Francis v. United States ( 2021 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 18-CF-88
GEORGE FRANCIS, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CF1-6915-14)
(Hon. Judith Bartnoff, Trial Judge)
(Argued February 20, 2020 Decided August 12, 2021)
Peter H. Meyers, with whom Joseph Virgilio was on the brief, for appellant.
Kathleen W. Gibbons, Assistant United States Attorney, with whom Jessie K.
Liu, United States Attorney at the time the brief was filed, and Elizabeth Trosman,
John P. Mannarino, Kenya Davis, and Marisa West, Assistant United States
Attorneys, were on the brief, for appellee.
Before GLICKMAN and BECKWITH, Associate Judges, and FERREN, Senior
Judge.
2
GLICKMAN, Associate Judge: Appellant George Francis challenges his
convictions for contempt, 1 obstruction of justice, 2 and conspiracy to obstruct
justice. 3 For the following reasons, we affirm.
I.
On the evening of February 19, 2014, seventeen-year-old A.M. called police
and reported that an unknown man had assaulted and robbed her shortly after 6 p.m.
in an alley off Georgia Avenue, N.W., while another man stood watch. Appellant
and his friend Robert Turner were identified as suspects from video surveillance
footage showing them near the alley at about 6:15 p.m. 4 In subsequent testimony
before a grand jury, Mr. Turner admitted that he and appellant were at the alley and
that appellant had attacked A.M. there. He also admitted to having participated in
manufacturing a false alibi for appellant.
1
D.C. Code § 11-944(a) (2012 Repl.).
2
D.C. Code § 22-722(a)(6) (2012 Repl. & 2021 Supp.).
3
D.C. Code §§ 22-1805(a), -722(a)(6) (2012 Repl. & 2021 Supp.).
4
According to the detective who testified about the video footage at trial, it
showed appellant and Turner getting off a bus at 6:03 p.m. and approaching the alley
at about 6:13 p.m.
3
The grand jury eventually returned a six-count indictment against appellant.
The first three counts charged him with crimes of violence against A.M., namely
assault with intent to commit first degree sexual abuse, kidnapping, and robbery.
The other three counts charged appellant with offenses committed after the assault
on A.M., namely criminal contempt, obstruction of justice, and conspiracy to
obstruct justice. At trial, the jury acquitted appellant of the robbery and hung on the
assault and kidnapping charges. It found appellant guilty of contempt and the
obstruction charges.
The charges of conviction allegedly arose from an overture to A.M. on
appellant’s behalf after he was arrested, in violation of a court “stay away” order,
and the creation of a false alibi defense for appellant.
A. Contact with A.M.
On April 19, 2014, at appellant’s presentment hearing, the trial court granted
the government’s request for a stay away order. In bold and all-capital letters, the
order required appellant “to have no contact” with A.M. “by any means whatsoever”
and “not [to] communicate or even attempt to communicate” with A.M. “either
directly or through any other person (except through your lawyer).” The order
warned that any violation could result in appellant’s prosecution for contempt of
court, and other consequences. At some point, appellant signed the order. We say
4
“at some point,” because the order was not dated (a point of contention in this
appeal). 5
On April 30, as A.M. testified at trial, a classmate of hers, Brice-Aime Tengen,
approached her at school with a message from appellant. According to A.M., Mr.
Tengen said appellant “just wants me to tell you that he’s not guilty and he wants
[you] to talk to his lawyer.” A.M. refused to do so. Mr. Tengen testified that it was
A.M., not he, who initiated the conversation, and he denied that appellant or anyone
else had asked him to discuss appellant’s case with her. But the government
introduced an April 30 text-message conversation between appellant and Mr.
Tengen that contradicted Mr. Tengen. In the conversation, appellant asked Mr.
Tengen, “Aye [sic] you talked to that girl yet yung[?]” [Sic] Mr. Tengen responded,
“What you want me to tell her?” Appellant answered, “Yea explain to her that they
blaming the wrong person and ask if she can talk to my lawyer.” Appellant then
asked for “her first and last name” so he could be sure Mr. Tengen was talking to
5
On April 19, appellant was detained pursuant to D.C. Code § 23-
1322((b)(1)(A) (2012 Repl. & 2021 Supp.)). He was brought back to court and
released on April 23. At that time, a magistrate judge reviewed the stay away order
with appellant and verbally ordered him “not to have any contact or communication
with” A.M. According to the transcript of the proceeding, the magistrate judge asked
appellant if he understood these conditions, and appellant said, “Yes, ma’am.” The
jury was never informed of this information, however, even though Count 4 of the
indictment alludes to it in charging appellant with contempt. See footnote 6 infra.
