United States v. Marlon Haight , 892 F.3d 1271 ( 2018 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 8, 2018 Decided June 22, 2018
No. 16-3123
UNITED STATES OF AMERICA,
APPELLEE
v.
MARLON HAIGHT,
APPELLANT
Consolidated with 17-3002
Appeals from the United States District Court
for the District of Columbia
(No. 1:15-cr-00088-1)
Jenifer Wicks argued the causes and filed the briefs for
appellant/cross-appellee.
Luke M. Jones and Lauren R. Bates, Assistant U.S.
Attorneys, argued the causes for appellee/cross-appellant.
With them on the briefs were Jessie K. Liu, U.S. Attorney, and
Elizabeth Trosman, Nicholas P. Coleman, and Christopher
Macchiaroli, Assistant U.S. Attorneys.
Before: GARLAND, Chief Judge, and KAVANAUGH and
SRINIVASAN, Circuit Judges.
2
Opinion for the Court filed by Circuit Judge KAVANAUGH.
KAVANAUGH, Circuit Judge: A jury convicted Marlon
Haight of several drug- and gun-related offenses. The District
Court sentenced Haight to 12 years and 8 months in prison.
Haight appeals his conviction on three grounds. He
challenges the District Court’s refusal to postpone his trial. He
contests two of the District Court’s evidentiary rulings at trial.
And he raises an ineffective assistance of counsel claim. We
affirm Haight’s conviction except that, consistent with our
ordinary practice, we remand for the District Court to address
Haight’s ineffective assistance claim in the first instance.
The Government cross-appeals Haight’s sentence. The
Government argues that Haight was subject to a 15-year
mandatory-minimum sentence under the Armed Career
Criminal Act because of Haight’s three prior convictions for
violent felonies and serious drug offenses. We agree with the
Government. We therefore vacate Haight’s sentence and
remand for resentencing.
I
In 2014, the Metropolitan Police Department of
Washington, D.C., received a tip that a man known as Boo was
selling crack cocaine in the Lincoln Heights neighborhood of
Washington. The tip came from Blaine Proctor, a cocaine user
and long-time police informant. Proctor claimed to have
bought cocaine from Boo on several occasions.
Proctor gave the police Boo’s cell-phone number. Police
Officer Herbert LeBoo ran the cell-phone number through a
subscriber database and determined that the number belonged
to Marlon Haight. Officer LeBoo then ran the name Marlon
3
Haight through another database and matched the name to a
photograph. Officer LeBoo showed the photograph to Proctor,
who said, “That’s Boo.”
Under Officer LeBoo’s supervision, Proctor then made
three controlled purchases of crack cocaine from Boo. After
the third controlled purchase, police officers executed a search
warrant at the apartment where Boo had sold the cocaine to
Proctor. No one answered the door, so the officers used a
battering ram to enter the apartment. While most of the officers
were breaking down the door, Officer Clifford, who was
standing outside the apartment building, saw two men jump
from one of the building’s windows and run away before they
could be apprehended. Officer Clifford later testified that he
was “90 percent” sure that one of the jumpers was Marlon
Haight, whose photo Officer Clifford had studied earlier that
day.
Meanwhile, the other officers finished breaking down the
door and entered the apartment. There, they found Russell
Ferguson. Ferguson lived in the apartment. Ferguson denied
that Haight was selling cocaine from the apartment. But
Ferguson later cooperated with the police and changed his tune:
He testified that he had allowed Haight and four other men to
use his apartment to process and sell crack cocaine.
The police officers searched Ferguson’s apartment and
found cocaine, cocaine base, crack cocaine in small plastic
bags, a scale, baking soda, and hundreds of empty plastic bags.
They also found marijuana, a loaded handgun, ammunition,
cash, and a cell phone with a picture of Haight on its home
screen.
In the bedroom, the police saw that the screen to one of the
windows had been pushed out. They found another cell phone
4
sitting on the window sill. The police later determined that
Haight had purchased that cell phone.
About a month later, the police located and arrested
Haight. The police then applied for a search warrant to search
Haight’s own apartment. While they were waiting for the
warrant, the police staked out Haight’s apartment building.
