United States v. Gregory Bell

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 9, 2015 Decided July 28, 2015
No. 08-3037
UNITED STATES OF AMERICA,
APPELLEE
v.
GREGORY BELL, ALSO KNOWN AS BOY-BOY, ALSO KNOWN AS
BUNGA,
APPELLANT
Consolidated with 11-3032
Appeals from the United States District Court
for the District of Columbia
(No. 1:05-cr-00100-2 and -3)
Sicilia C. Englert and Robert S. Becker, appointed by the
court, argued the causes for appellants. With them on the joint
briefs was Michael E. Lawlor, appointed by the court.
James M. Perez and Stratton C. Strand, Assistant U.S.
Attorneys, argued the causes for appellee. With them on the
briefs were Ronald C. Machen Jr., U.S. Attorney, and
Elizabeth Trosman and John P. Mannarino, Assistant U.S.
Attorneys. Elizabeth H. Danello, Assistant U.S. Attorney,
entered an appearance.
2
Before: HENDERSON, BROWN and WILKINS, Circuit
Judges.
Opinion for the Court filed by Circuit Judge BROWN.
Opinion dissenting in part and concurring in part filed by
Circuit Judge WILKINS.
BROWN, Circuit Judge: “[L]ike a bad penny, it return[s]
to [us] again.” Letter from Abigail Adams to Mary Smith
(Oct. 6, 1766) (referencing unattributed aphorism). We
revisit the Congress Park Crew (“Crew”), “a loose-knit gang
that ran a market for crack cocaine in the Congress Park
neighborhood of Southeast Washington, D.C., for nearly
thirteen years.” United States v. Jones, 744 F.3d 1362, 1365
(D.C. Cir. 2014). Previously, we affirmed the sentences
imposed on three of six jointly-tried Crew members; two
additional members now appeal: one challenging his
conviction and both challenging their sentences. We affirm
the district court.
I
In 2005, eighteen Congress Park Crew members were
indicted on various crimes including conspiracy and crack
distribution. Eleven members pleaded guilty and one member
was tried separately in 2006; the remaining six Crew
members were tried together in 2007. In Jones we found the
district court did not err in its sentencing of three of the
jointly-tried Crew Members—Joseph Jones, Desmond
Thurston, and Antwuan Ball. Id. at 1367–70. The present
consolidated appeal concerns two additional Crew members
tried in 2007—James Wilson and Gregory Bell (collectively
“Defendants”). Wilson was convicted of two counts of aiding
3
and abetting first-degree murder, seven counts of distributing
crack cocaine, and one count of using a communications
facility in relation to a narcotics offense. Bell was convicted
of three counts of distributing crack cocaine. The Defendants
were acquitted of a mélange of other charges including all
narcotics and racketeering conspiracy charges and, in
Wilson’s case, a third count of aiding and abetting murder.
Wilson challenges his conviction at trial. He claims
ineffective assistance of counsel based on substitutions of his
defense attorneys, that two uncharged murders were
improperly admitted into evidence, and that the Government
failed timely to produce pieces of exculpatory evidence in
violation of Brady v. Maryland, 373 U.S. 83 (1963). Both
Defendants also challenge the sentences imposed on them for
crack cocaine distribution. We address each issue in turn.
II
Wilson’s most facially credible argument is that
substitutions of trial counsel deprived him of effective
representation. But we are ultimately unpersuaded by his
theory on appeal, which hinges on an extension of the
doctrine of presumptive prejudice.
A
The course of Wilson’s representation was marked by a
number of substitutions of his lead and secondary court-
appointed counsels. 1 We summarize the substitutions most
pertinent to the present appeal. In January 2007—
1
Secondary counsel was appointed because the Government could
seek the death penalty on certain charged offenses.
4
approximately two months prior to trial—Jenifer Wicks
assumed the role of lead counsel, after previously assisting as
secondary counsel for several years. On February 5, 2007,
Gary Proctor was appointed to assist Wicks, and trial began
on February 13, 2007. Approximately four months into trial,
and shortly before the close of the Government’s case, Wicks
was hospitalized then subsequently released with medical
instructions to refrain from stressful work. In Wicks’s
prolonged absence Proctor filed a motion for mistrial or
severance. Proctor asserted he was, in his view, unable to
adequately represent Wilson because, inter alia, he had
limited federal trial experience 2 and had missed significant
portions of the Government’s case at trial, amounting to
approximately one third of the Government’s case by
Proctor’s unverified but uncontested estimation.