5
“the right person.” Mr. Tengen replied with A.M.’s full name and reported to
appellant that he was “with her right now.” Eventually, after Mr. Tengen indicated
that A.M. was unreceptive, appellant told Mr. Tengen, “Nevermind [sic] don’t ask
her nothing cuz this not going anywhere.” Appellant also said, “I’m not even
supposed to be asking you to talk to her cuz they might lock me up for it.”
At trial, appellant objected to the admission in evidence of a certified copy of
the stay away order, on the ground that it was not dated. In overruling that objection,
the judge acknowledged that the absence of a date on the order was “odd,” but took
judicial notice that the Superior Court case docket showed that the stay order was
entered on April 19, 2014.
B. The Alibi
Appellant maintained in his testimony at trial that at the time of A.M.’s
assault, around 6:15 p.m. on February 19, he was watching Mr. Turner coach a
recreational basketball team at Riggs LaSalle Recreation Center (“Riggs”). The
evidence appellant offered in support of this alibi defense included a series of text
messages to and from appellant on February 19, and an Instagram photo purportedly
taken of him on that evening.
At 4:26 p.m. on February 19, Mr. Turner texted appellant that he would be
coaching games at Riggs at 6:00 p.m. and 7:40 p.m. that evening. Appellant
6
responded at 4:27 p.m. that he would “prolly come meet” him. At 5:38 p.m.,
appellant texted another friend, “I’m bouta head up [to] Riggs to watch Rob [i.e.,
Mr. Turner] coach.” The message log also shows that Mr. Turner called appellant
at 5:44 p.m.
The Instagram photograph was a picture of someone’s feet in basketball shoes
on a basketball court. Appellant maintained the photo was of him and was taken on
February 19 when he was at the Riggs Road basketball court that night.
On June 17, 2014, Mr. Turner testified before the grand jury. He previously
had told the prosecutor that he, appellant, Mr. Tengen, and their friend Robert Price
were playing basketball at “Riggs Park” when A.M. was assaulted. He also had said
they took a photo of “some shoes, Nikes,” that night and posted it on Instagram.
Before the grand jury, however, Mr. Turner admitted that was all a “bogus story.”
He testified that Mr. Price came up with the alibi for appellant, and that he and
appellant agreed to go along with it. He also admitted that he told the prosecutor
“the wrong date” for the photograph; it was not taken the night of the assault.
In his testimony at trial, Mr. Turner disavowed his admissions in the grand
jury. He claimed the actual “bogus story” was that appellant assaulted A.M., and
“the truth” was that he and appellant were playing basketball that night at the time
of the assault. The government impeached Mr. Turner with his grand jury testimony.
7
Despite his disavowal of it, Mr. Turner acknowledged that he, Robert Price, and
appellant “had an agreement that you were supposed to testify in grand jury that you
were at the LaSalle Recreation Center on Riggs Road [sic].” He said that when Mr.
Price proposed the basketball story, appellant’s “reaction was to agree to go along
with it.” The government also presented testimony from a detective that the
Instagram photo actually was taken on February 5 (two weeks before the assault on
A.M.).
C. The Contempt and Obstruction of Justice Counts
Count 4 of the indictment charged appellant with criminal contempt for
violating the stay away order “on or about April 30, 2014” by “asking another
individual to make contact with A.M.” 6
6
Count 4 reads as follows:
On or about April 23, 2014, within the District of
Columbia, George Francis was released in Case Number
2014 CF 16915 and ordered by a D.C. Superior Court
Judge or Magistrate Judge to stay away from A.M. (a 17-
year-old female). On or about April 30, 2014 within the
District of Columbia, George Francis knowingly,
willfully, and intentionally violated that order by asking
another individual to make contact with A.M. (Contempt,
in violation of 11 D.C. Code, Section 944(a) (2001 ed.)).
8
For agreeing with Mr. Turner and Mr. Price to present a false alibi, Count 6
of the indictment charged appellant with conspiring with two unindicted co-
conspirators “[b]etween on or about March 24, 2014 and on or about May 15, 2014,”
to obstruct justice. 7
The fifth count of the indictment charged appellant with obstruction of justice.
The count repeats the language of the obstruction statute but does not include a
factual allegation of the manner in which appellant allegedly committed the offense.
Count 5 states only that:
On or about April 30, 2014, within the District of
Columbia, George Francis did corruptly and by threat of
force obstruct, impede or endeavor to obstruct and impede
the due administration of justice in any official
proceeding. (Obstructing Justice (Due Administration of
Justice) in violation of 22 D.C. Code, Section 722(a)(6)
(2001 ed.)).