They saw Haight’s girlfriend leave the building carrying a
backpack. They stopped her and eventually searched the
backpack. In the backpack, the officers found several pounds
of marijuana, Haight’s employment documents, and a sheaf of
handwritten papers. The handwritten papers turned out to be
rap lyrics and a skit script that included Haight’s name and
expressed Haight’s desire to deal drugs in Lincoln Heights.
Later that day, after securing the search warrant for Haight’s
apartment, the police searched the apartment. There, they
found another gun and more ammunition.
The Government charged Haight with numerous drug and
gun crimes. The jury found Haight guilty on six counts.
At sentencing, the Government argued that Haight was
subject to a 15-year mandatory-minimum sentence based on his
three prior convictions for violent felonies and serious drug
offenses. The District Court ruled that one of the three
convictions did not qualify as a violent felony. The District
Court therefore concluded that Haight was not subject to the
15-year mandatory-minimum sentence. The District Court
sentenced Haight to 12 years and 8 months in prison.
Haight appeals his conviction. The Government cross-
appeals Haight’s sentence.
5
II
In appealing his conviction, Haight first challenges the
District Court’s denial of his motion to postpone his trial.
Haight also contests the District Court’s decision to admit into
evidence: (i) Officer LeBoo’s testimony about Proctor’s out-
of-court statement identifying Haight; and (ii) the writings
found in the backpack carried by Haight’s girlfriend. Finally,
Haight claims that his trial counsel was ineffective.
A
Haight’s trial was originally scheduled to start in
September 2015. Between September 2015 and February
2016, Haight moved three times to postpone the trial. The
District Court granted each of those motions, eventually setting
a June 2016 trial date. After granting the third motion and
setting the June 2016 trial date, the District Court warned that
Haight would need a compelling reason to postpone the trial
any further.
In February 2016, the District Court held an evidentiary
hearing on Haight’s motion to suppress the writings found in
the backpack. In early May, the District Court said that it was
likely to deny Haight’s motion to suppress the writings. In
early June, two weeks before trial, the Government moved in
limine to introduce the writings into evidence. Haight
responded with a fourth request to postpone the trial. Haight
argued that he needed more time to decide how to address the
writings and to consult with a handwriting expert.
The District Court denied Haight’s motion to further
postpone the trial. On appeal, Haight contends that the District
Court abused its discretion in denying his motion. We
disagree.
6
Recognizing that “judges necessarily require a great deal
of latitude in scheduling trials,” we review a district court’s
denial of a motion to postpone a trial under the deferential
abuse-of-discretion standard. United States v. Gantt, 140 F.3d
249, 256 (D.C. Cir. 1998). We expect district courts to weigh
various commonsense factors, including the reasons for the
requested postponement; the length of the requested
postponement; whether any postponements have already been
granted; the effect of further delay on the parties, witnesses,
attorneys, and court; and whether denying a postponement will
result in “material or substantial” prejudice to the defendant’s
case. Id.
The District Court acted well within its discretion here.
The court considered the relevant factors and explained why a
further postponement was not warranted: Haight had already
requested and received three postponements, which had
delayed his trial by nine months; Haight’s experienced counsel
had a month to consider how to address the writings; and the
writings did not present any difficult or novel issues that
justified further delay. The District Court’s refusal to grant yet
another postponement was entirely reasonable.
B
We review the District Court’s two challenged evidentiary
rulings for abuse of discretion. See United States v. Borda, 848
F.3d 1044, 1055 (D.C. Cir. 2017).
First, Haight argues that the District Court abused its
discretion by admitting hearsay testimony. At trial, Officer
LeBoo testified about Proctor’s initial out-of-court
photographic identification of Haight. Haight objected that
Officer LeBoo’s testimony on that point was inadmissible
7
hearsay. The District Court disagreed with Haight and
admitted the testimony.
Federal Rule of Evidence 802 renders hearsay generally
inadmissible. But under Rule 801, a witness’s testimony
recounting a declarant’s out-of-court statement is not hearsay
if (i) the declarant’s statement “identifies a person as someone
the declarant perceived earlier,” and (ii) the declarant “testifies
and is subject to cross-examination about” the statement. Fed.
R. Evid. 801(d)(1)(C). The declarant of the out-of-court
statement is ordinarily “regarded as ‘subject to cross-
examination’ when he is placed on the stand, under oath, and
responds willingly to questions.” United States v. Owens, 484
U.S. 554, 561 (1988).