The district court initially granted severance but the
Government sought reconsideration, proposing a “brief
continuance[,] . . . a week or two, to allow Mr. Proctor to get
up to speed,” before allowing the Government “to finish its
five to six days or so of its case,” then a longer continuance
(“a month and a half”), to provide Proctor time to prepare
Wilson’s case in defense. J.A. 3383–84. Finding the
Government’s proposal “eminently fair,” J.A. 3386, the
district court reversed its earlier grant of severance.
Secondary counsel 3 was appointed to assist Proctor in his new
2
Proctor did, however, possess considerable state trial experience,
including participating, by his own estimate, in “perhaps” a dozen
death penalty cases in five states. He also served as a second chair
in a prior federal criminal trial.
3
Matthew Davies was appointed on June 28. The court recessed
until July 9. The Government concluded its case on July 17. The
court recessed again until August 21. See J.A. 3408, 3215.
5
role as lead counsel, and trial resumed in general accordance
with the Government’s proposal.
Proctor represented Wilson as lead counsel through the
remainder of trial arguments. Although the dissent assumes
Wicks’s departure from the case robbed the defense of the
benefits of her prior work, Proctor’s ability (or inability) to
directly consult with Wicks, in preparing and conducting
Wilson’s defense at trial, is sparsely developed in the record
before us. But see J.A. 3417 (indicating Wicks had at least
some capacity to accept telephone calls, albeit without
providing insight into the extent of her availability or to what
extent Proctor or Davies employed Wicks as a resource), 3486
(Proctor noting he “dragged Ms. Wicks out of retirement one
more time,” to be present in the courtroom during his closing
arguments). 4
B
Despite being acquitted on a number of serious
offenses—including counts of aiding and abetting murder,
4
The dissent suggests there is no reasonable expectation that Wicks
could significantly assist in the defense, based on her doctor’s
orders. See Dissenting Op. at 18 n.2. Wicks’s doctor’s instructions
make clear Wicks “need[ed] to be off work for . . . 2 weeks
[following her hospitalization] and [could] not return to trial work
for [an] additional 6 months.” J.A. 739. But we do not find these
instructions sufficient to determine Wicks’s unavailability to
consult with Proctor, except perhaps in the two weeks immediately
after her hospitalization. See also J.A. 3399 (“A fair reading of that
letter . . . is that after two weeks or so time, Ms. Wicks is available
in some capacity, whether it’s assisting, writing direct exam
outlines, preparing witnesses in her office, consulting, doing
something along those lines.”).
6
assault with intent to murder, and RICO and narcotics
conspiracy—Wilson asserts Proctor’s representation fell
below the minimum threshold of professional competence
required by the Sixth Amendment. See generally Strickland
v. Washington, 466 U.S. 668 (1984). Rather than identifying
deficiencies in Proctor’s actual representation and then
arguing prejudice under Strickland’s two-part test, see id. at
687–88, Wilson argues Proctor’s representation was
presumptively unreliable.
In United States v. Cronic the Supreme Court identified
three “circumstances that are so likely to prejudice the
accused that the cost of litigating their effect in a particular
case is unjustified.” 466 U.S. 648, 658 (1984). See also
Woods v. Donald, 135 S. Ct. 1372, 1378 (2015) (reiterating
that Cronic applies only in such circumstances). “Most
obvious, of course, is the complete denial of counsel.”
Cronic, 466 U.S. at 659. The Court also recognized the
presumption in the constructive absence of counsel, “if
counsel entirely fails to subject the prosecution’s case to
meaningful adversarial testing,” or where “[c]ircumstances
. . . [are] present . . . [such that] although counsel is available
to assist the accused during trial, the likelihood that any
lawyer, even a fully competent one, could provide effective
assistance is so small that a presumption of prejudice is
appropriate without inquiry into the actual conduct of the
trial.” Id. at 659–60.
Courts have limited Cronic to “a very narrow range of
situations.” United States v. Hughes, 514 F.3d 15, 18 (D.C.
Cir. 2008); United States v. Thompson, 27 F.3d 671, 676
(D.C. Cir. 1994). For example, Cronic is only applicable for
failure to test a prosecutor’s case where “the attorney’s failure
. . . [is] complete,” Hughes, 514 F.3d at 18; the presumption is
“reserved for situations in which counsel has entirely failed to
7
function as the client’s advocate.” Florida v. Nixon, 543 U.S.