7
Count 6 reads as follows:
Between on or about March 24, 2014 and on or about May
15, 2014, within the District of Columbia, George Francis,
together with two unindicted co-conspirators, did
knowingly and willfully combine, conspire, confederate
and agree together to obstruct justice, in violation of Title
22, District of Columbia Code, Sections 1805a, 722(a)(6)).
9
In the proceedings below, the prosecutor appeared to evince some confusion or
uncertainty as to the factual underpinnings of this charge. At a pretrial conference,
the prosecutor noted that counts 4 and 5 alleged the same offense date of (on or
about) April 30, 2014, while count 6 alleged a conspiracy between March 24 through
May 14, 2014, and that those were the dates to be used in listing the counts for the
jury on the verdict form. 8 And during trial, in a discussion outside the jury’s hearing
concerning the admissibility of the text messages between appellant and Mr. Tengen,
the prosecutor told the judge that “[t]hese text messages go to the contempt charge
and also the obstruction of justice charge.” 9
The following day, however, on November 14, 2017, the prosecutor told the
jury in closing argument that appellant “committed obstruction of justice when he
and his friends got together and agreed to concoct a story about where they were on
February 19, 2014 using that Instagram photograph that’s in evidence of those
8
There was no discussion then as to the conduct that constituted the gravamen
of Count 5.
9
The judge, evidently, thought otherwise. Later that same day, in denying
appellant’s motion for judgment of acquittal, the judge said, “[J]ust to be clear by
the way, about the obstructing justice and conspiracy [charges], that Mr. Turner
testified that there was a — that there was a discussion at LaSalle Recreation Center
about what the story is.” Read in context, we understand the judge to have been
expressing the understanding that Counts 5 and 6 both were based on the alleged
agreement to fabricate an alibi for appellant. Neither counsel took issue with that
understanding.
10
shoes.” The prosecutor described the Instagram photo as “the picture that sets up
the conspiracy” and “the picture that sets up the obstruction.” The prosecutor did
not argue that the messages to Mr. Tengen or the overture to A.M. on April 30
constituted the charged obstruction of justice. Nor did the prosecutor argue that they
were overt acts in furtherance of the conspiracy to obstruct justice. In response,
appellant’s counsel did not dispute that the obstruction of justice charge was based
on the allegedly false alibi and the Instagram photo, and he framed his argument for
an acquittal on that understanding. 10 When he addressed Mr. Tengen’s contact with
A.M. on appellant’s behalf, he did not even mention the obstruction charge.
After retiring to deliberate, the jury sent back a note seeking clarification of
the obstruction charge. The note said, “[W]e’re trying to decide charge five but we
don’t have any evidence,” and asked, “[w]ould the [Instagram] photo be considered
evidence for charge five?” With the approval of both the prosecutor and appellant’s
counsel, the judge explained to the jury that she could not tell them “what evidence
there is for each particular charge,” but only “that in reviewing the charges you
10
Appellant testified at trial that his alibi defense was the truth and that the
Instagram photograph was taken of him on the evening of February 19. In closing,
appellant’s counsel argued that appellant “testified today that that photograph was
from February 19, 2014. He believes it. You have no idea how that was presented
to him. There’s no reason to believe that he was involved in any conspiracy or that
he tried to obstruct justice.”
11
should look at all of the evidence in the case.” Neither counsel argued that the
Instagram photo was irrelevant to Count 5.
II.
Appellant raises a number of challenges to his convictions. We discuss them
with respect to each count individually.
A. Contempt
Contempt requires “both a contemptuous act and a wrongful state of mind.” 11
“Thus, to prove criminal contempt that rests on violation of a court order, ‘the
government must present evidence proving beyond a reasonable doubt that
defendant engaged in: (1) willful disobedience (2) of a protective court order.’” 12
Appellant argues that the evidence at trial was insufficient to prove he willfully
disobeyed the stay away order, and that the trial judge erred in admitting that order
in evidence.
11
Williams v. United States, 51 A.3d 1273, 1278 (D.C. 2012) (quoting Davis
v. United States, 834 A.2d 861, 866 (D.C. 2003)).
12
Id. (quoting Ba v. United States, 809 A.2d 1178, 1183 (D.C. 2002)).
12
1. Willful Disobedience
In assessing appellant’s first contention, we review the evidence in the light
most favorable to the verdict and will reverse only “where there is no evidence upon
which a reasonable mind could fairly conclude guilt beyond a reasonable doubt.” 13
A defendant willfully disobeys a court order when he understands the order and
intentionally commits an act that violates it. 14 We find the evidence sufficient to
prove this.