Officer LeBoo’s testimony recounting Proctor’s out-of-
court statement identifying Haight was not hearsay because the
testimony fell squarely within Rule 801: (i) Proctor’s out-of-
court statement – “That’s Boo” – identified Haight as someone
whom Proctor had perceived earlier, and (ii) Proctor testified
at Haight’s trial and was subject to cross-examination about
that statement.
It is true that Haight’s counsel did not actually cross-
examine Proctor about the earlier identification of Boo.
Defense counsel presumably chose that tack because, on direct
examination by the Government, Proctor did not remember
having identified Boo to Officer LeBoo. Proctor’s memory
failure was therefore potentially helpful to Haight’s defense
and not something for defense counsel to mess with on cross-
examination. But Rule 801 was still satisfied. As the Seventh
Circuit has stated, a “meaningful opportunity to cross-examine
a declarant regarding his prior identification is enough to
satisfy the requirements of Rule 801, even if,” for strategic or
other reasons, “the defendant chooses not to use the
8
opportunity.” United States v. Foster, 652 F.3d 776, 789 (7th
Cir. 2011). We agree. Officer LeBoo’s testimony about
Proctor’s earlier out-of-court identification of Haight was not
hearsay.
Even if the District Court abused its discretion in admitting
Officer LeBoo’s testimony on that issue, the error was
harmless. Officer LeBoo’s testimony helped show that Haight
and Boo were the same person. But the Government
introduced abundant other evidence to establish that fact.
Second, Haight maintains that the District Court abused its
discretion by admitting the handwritten lyrics and handwritten
script that the police found in the backpack carried by Haight’s
girlfriend. Haight argues that: (i) the writings were not
properly authenticated under Rule 901; (ii) the writings
constituted prior-acts evidence not admissible under Rule
404(b); and (iii) the probative value of the writings was
substantially outweighed by the danger of unfair prejudice
under Rule 403. We disagree with Haight.
Under Rule 901, the Government had to “produce
evidence sufficient to support a finding that” the writings were
what the Government claimed they were: lyrics and a script
written by Haight. That authentication evidence could include
the “appearance, contents, substance, internal patterns, or other
distinctive characteristics” of the writings, “taken together with
all the circumstances.” Fed. R. Evid. 901(a), (b)(4).
The District Court did not abuse its discretion in
concluding that the Government satisfied Rule 901. The
Government established that Haight’s name appeared on the
writings and that the writings were in a backpack that also
contained Haight’s employment papers. Furthermore,
Haight’s girlfriend was carrying the backpack, and she had just
9
brought it out of the apartment that she and Haight shared. See,
e.g., United States v. Mejia, 597 F.3d 1329, 1335-37 (D.C. Cir.
2010); United States v. Thorne, 997 F.2d 1504, 1508 (D.C. Cir.
1993); United States v. Harvey, 117 F.3d 1044, 1049 (7th Cir.
1997).
The District Court also did not abuse its discretion in
admitting the writings under Rule 404(b). Assuming without
deciding that the writings constituted evidence of another
“crime, wrong, or other act” within the meaning of Rule
404(b), the District Court admitted the writings for permissible
purposes, including identity, knowledge, and intent. See
United States v. Bowie, 232 F.3d 923, 930 (D.C. Cir. 2000). As
the District Court explained, the writings tended to show that
Haight: (i) owned the backpack and the marijuana found in the
backpack; (ii) knew about guns and drug dealing; (iii)
possessed the guns and drugs found in Ferguson’s apartment;
and (iv) intended to distribute drugs in Lincoln Heights.
Finally, as to Haight’s Rule 403 argument, the District
Court did not abuse its discretion in concluding that the
probative value of the writings outweighed any danger of
unfair prejudice.
In short, we reject Haight’s evidentiary challenges.
C
Haight next contends that his counsel’s failure to obtain a
handwriting expert deprived him of his constitutional right to
effective assistance of counsel. Haight asserts that a
handwriting expert could have testified that the writings found
in the backpack were not in Haight’s handwriting.