175, 189 (2004). Compare Burdine v. Johnson, 262 F.3d 336,
349 (5th Cir. 2001) (unconscious attorney presumptively
prejudicial, if unconscious during a critical stage of a
proceeding), with Bell v. Cone, 535 U.S. 685, 696 (2002) (no
presumptive prejudice where counsel “failed to mount some
case for life after the prosecution introduced evidence in the
sentencing hearing and gave a closing statement”) (internal
quotation marks omitted); Cronic, 466 U.S. at 649–50
(presumption inapplicable where a young attorney represented
a defendant in a complex mail fraud case, where the attorney
specialized in real estate law, it was his first jury trial, and he
had twenty-five days to prepare versus the Government’s four
and one-half years); Bellamy v. Cogdell, 974 F.2d 302, 303–
04 (2d Cir. 1992) (no per se prejudice where 71 year-old
defense attorney suffered from a variety of physical ailments
that left him “virtually incapacitated” and “at times” unable to
concentrate, even where those incapacities led to the
suspension of the attorney’s license shortly after the
defendant’s conviction at trial).
Wilson would have us extend Cronic to cases where a
substitution means at least one specific defense counsel was
not continuously present during each and every critical stage
of trial. 5 In Wilson’s view, in cases where counsel is
substituted, the duration of the continuance granted to allow
substitute counsel to prepare is irrelevant. See Reply Brief for
Appellant David Wilson at 7, United States v. Bell, No. 08-
5
In this case, Proctor began his representation of Wilson prior to
the commencement of trial. In this general sense, Proctor
represented Wilson continuously throughout the period of trial, but
the crux of Wilson’s argument centers on parts of the trial—prior to
Proctor’s assumption of the lead counsel role—where Wicks was
present to represent Wilson but Proctor was absent.
8
3037 (June 30, 2014) (“Wilson’s complaint is not that Proctor
[] needed more time to prepare after Wicks became ill;
Wilson’s argument is that an effective defense was impossible
without Wicks.”). Because the issues are not factually
developed on the record before us, Wilson’s theory of
presumptive prejudice cannot hinge on the substitute
counsel’s inability to consult with his predecessor or on prior
counsel leaving no substantial trial notes or memoranda to
assist in the defense. 6
The dissent focuses on concerns Wilson never raised—
either at trial or on appeal: (1) that the mid-trial substitution
led to the irretrievable loss of Wick’s strategic consultations
with him and (2) that Proctor could not begin his
representation with the same well-developed rapport. But,
since the Sixth Amendment does not guarantee representation
by a single counsel or a meaningful relationship with counsel,
Morris v. Slappy, 461 U.S. 1, 19-19-20 (1983), the fact that
Proctor could not replicate the exact depth of relationship
Wilson enjoyed with Wicks—even if true—cannot be the
basis of a presumption of prejudice.
Further, the record is inconclusive as to whether Proctor
had access to a paralegal who was present for the entire trial
and could foster continuity for the defense team after the mid-
trial substitution. See J.A. 3381 (the Government arguing that
Proctor was “not truly alone,” in part, because “Ms. Wicks
ha[d] a paralegal who’s been very involved in the case, [and
6
Although we do not know for certain, Proctor would at least
potentially have had access to any notes or memoranda Wicks may
have left behind, as he had access to Wicks’s office and records
after her hospitalization. J.A. 3379 (“I spent half of Friday and
most of Saturday in [Wicks’s] office just physically trying to figure
out where everything is.”).
9
who] certainly must know the files”). Wilson does not point
to anything in the record to adequately and concretely
demonstrate that Proctor’s lead counsel representation began
from a completely blank slate. We decline to presume such
facts from an underdeveloped record, particularly where—as
here—no other party would have been better situated than
Wilson to inform the court of any limitations.
Wilson analogizes Proctor to an errant defense counsel
whose absence prevents him from “assess[ing] each piece of
the government’s case[,] observ[ing] how it is received by the
jury[,] assess[ing] how it fits into the larger picture of trial[,]
and . . . choos[ing] what evidence to present in the defense[’s]
case.” Id. at 9. To be sure the complete absence of any
dedicated counsel for the accused, during a critical stage of a
proceeding, would warrant Cronic’s presumption. See, e.g.,
United States v. Russell, 205 F.3d 768, 771–72 (5th Cir.