The stay away order unambiguously and emphatically directed appellant “to
have no contact” with A.M. “by any means whatsoever” and “not [to] communicate
or even attempt to communicate” with her “either directly or through any other
person.” That appellant signed the order is sufficient evidence to prove he received
and understood it. 15 Appellant confirmed his understanding of the stay away order
13
Morales v. United States, 248 A.3d 161, 185 (D.C. 2021) (quoting Stroman
v. United States, 878 A.2d 1241, 1244 (D.C. 2005), and Harris v. United States, 668
A.2d 839, 841 (D.C. 1995)).
14
Williams, 51 A.3d at 1280.
15
Cf. In re Dixon, 853 A.2d 708, 711–12 (D.C. 2004) (determining that it
was “essentially frivolous” for appellant to argue that he “did not understand the
implications of the CPO when he was personally served with a copy of it” and where
“there was no indication that appellant had any difficulty in understanding what it
said”).
13
when he texted Mr. Tengen that “I’m not even supposed to be asking you to talk to
her cuz they might lock me up for it.”
Appellant’s text messages also evidenced his disobedience of the stay away
order. In them he asked whether Mr. Tengen had talked to A.M. yet, gave Mr.
Tengen a message to convey to her (“explain to her that they [are] blaming the wrong
person and ask if she can talk to my lawyer”), and confirmed that Mr. Tengen was
relaying it to her.
Appellant argues he did not communicate willfully with A.M., but the
argument’s footing is unclear. He seems to rely in part on Mr. Tengen’s testimony
that A.M. initiated the contact with him. A.M. testified to the contrary, but even if
she did approach Mr. Tengen, that fact is irrelevant. Appellant was still forbidden
to use Mr. Tengen as an intermediary to communicate with her. 16 Appellant also
relies on the fact that he texted Mr. Tengen, “[n]evermind, don’t ask her nothing.”
However, he sent that text only after Mr. Tengen had relayed appellant’s message to
A.M. At that point, appellant could not unring the bell.
Indeed, even if A.M. had initiated contact directly with appellant, he would
16
have been obligated to terminate the contact without otherwise speaking with her.
See Holmon v. District of Columbia, 202 A.3d 512, 521 (D.C. 2019).
14
We hold that reasonable jurors had sufficient evidence to find that appellant
willfully disobeyed the stay away order.
2. Admission of the Stay Away Order in Evidence
Appellant next takes aim at the stay away order itself. He contends it was
error to admit an undated order in evidence, and error to take judicial notice of the
date of the order based on a docket entry that was uncertified. We review both
decisions for abuse of discretion, 17 and find none.
That the stay away order was undated is not, in itself, an absolute bar to its
admission in evidence. 18 The date the order was entered and communicated to
appellant determines, of course, whether the order was operative and appellant knew
of it at the relevant time (i.e., April 30, when he disobeyed it). But there is no reason
to think — and appellant provides us none — that the proponent of the order cannot
17
Jones v. United States, 17 A.3d 628, 631 (D.C. 2011).
18
The two cases appellant cites in support of such a bar are inapposite; in
each, this court upheld admission of an order that did happen to be dated, but nothing
in either case turned on that fact. See Jackson v. United States, 924 A.2d 1016,
1019–22 (D.C. 2007) (holding that admission of certified docket entries and a
“notice to return” did not violate the appellant’s rights under the Confrontation
Clause); (Loretta) Smith v. United States, 677 A.2d 1022, 1025 (D.C. 1996)
(holding, inter alia, that the appellant had notice of facts constituting a contempt
charge).
15
prove its date with extrinsic evidence. After all, “a piece of evidence, unreliable in
isolation, may become quite probative when corroborated by other evidence.” 19
The “corroborating evidence” in this case was the docket entry stating the
order was entered at appellant’s presentment on April 19. Docket entries are judicial
records, and “[i]t has long been settled that a court may take judicial notice of its
own records.” 20 For example, in Daniels v. United States, the court permissibly took
judicial notice of appellant’s release status after it “consulted CourtView, the official
online record system of the Superior Court.” 21 The docket that the trial judge
consulted here is no less “a record system of the Superior Court” than CourtView.
The judge was permitted to take judicial notice of it.
19
Jenkins v. United States, 80 A.3d 978, 995 n.43 (D.C. 2013) (quoting
Bourjaily v. United States, 483 U.S. 171 (1987)).
20
Daniels v. United States, 33 A.3d 324, 330 (D.C. 2011).
21
Id. at 329; see also, e.g., Washington v. United States, 760 A.2d 187, 194–
95 (D.C. 2000) (judicial notice of a civil protection order was proper, where the order
was entered by another Superior Court judge in an earlier case between the defendant
and the complainant he was charged with stalking).
