.
Prior to trial, the defense filed a motion to sever Count
Eight of the indictment. At a pretrial hearing on the motion, the
defense offered to stipulate to the court that Mr. xxxxxxx had
previously been convicted of an offense punishable by imprisonment
for more than one year. The defense request was that the jury be
permitted to determine whether Mr. xxxxxxx possessed the firearm,
and if that question was answered in the affirmative, the court
then determine whether he had a prior felony conviction, based upon
the defense stipulation. Tr. 1/4/95, 7, 15-16. The government
agreed to limit the proof of the prior conviction to proof that it
was punishable by more than one year in prison, but declined to
permit the court to decide the question of the conviction after the
jury had decided whether Mr. xxxxxxx possessed the firearm. Id.,
8. The district court subsequently denied the motion to sever
count eight and denied the defense request to permit the court to
decide the question of the prior conviction once the jury found
that Mr. xxxxxxx had possessed the firearm. Tr. I-10. At trial,
the government introduced a document reflecting that Mr. xxxxxxx
had been convicted in 1992 of an offense for which he received a
prison sentence of five years, with all but 166 days of that
sentence suspended, to be followed by a period of two years
probation. Tr. V-48-53.
In United States v. Dockery, 955 F.2d 50 (D. C. Cir. 1992),
the court considered the prejudice to a defendant when the
government charges a felon-in-possession count, thereby informing
the jury of evidence concerning a defendant's prior conviction that
would be otherwise inadmissible. The court refused to establish a
per se rule that evidence of the prior conviction must be kept from
the jury, but made it clear that "if Rule 14 and the presumption of
innocence are to be given their proper content, a joint trial of
ex-felon counts must be conducted with `sufficiently scrupulous
regard for the defendant's right to a fair trial.'" Id., at 56
(quoting United States v. Daniels, 770 F.2d 1111, 1119 (D. C. Cir.
1985)).
The Dockery court suggested several ways to avoid prejudice to
a defendant from joinder of felon-in-possession counts. Among
those alternatives was that a trial judge can instruct the jury
solely on possession, withholding any evidence of the ex-felon
count until a verdict is reached. Then, if the jury finds the
defendant guilty of possession, the court can be asked to find
whether the defendant is an ex-felon. United States v. Dockery,
955 F.2d at 55 n.4.
As the defense pointed out to the trial court here, the
government had no real interest in insisting that the jury be
informed of the fact that Mr. xxxxxxx had previously been convicted
of a felony. The concession of Mr. xxxxxxx's counsel that he was
prepared to stipulate to that fact to the court made it a certainty
that if the jury found that he possessed the weapon, he would be
convicted on the felon-in-possession count. This court has very
recently recognized that such concessions are entitled to great
weight in determining whether prejudicial evidence should have been
admitted. See, United States v. Davis, 1996 WL 378611, July 9,
1996. In light of the unequivocal offer to stipulate by the
defense, and because the government would in no way have been
prejudiced by trying the felon-in-possession element to the court,
Mr. xxxxxxx's prior conviction should have been excluded. The
unnecessary admission of the evidence prejudiced Mr. xxxxxxx and
entitles him to a new trial.
CONCLUSION
For all the foregoing reasons, Mr. xxxxxxx's convictions
should be reversed and he should be granted a new trial.
Respectfully submitted,
A.J. KRAMER
FEDERAL PUBLIC DEFENDER
_________________________
Reita Pendry
Assistant Federal Defender
Counsel for xxxxxxx Lamont xxxxxxx
625 Indiana Avenue, N.W. #550
Washington, D. C. 20004
(202)208-7500