2000); United States v. Decoster, 624 F.2d 196, 256 (D.C.
Cir. 1976) (en banc) (“[W]here the defendant had no counsel
at all at a critical stage of his trial, automatic reversal of his
conviction is usually in order.”). But where counsel is
substituted promptly, there is no impermissible gap in a
defendant’s representation. The identity of counsel has
changed but at each critical stage a defense lawyer was
present to actively subject the prosecution’s case to “the
crucible of meaningful adversarial testing.” Cronic, 466 U.S.
at 656. See Goodwin v. Johnson, 132 F.3d 162, 176 (5th Cir.
1997) (“When the defendant receives at least some
meaningful assistance, he must prove prejudice in order to
obtain relief for ineffective assistance of counsel.”) (emphasis
added). Cf. Carroll v. Renico, 475 F.3d 708, 713 (6th Cir.
2007) (finding the Supreme Court has not even clearly
10
established whether a co-defendant’s counsel standing in for a
defendant’s absent lawyer is presumptively prejudicial). 7
The inquiry thus turns on whether substitution of counsel,
during the course of trial, is tantamount to a constructive
absence of representation or is otherwise a circumstance
where no “lawyer, even a fully competent one, could provide
effective assistance.” Id. at 659–60. “The question is not
whether counsel in those circumstances will perform less well
than he otherwise would, but whether the circumstances are
likely to result in such poor performance that an inquiry into
its effects would not be worth the time.” Wright v. Van
Patten, 552 U.S. 120, 125 (2008).
Mid-trial substitution may prove disruptive. Even
following a continuance, a substitute defense counsel will
sometimes be disadvantaged by his absence from earlier
proceedings. Indeed, best practice may favor allowing for a
severance or mistrial where the prolonged illness or absence
of a defense counsel would require substitution. But “best
practice” is not the standard for constitutional deficiency. Nor
does every disadvantage to the defense’s representation,
however meagre, suffice to “infect[] [an] entire trial with error
of constitutional dimensions.” United States v. Frady, 456
U.S. 152, 170 (1982). See generally Harrington v. Richter,
562 U.S. 86, 110 (2011) (the Sixth Amendment “does not
guarantee perfect representation, only a ‘reasonably
competent attorney’”).
7
We do not opine on the propriety of such an arrangement, which
other circuits—though not the Supreme Court—have suggested is
improper. See, e.g., Olden v. United States, 224 F.3d 561, 569 (6th
Cir. 2000). In the present case, despite substitutions, Wilson was
always represented by attorneys dedicated to his defense.
11
Imaginative theorizing added to rampant conjecture
augmented by inapposite examples does not a convincing case
for Cronic’s categorical rule make. Prudence counsels only
greater caution when called on to find constitutional
inadequacy as a per se matter, particularly where the state of
the record requires speculation as to deficiencies that may or
may not have existed. In this case, even the particular days
Proctor missed prior to the substitution is not beyond
contention. See generally Government’s Brief at 25 & n.10,
United States v. Bell, No. 08-3037 (June 30, 2014) (noting
that Proctor’s estimate that he missed one-third of the trial
was neither expressly endorsed by the court nor confirmed
below).
If any break in the continuity of counsel at trial were
sufficient to create a presumption of prejudice, even where a
different attorney for the accused was present at critical stages
missed by the substitute lead counsel, the Sixth Amendment’s
guarantee would resemble less the assurance of “effective”
representation and instead demand something closer to a
“perfect” defense. While perfection may seem a laudable
goal, this latter threshold of performance is not demanded by
our Constitution. See United States v. Gonzalez-Lopez, 548
U.S. 140, 147 (2006) (right to counsel guarantees “effective
(not mistake-free) representation”). Cf. Jackson v. Johnson,
150 F.3d 520, 525 (5th Cir. 1998) (“A constructive denial of
counsel occurs . . . in only a very narrow spectrum of cases
where the circumstances leading to counsel’s ineffectiveness
are so egregious that the defendant was in effect denied any
meaningful assistance at all.”) (quoting Childress v. Johnson,
103 F.3d 1221, 1229 (5th Cir.1997)).
Wilson emphasizes that, unless the lawyer assuming the
lead counsel role was continuously present at trial prior to the
substitution, he will have been unable to physically “observ[e]
12
witnesses as they testify [or] . . . how the jury receive[d] the
evidence” for any days missed. Brief for Appellant David
Wilson at 35, United States v. Bell, No. 08-3037 (June 30,
2014). Substitute lead counsel is instead left to review the
trial transcript; evaluate notes or memoranda left by substitute
counsel’s predecessor; or engage in second-hand consultation
with the former lead counsel, if available. 8
Review of the trial transcript or other records is, at times,
an imperfect substitute for being present. Indeed, courts often
acknowledge that “a cold record cannot recreate testimony. A
witness may be credible on paper but not on the stand.”