16
Appellant argues that Superior Court Civil Rule 44 requires that a docket entry
be certified as a prerequisite to its admissibility. 22 Rule 44 (“Proving an official
record”) lists several means of proving otherwise admissible official records and
entries in such records. One of those means is to provide a copy attested by the
record custodian and accompanied by a certificate of custody under seal. 23 However,
Rule 44 also provides that “[a] party may prove an official record — or an entry or
lack of entry in it — by any other method authorized by law.” 24 We understand
judicial notice of the Superior Court’s own records to be such an “other method
authorized by law.”
We conclude that the trial judge could take judicial notice of the docket entry
confirming that the stay away order was in effect on April 30, when appellant
attempted to communicate with A.M. with the help of Mr. Tengen. The judge
therefore did not abuse her discretion by admitting the order in evidence.
22
Superior Court Criminal Rule 27 provides that “[a] party may prove an
official record, an entry in such a record, or the lack of a record or entry in the same
manner as in a civil action.”
23
Super. Ct. Civ. R. 44(a)(1)(B).
24
Super. Ct. Civ. R. 44(c).
17
B. Obstruction of Justice
Appellant claims his conviction for obstruction of justice cannot stand for two
reasons. First, he contends, the government’s proof at trial amounted to a
constructive amendment of, or a prejudicial variance from, the obstruction of justice
charged in Count 5. Second, he argues that the evidence is insufficient to support
his conviction for obstruction of justice.
1. Constructive Amendment or Variance
Appellant claims Count 5 of the indictment charged him with obstruction of
justice based on the evidence of his contact (through Mr. Tengen) with A.M. on
April 30, 2014. At trial, however, the government asked the jury to convict appellant
on Count 5 on an entirely different evidentiary basis, namely, its proof of appellant’s
reliance on a fabricated alibi to derail the grand jury’s investigation and counter his
prosecution. Appellant argues that this deviation resulted in either a constructive
amendment of Count 5 or a prejudicial variance in the evidence used to prove it.
“Constructive amendment” is a term that has been defined in various ways in
our case law, but for present purposes it suffices to reiterate the principle this court
“formally adopt[ed]” in Carter v. United States: “A constructive amendment of the
indictment occurs if, and only if, the prosecution relies at trial on a complex of facts
18
distinctly different from that which the grand jury set forth in the indictment.” 25 We
employ the term “variance,” on the other hand, for lesser deviations — commonly,
“when the facts proved at trial materially differ from the facts alleged in the
indictment but the essential elements of the offense are the same.” 26 If an appellant
has preserved the claim by timely objection at trial, a constructive amendment of the
indictment “mandates” reversal without the need for a showing of prejudice, while
“a mere variance” does not warrant reversal unless prejudice is shown. 27
25
Carter v. United States, 826 A.2d 300, 306 (D.C. 2003) (emphasis in the
original) (quoting Robinson v. United States, 697 A.2d 787, 789–90 (D.C. 1997));
accord Tann v. United States, 127 A.3d 400, 451 (D.C. 2015) (quoting Baker v.
United States, 867 A.2d 988, 999 (D.C. 2005)).
26
Carter, 826 A.2d at 304 (brackets omitted) (quoting Ingram v. United
States, 592 A.2d 992, 1006 (D.C. 1991)); accord Marshall v. United States, 15 A.3d
699, 710 (D.C. 2011). We have said that a variance may “become[] a constructive
amendment when facts introduced at trial go to an essential element of the offense
charged, and the facts are different from the facts that would support the offense
charged in the indictment.” Carter, 826 A.2d at 304 (emphasis in original) (quoting
Johnson v. United States, 613 A.2d 1381, 1384 (D.C. 1992)).
27
Zacarias v. United States, 884 A.2d 83, 86–87 (D.C. 2005). “[A] variance
is prejudicial if it either deprives the defendant of an adequate opportunity to prepare
a defense — i.e., fails to give him proper notice of the crime with which he is charged
— or exposes him to the risk of another prosecution for the same offense, which
would violate the Double Jeopardy Clause of the Constitution.” Id.19
Appellant did not object at trial to the inconsistency he now asserts between
his indictment and the government’s proof. Consequently, we review his claim only
for plain error. 28 “Under plain error review, appellant must show that (1) there was
an error, (2) the error was plain, and (3) the error affected his substantial rights.”29
An error is plain when it is “clear or obvious, rather than subject to reasonable
dispute.” 30 “If all three conditions are met, an appellate court may then exercise its
discretion to notice a forfeited error, but only if (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” 31 For the following
reasons, we conclude that appellant has not shown plain error, or, indeed, error at
all.
