Hagans et al. v. United States, 04-CF-253 (decided June 5, 2014)
The Players: Chief Judge Washington and Associate Judges Glickman and Reid. Opinion by Judge Glickman. Veronica Holt, Lisa Schertler, Matthew Krueger, and Matthew Hoffman for appellants. Trial Judge: Robert Richter.
The Facts: In about 1999, a feud escalated between two Petworth drug gangs, the Delafield crew and the Mahdi brothers, resulting in a number of shootings. In 2001, numerous members of both gangs were indicted. Harrell Hagans and Brion Arrington, two of the three leaders of the Delafield gang, and Warren Allen and Gary Leaks, two lower-ranking members, were charged with various counts of murder, assault with intent to kill while armed (“AWIKWA”) , and weapons offenses.
At trial, lightly redacted plea proffers from four Mahdi brothers were admitted into evidence over defense objections, and the judge told the jury that the proffers were only there to cast some light on the relationship between the two gangs, not as evidence of what anyone other than the Mahdis had actually done. The Mahdi brothers themselves asserted their Fifth Amendment privilege not to testify at the trial, so they were not available for cross-examination; the government later conceded that admitting the plea proffers under these circumstances violated the Sixth Amendment’s Confrontation Clause. The prosecution also made use of several extra-judicial statements by some of the defendants, which were admitted under the party opponent exception to the rule against hearsay. At one point, the prosecution introduced evidence of a shooting on Roxboro Place in which Arrington and another Delafield gang member killed two people; the case included no charges arising out of the incident, and the evidence was admitted solely to establish that Arrington owned two guns that were later used in the charged crimes. In order to avoid undue prejudice to Arrington, any mention of the two deaths was excluded.
One witness for the prosecution, Jason Smith, testified that he was taking certain medications to help him sleep. The defense wanted to call the chief psychiatrist at the DC Jail to testify that Smith was actually taking those medications for auditory hallucinations and other psychotic symptoms, which he had probably developed after being sexually assaulted at the jail. The court ruled that if the defense introduced that testimony, the prosecution would be allowed to counter with Smith’s grand jury testimony (given before his sexual assault in jail), which was consistent with his trial testimony. The defense opted not to call the psychiatrist, so the grand jury testimony was not introduced. Another prosecution witness, Charles Payne, was impeached with his grand jury testimony, and the prosecution was subsequently allowed to refer repeatedly to that testimony in its closing argument in order to argue that it was consistent with Payne’s trial testimony.
Issue 1: Did the unconstitutional admission into evidence of the Mahdi brothers’ plea proffers constitute reversible error?
Holding 1: The mountains of other evidence against the appellants dwarfed the Mahdi brothers’ proffers, which the government didn’t rely that heavily on anyway, so it was clear beyond a reasonable doubt that the error didn’t contribute to the verdict.
Issue 2: Could the out-of-court statements of some defendants be admitted under the party opponent hearsay exception in a conspiracy case where the jury was given a Pinkerton instruction on vicarious liability? And were they sufficiently redacted?
Holding 2: The defense counsel didn’t object to the admission of these statements specifically enough at trial, so a plain error standard applied, and there was no plain error. Some of the extra-judicial statements in question likely would have been admissible under another hearsay exemption (for example, as statements against penal interest or as statements by co-conspirators during and in furtherance of the conspiracy). Furthermore, because of the aforementioned mountains of evidence against the appellants, the extrajudicial statements hadn’t been essential to the outcome of the trial. One witness’s testimony was not sufficiently redacted to protect three of the defendants, but they weren’t entitled to a new trial because, again, there was so much other evidence that the error was harmless.
Issue 3: Did the trial court abuse its discretion by admitting evidence of the Roxboro Place shooting? Should it have severed Hagans’s trial from Arrington’s so that Hagans could freely cross-examine the witness on the resulting deaths?
Holding 3: No and no. Although it was prejudicial, the evidence tying the guns to Arrington had considerable probative value. The court properly kept the jury from hearing about the two resulting deaths and instructed it on the limited use it could make of the evidence. Hagans wanted to cross-examine the witness on the deaths in order to impeach him (the witness had participated in the shootings alongside Arrington), but Hagans had already amply impeached the witness, so he was not unduly prejudiced.
Issue 4: Did the trial court err in ruling that Smith’s grand jury testimony would be admissible to rehabilitate him if the defense impeached him with the psychiatrist’s testimony? If so, were the appellants’ Confrontation Clause rights violated because their ability to impeach Smith was restricted?
Holding 4: The trial court did not err, because courts have broad discretion to allow prior consistent statements for the purpose of rebutting suggestions that a witness’s trial testimony is a recent fabrication. The prior statement must have been made when the supposed reason for the fabrication did not exist, which was satisfied here because Smith’s hallucinations were more likely than not caused by the sexual assault in jail. The appellants’ Sixth Amendment confrontation rights were not infringed even if they were dissuaded from exercising them by the court’s ruling.
Issue 5: Did the prosecution improperly refer to Payne’s grand jury testimony, which had not been admitted into evidence, to bolster Payne’s credibility?
Holding 5: No. The prosecution’s assertions that Payne’s grand jury testimony was largely consistent with his trial testimony had a basis in the record, as the defense had impeached Payne on only minor points. Although prior consistent statements generally can’t be introduced to rehabilitate a witness, the prosecution’s use of the grand jury testimony fit within the “rule of completeness” and “recent fabrication” exceptions. Regardless, the appellants suffered no substantial prejudice, so it wouldn’t have been reversible error anyway.
Issue 6: Should Allen and Leaks have been granted separate trials, as they were accused only of involvement in a single incident but the jury heard lots of prejudicial testimony about other crimes that didn’t involve them?
Holding 6: No, the trial court was within its discretion to deny the motions for separate trials. Since this was a conspiracy trial, evidence of crimes that Allen and Leaks weren’t directly involved in was relevant and might have been admitted against them even if their trials had been severed from Hagan’s and Arrington’s. Even aside from that, there was no “spillover” prejudice because the government was careful to present its evidence incident by incident to avoid confusing the jury.
Issue 7: Was there sufficient evidence of intent to convict Allen and Leaks of first-degree murder and AWIKWA?
Holding 8: Yes. The two set out, along with Arrington and Hagans, to shoot up the Mahdi brothers’ corner of the neighborhood, and they “unleashed an indiscriminate attack that lasted for minutes.” The two women who were shot (one fatally) were innocent bystanders caught in the “wide zone of lethal danger” that appellants intentionally created, which was sufficient intent to support the convictions.
Issue 8: Even if none of the individual errors warrants reversals of the convictions, does the cumulative effect of all the errors put together?
Holding 8: No. It is unclear what standard applies when evaluating the cumulative effect of a “mixed bag of errors” (containing preserved constitutional error, preserved non-constitutional error, and unpreserved error), but even under the most pro-reversal standard the government’s case was so strong that there is no reasonable possibility that the errors affected the trial outcome. Sam Feldman, pinch hitting.