Harvard v. Florida, 459 U.S. 1128, 1134 (1983). 9 This does
not mean, however, that it is impossible for an attorney to
8
Although they do not specifically address mid-trial substitutions,
ABA Guidelines on the performance of defense counsel in death
penalty cases recommends counsel, and other members of the
defense team, “maintain[] the records of [a] case in a manner that
will inform successor counsel of all significant developments
relevant to the litigation,” provide successor counsel with client
files and all other information relevant to the representation, “share
potential further areas of legal and factual research with successor
counsel,” and cooperate with successor counsel’s “professionally
appropriate legal strategies.” Am. Bar Ass’n, Guidelines for the
Appointment and Performance of Defense Counsel in Death
Penalty Cases, 31 HOFSTRA L. REV. 913, 1074 (2003).
9
This maxim is frequently employed to rationalize the greater
deference appellate tribunals grant trial judges when reviewing
issues of credibility. See, e.g., Anderson v. City of Bessemer City,
N.C., 470 U.S. 564, 575 (U.S. 1985). Nonetheless, there is no per
se rule against mid-trial substitution of judges. See United States v.
Thomas, 114 F.3d 228, 254 (D.C. Cir. 1997) (“[T]he complexity of
a case and the abundance of evidence typically determine the extent
of the review necessary to familiarize a successor judge with the
record . . . .”). See generally FED. R. CRIM. P. 25(a).
13
make sound assessments of credibility in the absence of direct
observation of trial testimony. Even if it does not perfectly
substitute for in-person observation, trial transcripts can
provide insight into issues of reliability. Inconsistent
statements; defensive, evasive, or ambiguous answers; and the
nature of follow-up questions asked may all offer a window
into the reliability of a witness’ comments and are frequently
discernable based on a substitute counsel’s review of the
transcripts alone, even assuming the absence of any trial notes
or other commentary from the predecessor defense counsel.
There may be cases where a defendant is constitutionally
prejudiced by his substitute counsel’s inability to directly
evaluate a critical witness’s demeanor at trial because, for
example, prior counsel was unavailable to consult and left no
material records or notes, the transcript of the witness’s
testimony was highly ambiguous, and the prosecution’s case
significantly hinged on the particular witness’ recitation. But
constitutional prejudice does not automatically flow in every
case where counsel is substituted mid-trial. 10 See United
States v. Griffiths, 750 F.3d 237, 239 (2d Cir. 2014) (per
curiam) (“We hold that there is no per se violation of the
Sixth Amendment right to be represented by one’s counsel of
choice and to effective assistance of counsel when a district
court, after defense counsel has become incapacitated,
appoints counsel, over defendant’s objection, to deliver the
defense summation, notwithstanding the fact that appointed
counsel did not witness the presentation of the evidence.”).
10
If we adopted Wilson’s theory, a mid-trial substitution would
perhaps only be permitted if the substitute counsel was present
during all critical stages prior to his substitution.
14
That a mid-trial substitution of counsel may potentially
increase the likelihood of strategic blunders by the defense
does not invalidate the prudence of inquiring whether, in a
given case, mistakes of constitutional dimension were
actually made. Cf. Childress, 103 F.3d at 1229 (“[W]e have
consistently distinguished shoddy representation from no
defense at all. . . . [B]ad lawyering, regardless of how bad,
does not support the [per se] presumption of prejudice under
Cronic.”). 11 A challenge to the mid-trial substitution of
Proctor calls for “precisely the type of probing and fact-
11
In some cases, it may prove challenging to show precisely how a
substitution of counsel affected the course of performance—a factor
that we have, at times, considered relevant in other contexts. E.g.,
United States v. Gonzalez-Lopez, 548 U.S. 140, 150 (2006)
(recognizing a limited right to counsel of choice, where counsel is
not appointed). But the challenge of divining how substitutions
affected the course of a proceeding are not different in kind from
other circumstances where Strickland governs. See, e.g., Padilla v.