To show either a constructive amendment or a variance, appellant must
demonstrate that the prosecution deviated from the facts on which Count 5 is based
when it relied at trial on the evidence of a fabricated alibi to prove obstruction of
28
Portillo v. United States, 62 A.3d 1243, 1258 (D.C. 2013); (Alexander)
Smith v. United States, 801 A.2d 958, 961–62 (D.C. 2002).
29
Portillo, 62 A.3d at 1258 n.17 (quoting Little v. United States, 989 A.2d
1096, 1100 (D.C. 2010)).
30
In re Taylor, 73 A.3d 85, 99 (D.C. 2013) (quoting Puckett v. United States,
556 U.S. 129, 135 (2009)).
31
Portillo, 62 A.3d at 1258 n.17 (quoting Thomas v. United States, 914 A.2d
1, 8 (D.C. 2006)).
20
justice. Ultimately, this is an insurmountable barrier for appellant, because Count 5
does not set forth the facts on which it is based.
Appellant argues that a comparison of the date allegations in the three counts
of conviction establishes that the grand jury must have based Count 5 on his contact
with A.M. rather than on his fabricated alibi. Count 5 charges appellant with
obstructing justice “on or about April 30, 2014.” Count 4 likewise charges him with
contempt for contacting A.M. “on or about April 30, 2014.” Count 6, on the other
hand, charges appellant with conspiracy to obstruct justice by creating a false alibi
“[b]etween on or about March 24, 2014 and on or about May 15, 2014.” Appellant
reasons that the identical dates in Counts 4 and 5 and different dating in Count 6
must mean that Counts 4 and 5 are based on the same conduct, i.e., the contact with
A.M., while Count 6 is based on a different set of facts, i.e., the concoction of an
alibi. This is not enough to persuade us there was a plain, inarguably erroneous
inconsistency, amounting to a constructive amendment or variance, between the
offense charged in Count 5 and the prosecution’s proof at trial.
For one thing, although the dates in Counts 4 and 5 match, the rest of Count 5
points towards construing it to involve the same conduct as Count 6. Count 5
charges obstruction of justice, Count 6 charges conspiracy to obstruct justice, and
the two counts cite the same statutory provision criminalizing obstruction, D.C.
Code § 22-722(a)(6). (Count 4 does not cite that provision.) The charged conspiracy
21
involved the fabrication of an alibi, and the evidence showed this conspiracy was
not merely inchoate; it was carried out. It thus would be incongruous for the grand
jury to have charged appellant with conspiring to obstruct justice in one way while
charging him with actually obstructing justice in an entirely different way. We think
it more likely that the same conduct was the root of both charges.
The date alleged in Count 5 does not clearly show otherwise. Although April
30, 2014, is the exact date appellant contacted A.M., it is not inconsistent with, but
rather falls within, the time period in which appellant allegedly conspired in the
creation of a false alibi. “[W]hen an indictment charges that the offense occurred
‘on or about’ a certain date, . . . [t]he evidence will conform to the indictment . . . if
it establishes that the offense was committed on a date reasonably close to the one
alleged.” 32 At least in some circumstances, “on or about” can even cover a period
several months before or after the date specified. We have said, for example, that
September 15, 2007 “was reasonably close” to February 21, 2008, despite a disparity
32
Ingram v. United States, 592 A.2d 992, 1007 (D.C. 1991); see also In re
Nave, 197 A.3d 511, 516 (D.C. 2018) (“[T]his court’s case law establishes that ‘the
phrase “on or about” encompasses more than the days immediately before and after
the date alleged in [a charging document].’” (quoting In re E.H., 967 A.2d 1270,
1274 n.6 (D.C. 2009)).
22
of over five months. 33 Here, the dates are far closer. Count 5 alleges obstruction
that occurred “on or about April 30.” The government presented evidence that
appellant and his friends agreed to the false alibi between roughly March 24 and
May 15, as alleged in Count 6. 34 That period bracketed April 30 by only two to five
weeks on either side. The government’s proof at trial thus conformed with the
charge that appellant obstructed justice “on or about April 30.”
We thus have a situation where the text of Count 5 does not clarify which
conduct the grand jury had in mind in charging appellant with obstruction of justice,
and the government’s proof at trial was consistent with the text of Count 5. In such
circumstances, we previously have rejected claims of a constructive amendment or
variance.
For example, in O’Brien v. United States, the appellant was charged with
obstruction of justice for telling “witnesses” to withhold information, but the
33
Lee v. District of Columbia, 22 A.3d 734, 743 (D.C. 2011); see also,
e.g., Pace v. United States, 705 A.2d 673, 676–78 (D.C. 1998) (no prejudicial
variance where indictment charged that offense occurred on or about April 1994 and
trial evidence established that offenses occurred “sometime during five-month
period between late December 1993 and late May 1994.”).