10
Unlike most federal courts of appeals, we allow defendants
to raise ineffective assistance claims on direct appeal. But
because ineffective assistance claims typically require factual
development, we ordinarily remand those claims to the district
court “unless the trial record alone conclusively shows that the
defendant either is or is not entitled to relief.” United States v.
Rashad, 331 F.3d 908, 909-10 (D.C. Cir. 2003); see also
Massaro v. United States, 538 U.S. 500, 505 (2003) (district
court is “the forum best suited to developing the facts necessary
to determining the adequacy of representation” at trial). Like
most ineffective assistance claims raised on direct appeal,
Haight’s claim in this case requires further factual development
to determine, for example, why Haight’s trial counsel did not
obtain a handwriting expert. We therefore remand Haight’s
ineffective assistance claim so that the District Court may
consider that issue in the first instance.
III
The District Court sentenced Haight to 12 years and 8
months in prison. The Government cross-appeals the sentence,
arguing that Haight was subject to a 15-year mandatory-
minimum sentence under the Armed Career Criminal Act,
known as ACCA. We agree with the Government and remand
for resentencing.
Haight was convicted of violating 18 U.S.C. § 922(g)(1),
the federal felon-in-possession statute. ACCA imposes a 15-
year mandatory-minimum sentence on defendants who violate
Section 922(g) and who have three prior convictions for “a
violent felony or a serious drug offense, or both.” 18 U.S.C.
§ 924(e)(1).
When sentenced, Haight had prior convictions for:
(1) distribution of cocaine in violation of D.C. law; (2) first-
11
degree assault under Maryland law; and (3) assault with a
dangerous weapon under D.C. law.
In his sentencing submissions to the District Court, Haight
accepted that his prior D.C. conviction for distribution of
cocaine qualified as a serious drug offense under ACCA.
Haight also accepted that his Maryland first-degree assault
conviction qualified as a violent felony under ACCA. Haight
argued, however, that his D.C. conviction for assault with a
dangerous weapon did not qualify as a violent felony under
ACCA. Haight therefore maintained that he was not subject to
ACCA’s 15-year mandatory-minimum sentence because he
did not have three prior convictions for violent felonies or
serious drug offenses. The District Court agreed with Haight.
On appeal, the Government contends that the District
Court erred in concluding that Haight’s D.C. assault with a
dangerous weapon conviction was not a violent felony under
ACCA. We review the District Court’s interpretation of
ACCA de novo. See United States v. Mathis, 963 F.2d 399,
404 (D.C. Cir. 1992).
In response, Haight not only argues that his D.C. assault
with a dangerous weapon conviction is not a violent felony, but
also contends – for the first time – that his Maryland first-
degree assault conviction is not a violent felony. Because
Haight did not raise that latter argument in the District Court,
we review that claim for plain error. See United States v.
Sheffield, 832 F.3d 296, 311 (D.C. Cir. 2016).
A
We first address whether Haight’s D.C. conviction for
assault with a dangerous weapon qualifies as a conviction for a
violent felony under ACCA.
12
As relevant here, ACCA defines “violent felony” to
include, among other things, “any crime punishable by
imprisonment for a term exceeding one year” that “has as an
element the use, attempted use, or threatened use of physical
force against the person of another.” 18 U.S.C.
§ 924(e)(2)(B)(i). The Supreme Court has stated that “physical
force” in that provision means “violent force – that is, force
capable of causing physical pain or injury to another person.”
Johnson v. United States, 559 U.S. 133, 140 (2010).
In determining whether a given conviction qualifies as a
violent felony under ACCA, we employ the so-called
categorical approach, examining only the elements of the
crime, not the particular facts underlying the defendant’s prior
conviction. See Taylor v. United States, 495 U.S. 575, 600
(1990). In other words, we assess the crime categorically, “in
terms of how the law defines the offense and not in terms of
how an individual offender might have committed it on a
particular occasion.” Begay v. United States, 553 U.S. 137, 141
(2008). If the law defines the crime in such a way that it can
be committed using either violent or non-violent force, then the
crime is not a violent felony under ACCA, even if the
defendant actually used violent force in committing the crime.
See United States v. Redrick, 841 F.3d 478, 482 (D.C. Cir.
2016).
