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
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
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
CERTIFICATE OF LENGTH30
CERTIFICATE OF SERVICE30
TABLE OF AUTHORITIES
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
Criminal Jury Instructions for the
District of Columbia, Fourth Edition16
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
BRIEF OF APPELLANT
UNITED STATES OF AMERICA,
xxxxxxx LAMONT xxxxxxx,
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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.
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.
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
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
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.
For all the foregoing reasons, Mr. xxxxxxx's convictions should be reversed and he should be granted a new trial.
FEDERAL PUBLIC DEFENDER
Assistant Federal Defender
Counsel for xxxxxxx Lamont xxxxxxx
625 Indiana Avenue, N.W. #550
Washington, D. C. 20004