34
Appellant does not contend that the false alibi agreement did not occur
within this date range.
23
indictment did not specify who the “witnesses” were or what the information was. 35
At trial, the government presented evidence that the appellant told a specific witness
to stick to a specific story.36 Although the appellant contended that the grand jury
had in mind a different witness and a different story, we found that there was “no
material difference between the trial evidence and the specific words of the
indictment.” 37 Thus, we rejected the appellant’s constructive amendment and
variance claims. 38
Similarly, in Williams v. United States, the indictment charged the appellant
with engaging in sexual intercourse with a minor “on or about” a certain month. 39
The appellant claimed the government constructively amended the indictment by
proving “a routine of sexual offenses that were nonspecific as to date or activity.” 40
We disagreed. Although there was a “lack of clarification as to what facts form the
35
962 A.2d 282, 320–21 (D.C. 2008).
36
Id.37
Id.38
Id. at 321.
39
756 A.2d 380, 388 (D.C. 2000).
40
Id. at 389
24
basis of the grand jury charges,” there was no “divergence” between the text of the
indictment and the government’s proof at trial. 41
Here too, appellant has not clearly established a divergence between the facts
on which the grand jury predicated the charge at issue and the government’s proof
of that charge at trial. Appellant therefore has not shown the trial court plainly erred
by permitting a constructive amendment or a variance.
To the extent appellant argues the putative divergence affected his substantial
rights, we disagree. He asserts only that his “right to notice of the charges” was
violated, and that (assuming arguendo there was a constructive amendment) he was
“convicted of an offense with which he has not been charged.” Neither contention
is persuasive. If appellant thought Count 5 was insufficiently specific, he “could
have objected to the indictment or request[ed] a bill of particulars. 42 But we doubt
he thought that, or that he was misled. The trial record belies any notion that
appellant was surprised when the government attempted to prove Count 5 based on
41
Id. at 388–89.
42
Williams, 756 A.2d at 388; see also Hsu v. United States, 392 A.2d 972,
977 (D.C. 1978) (noting that Superior Court Criminal Rule 7(c), which governs the
particularity required in indictments, “cast[s] some of the burden on a defendant to
pursue additional details, if needed, by way of a bill of particulars”).
25
the false alibi. His counsel did not object to the prosecutor’s closing argument, nor
did he express concern when the jury sent a note suggesting that it might rely on the
Instagram photo as probative evidence of the obstruction charge; rather, appellant
approved an instruction that the jury could “look at all of the evidence.” And
appellant has not identified any way in which the putative constructive amendment
or variance affected his defense. 43
2. Sufficiency
Appellant claims that the evidence was insufficient to support his conviction
for obstruction of justice regardless of the set of facts on which the jury based its
decision. Viewing the evidence, as we must, in the light most favorable to the
verdict, and therefore “giving full play to the right of the jury to determine
credibility, weigh the evidence, and draw justifiable inferences of fact,” 44 we are
satisfied the evidence sufficed to convict appellant of the offense.
43
Zacarias, 884 A.2d at 88 (“Appellant cannot show prejudice in this case
because his defense was unaffected by the variance.”).
44
Silver v. United States, 73 A.3d 1022, 1028 (D.C. 2013) (quoting Moore v.
United States, 927 A.2d 1040, 1049 (D.C. 2007)).
26
To prove obstruction of justice in violation of D.C. Code § 22-722(a)(6), “the
government had to show that [appellant] (1) obstructed or impeded or endeavored to
obstruct or impede the due administration of justice in an official proceeding, and
(2) did so with the intent to undermine the integrity of the pending investigation.” 45
“The use of the term ‘endeavor’ [in the obstruction of justice statute] does not require
success or even an overt attempt; it merely requires that the defendant have made
‘any effort or essay to accomplish the evil purpose that the [statute] was enacted to
prevent.’” 46 Evidence of the requisite intent can be circumstantial, that is “inferred
from the context and nature of the alleged criminal conduct.” 47
The government presented the jury with portions of Mr. Turner’s grand jury
testimony in which he admitted under oath having told the prosecutor a “bogus
story” that he and appellant were playing basketball at Riggs when A.M. was
assaulted. To corroborate that story, Mr. Turner had claimed the Instagram photo of
appellant’s shoes was from that night, but he admitted before the grand jury that he
45
(Alton) Smith v. United States, 68 A.3d 729, 742 (D.C. 2013).
46
Irving v. United States, 673 A.2d 1284, 1289 (D.C. 1996) (quoting United
States v. Russell, 255 U.S. 138, 143 (1921), and United States v. Jackson, 513 F.2d
456, 460 (D.C. Cir. 1975)).