The elements of D.C. assault with a dangerous weapon are:
“(1) an attempt, with force or violence, to injure another, or a
menacing threat, which may or may not be accompanied by a
specific intent to injure; (2) the apparent present ability to
injure the victim; (3) a general intent to commit the acts which
constitute the assault; and (4) the use of a dangerous weapon in
committing the assault.” Spencer v. United States, 991 A.2d
1185, 1192 (D.C. 2010). A “dangerous weapon” is an object
that is “likely to produce death or great bodily injury by the use
13
made of it.” Powell v. United States, 485 A.2d 596, 601 (D.C.
1984) (emphasis removed).
The elements of the offense indicate that the D.C. crime of
assault with a dangerous weapon qualifies as a violent felony
under ACCA. See United States v. Brown, No. 15-3056, 2018
WL 2993179, at *12-13 (D.C. Cir. June 15, 2018) (D.C. assault
with a dangerous weapon is crime of violence under
Sentencing Guidelines); In re Sealed Case, 548 F.3d 1085,
1089 (D.C. Cir. 2008) (equivalent ACCA and Guidelines
provisions are interpreted the same way).
Haight raises two separate arguments against that
conclusion.
First, Haight claims that the D.C. offense of assault with a
dangerous weapon can be committed with so-called indirect
force, such as using a hazardous chemical to burn someone,
rather than with more direct force, such as using a gun or a
knife to maim someone. See, e.g., Sloan v. United States, 527
A.2d 1277 (D.C. 1987) (lye); Bishop v. United States, 349 F.2d
220 (D.C. Cir. 1965) (sulphuric acid). And he claims that the
use of indirect physical force does not qualify as the use of
physical force under this statute. We do not perceive any such
distinction between direct and indirect force in the language of
the statute or in the relevant precedents. Moreover, in United
States v. Castleman, 134 S. Ct. 1405 (2014), the Supreme Court
addressed a similar statute referencing prior crimes committed
with “physical force,” and the Court refused to distinguish
indirect physical force from direct physical force. In the
Supreme Court’s analysis, it did not matter what tool or method
the defendant may have used to harm the victim. See id. at
1414-15. Of course, ACCA requires that the physical force be
violent force – that is, “force capable of causing physical pain
or injury to another person.” Johnson, 559 U.S. at 140. But by
14
analogy from Castleman, so-called indirect violent force is still
violent force.
In so concluding, we agree with ten other federal courts of
appeals that have addressed the question either in the ACCA
context or in equivalent contexts. See United States v. Ellison,
866 F.3d 32, 37-38 (1st Cir. 2017) (Guidelines); United States
v. Hill, 832 F.3d 135, 143-44 (2d Cir. 2016) (18 U.S.C.
§ 924(c)(3)); United States v. Chapman, 866 F.3d 129, 132-33
(3d Cir. 2017) (Guidelines); United States v. Reid, 861 F.3d
523, 528-29 (4th Cir. 2017) (ACCA); United States v.
Verwiebe, 874 F.3d 258, 261 (6th Cir. 2017) (Guidelines);
United States v. Jennings, 860 F.3d 450, 458-60 (7th Cir. 2017)
(ACCA and Guidelines); United States v. Rice, 813 F.3d 704,
706 (8th Cir. 2016) (Guidelines); Arellano Hernandez v.
Lynch, 831 F.3d 1127, 1131 (9th Cir. 2016) (18 U.S.C. § 16);
United States v. Ontiveros, 875 F.3d 533, 536-38 (10th Cir.
2017) (Guidelines); United States v. Deshazior, 882 F.3d 1352,
1357-58 (11th Cir. 2018) (ACCA). But see United States v.
Rico-Mejia, 859 F.3d 318, 322-23 (5th Cir. 2017).
Second, Haight contends that D.C. assault with a
dangerous weapon can be committed recklessly, and therefore
does not categorically require the use of violent force “against
the person of another” within the meaning of ACCA.
Haight’s recklessness argument contravenes the Supreme
Court’s recent decision in Voisine v. United States, 136 S. Ct.