47
(Alton) Smith, 68 A.3d at 742 (quoting Campos-Alvarez v. United States,
16 A.3d 954, 965 (D.C. 2011)).
27
had given “the wrong date.” The photo was actually taken two weeks before the
assault. Mr. Turner also testified that Mr. Price came up with the bogus story and
appellant agreed to go along with it.
At trial, Mr. Turner disavowed his grand jury testimony and claimed the
basketball story was “the truth.” He nonetheless agreed that he, Mr. Price, and
appellant “had an agreement that you were supposed to testify in grand jury that you
were at the LaSalle Recreation Center on Riggs Road.” He also confirmed that when
Mr. Price proposed the basketball story, appellant’s “reaction was to agree to go
along with it.”
The jury could credit Mr. Turner’s testimony and find that appellant agreed to
go along with a plan to mislead the grand jury with a fabricated alibi. This was
sufficient to support a finding that appellant endeavored to impede the due
administration of justice in an official proceeding with the intent to undermine the
integrity of the pending grand jury investigation. 48 While there is no testimony that
appellant pressured or even asked Mr. Turner to lie to the grand jury, he did not have
to do so; appellant’s connivance in the corrupt plan was enough.
48
Cf. Silver, 73 A.3d at 1028 (evidence that appellant pressured another
individual to lie to police held sufficient to support conviction of obstruction of
justice under D.C. Code § 22-722(a)(6)).
28
Against this conclusion, appellant argues only that text messages between him
and Mr. Turner on the night of the assault proved he was playing basketball at the
time of the offense, and therefore the alibi was legitimate (even if, allegedly
unbeknownst to appellant, the Instagram photo was not genuine evidence of it). The
text messages are not so probative, however. Mr. Turner told appellant at 4:26 p.m.
that he would be coaching games at 6:00 and 7:40 p.m. that night. Appellant
responded at 4:27 p.m. that he would “prolly come meet” him. At 5:38 p.m.,
appellant texted, “I’m bouta head up [to] Riggs to watch Rob [i.e., Mr. Turner]
coach.” The alleged assault occurred around 6:15 p.m. Viewed in the light most
favorable to the government, the text messages establish only that appellant intended
to go to the Riggs Road recreation center, not that he was actually at Riggs during
the assault. Thus, reasonable jurors could find the texts did not confirm appellant’s
alibi or refute the government’s evidence. 49
49
All the more so in light of the evidence that appellant and Mr. Turner were
identified as suspects from video surveillance footage recorded near the scene, and
that Mr. Turner admitted to police and in his grand jury testimony that he and
appellant were at the alley and that appellant had attacked A.M. there. We take this
into account for purposes of gauging the sufficiency of the evidence, even though
the jury may not have credited some or all of it. See Koonce v. United States, 993
A.2d 544, 551 (D.C. 2010) (“[I]n evaluating the sufficiency of the evidence, ‘we
consider all the evidence admitted at trial.’” (emphasis in original) (quoting Moore
v. United States, 927 A.2d 1040, 1049 (D.C. 2007))); Jones v. United States, 716
A.2d 160, 164 (D.C. 1998) (“So long as the evidence was sufficient to support the
29
C. Conspiracy to Obstruct Justice
Appellant also contends his conviction for conspiracy to obstruct justice was
based on insufficient evidence. We disagree. “To prove conspiracy, the government
must establish that an agreement existed between two or more people to commit a
criminal offense; that the defendant[s] knowingly and voluntarily participated in the
agreement, intending to commit a criminal objective; and that, in furtherance of and
during the conspiracy, a co-conspirator committed at least one overt act.” 50
Mr. Turner testified that he, appellant, and Mr. Price “had an agreement” to
rely on a false alibi, and that he — a co-conspirator — took the overt step of actually
telling the prosecutor the “bogus story.” Absent any reason to think Mr. Turner
entered into the agreement unknowingly, we find this evidence sufficient to support
the conspiracy conviction.
III. Conclusion
In sum, we hold that (1) the trial court did not err by taking judicial notice of
the undated stay away order and admitting it in evidence; (2) appellant has not shown
conviction in question, the fact that the jury acquitted the appellant of certain related
counts does not invalidate the conviction.”).
50
Tann, 127 A.3d at 424.
30
the trial court plainly erred by tolerating a constructive amendment or variance with
respect to Count 5 of the indictment; and (3) appellant’s convictions for contempt,
obstruction of justice, and conspiracy to obstruct justice are supported by sufficient
evidence. The judgment of the Superior Court is
Affirmed.