2272 (2016). There, in interpreting Section 922(g)’s provision
for misdemeanor crimes of domestic violence, the Court held
that reckless domestic assault involves the use of physical
force. Id. at 2278-80; see 18 U.S.C. §§ 921(a)(33)(A)(ii),
922(g)(9). Focusing on the word “use,” the Court reasoned that
the word is “indifferent as to whether the actor has the mental
state of intention, knowledge, or recklessness with respect to
15
the harmful consequences of his volitional conduct.” Voisine,
136 S. Ct. at 2279.
The statutory provision at issue in Voisine contains
language nearly identical to ACCA’s violent felony provision:
Both provisions penalize defendants convicted of crimes that
have “as an element” the “use” of “physical force.” 18 U.S.C.
§§ 921(a)(33)(A)(ii), 924(e)(2)(B)(i). So Voisine’s reasoning
applies to ACCA’s violent felony provision. As long as a
defendant’s use of force is not accidental or involuntary, it is
“naturally described as an active employment of force,”
regardless of whether it is reckless, knowing, or intentional.
Voisine, 136 S. Ct. at 2279.
It is true that ACCA requires a defendant to use violent
force “against the person of another” – a phrase that does not
appear in the statutory provision that the Supreme Court
considered in Voisine. But the provision at issue in Voisine still
required the defendant to use force against another person –
namely, the “victim.” 18 U.S.C. § 921(a)(33)(A)(ii). In the
words of the Supreme Court in Voisine, the phrase
“misdemeanor crime of domestic violence” is “defined to
include any misdemeanor committed against a domestic
relation that necessarily involves the ‘use . . . of physical
force.’” Voisine, 136 S. Ct. at 2276 (quoting 18 U.S.C.
§ 921(a)(33)(A)(ii)).
In light of Voisine, we conclude that the use of violent
force includes the reckless use of such force. In so concluding,
we agree with four other courts of appeals that have addressed
the issue either in the ACCA context or in the equivalent
Guidelines “crime of violence” context. See United States v.
Mendez-Henriquez, 847 F.3d 214, 220-22 (5th Cir. 2017)
(Guidelines); United States v. Verwiebe, 874 F.3d 258, 262 (6th
Cir. 2017) (Guidelines); United States v. Fogg, 836 F.3d 951,
16
956 (8th Cir. 2016) (ACCA); United States v. Pam, 867 F.3d
1191, 1207-08 (10th Cir. 2017) (ACCA). We recognize that
the First Circuit has reached a contrary conclusion, but we
respectfully disagree with that court’s decision. See United
States v. Windley, 864 F.3d 36 (1st Cir. 2017).
In sum, we conclude that Haight’s D.C. conviction for
assault with a dangerous weapon counts as a violent felony
under ACCA.
B
We conclude that the District Court did not err, much less
plainly err, in classifying Haight’s Maryland first-degree
assault conviction as a violent felony under ACCA.
Maryland first-degree assault is defined as follows: “(1) A
person may not intentionally cause or attempt to cause serious
physical injury to another. (2) A person may not commit an
assault with a firearm.” Md. Code, Crim. Law § 3-202(a). To
convict a defendant of first-degree assault, the government
must prove that the defendant committed a second-degree
assault and either (1) “used a firearm to commit assault” or
(2) “intended to cause serious physical injury in the
commission of the assault.” Md. Crim. Pattern Jury Instr.
4:01.1.
As with D.C. assault with a dangerous weapon, the
additional elements that convert Maryland second-degree
assault into first-degree assault – the use of a firearm or the
intention to cause serious physical injury – require the
defendant to use, attempt to use, or threaten to use violent force
against another person. The District Court did not err – much
less plainly err – in reaching that commonsense conclusion,
which is the same conclusion reached by the only federal court
17
of appeals to have considered the question. See United States
v. Redd, 372 F. App’x 413, 415 (4th Cir. 2010) (“Because the
elements of first-degree assault under Maryland law
encompass the use or attempted use of physical force,” the
defendant’s two convictions for first-degree assault
“categorically qualify as ACCA predicates.”).
In sum, Haight had three ACCA-predicate convictions. As
a result, Haight was subject to a 15-year mandatory-minimum
sentence under ACCA. We therefore remand for resentencing.
***
As to Haight’s conviction, we affirm the judgment of the
District Court except that we remand for the District Court to
address Haight’s ineffective assistance claim in the first
instance. As to Haight’s sentence, we vacate the judgment of
the District Court and remand for resentencing.
So ordered.