Kentucky, 559 U.S. 356, 366 (2010) (indicating Strickland governs
ineffectiveness claims based on acceptance of a plea bargain). Cf.
Strickland, 466 U.S. at 710 (Marshall, J., dissenting) (criticizing
this aspect of the Strickland standard). Moreover, to say that a
substitution of counsel affects the course of a trial is not the
equivalent of saying the substitution rendered representation
constitutionally ineffective. See Gonzales-Lopez, 548 U.S. at 150–
51 (“[T]he requirement of showing prejudice in ineffectiveness
claims stems from the very definition of the right at issue; it is not a
matter of showing that the violation was harmless, but of showing
that a violation of the right to effective representation occurred. . . .
[I]f and when counsel’s ineffectiveness ‘pervades’ a trial, it does so
(to the extent we can detect it) through identifiable mistakes. We
can assess how those mistakes affected the outcome.”). See also
Strickland, 466 U.S. at 693 (majority opinion) (“Attorney errors
come in an infinite variety and are as likely to be utterly harmless in
a particular case as they are to be prejudicial.”).
15
specific analysis” that Strickland is designed to require. Sears
v. Upton, 561 U.S. 945, 955 (2010) (per curiam).
We decline to sweep virtually every mid-trial substitution
under Cronic’s blanket rule. See generally Cronic, 466 U.S.
at 659 n. 26 (“[T]here is generally no basis for finding a Sixth
Amendment violation unless the accused can show how
specific errors of counsel undermined the reliability of the
finding of guilt.”); Appel v. Horn, 250 F.3d 203, 214 (3d Cir.
2001) (“[T]he majority of Sixth Amendment right to counsel
cases are, and should be, analyzed under the ineffective
assistance standard of Strickland which requires a showing of
prejudice.”). The Cronic inquiry is a largely mechanical one,
and we are mindful of avoiding a holding that could open the
door to replacing “case-by-case litigation over prejudice with
case-by-case litigation over prejudice per se.” Scarpa v.
Dubois, 38 F.3d 1, 14 (1st Cir. 1994) (in the context of
finding Cronic inapplicable based on claims of substandard
attorney performance).
Moreover, we are unpersuaded that a contrary rule would
actually prove narrow. The dissent suggests Cronic would
“only” apply where a “defense counsel is incapacitated mid-
trial . . . and no replacement attorney is available who
observed the testimony of key government witnesses . . . and
participated in material consultations with the defendant.”
Dissenting Op. at 19. The dissent’s logic would extend to
most mid-trial substitutions. And this kind of excruciatingly
detailed examination of the facts is exactly the circumstance
for which Strickland is designed.
III
Wilson also challenges the admission of evidence of two
uncharged murders: that Wilson—with the assistance of his
16
drug supplier, Larry Browne—shot and killed Sam Phillips
and that, in a botched robbery of another drug dealer, Wilson
and two other co-conspirators killed Reginald Reid.
The lower court deemed the Phillips murder extrinsic to
the charged conspiracies, noting it stemmed from a “dispute
over an overlapping romantic relationship.” J.A. 2133.
Nonetheless the murder was admitted under Federal Rule of
Evidence 404(b) to show Wilson’s access to and familiarity
with the use of firearms.
In contrast, the Reid murder was admitted as “intrinsic”
to the charged conspiracy because it was “evidence . . . of the
development of relationships among the alleged co-
conspirators to show the way that the alleged conspiracies
grew and were formed and developed, as well as evidence of
prior conspiratorial conduct among the alleged conspirators
that would be corroborative of the defendant’s entry into the
charged agreements in the indictment.” J.A. 2132.
Our review is for abuse of discretion. See United States
v. Douglas, 482 F.3d 591, 596 (D.C. Cir. 2007) (Rule 404(b)
standard); see also id. (review of Rule 403 balancing
reviewed only for grave abuse); United States v. Becton, 601
F.3d 588, 595 (D.C. Cir. 2010) (applying the Rules 401 and
403 abuse of discretion standard when reviewing if evidence
was intrinsic to the charged crime). We find no basis to
reverse the district court’s judgment.
A
As to the Phillips murder, the Government makes a
threshold argument that Wilson waived his challenge by
arguing he should be allowed to offer evidence that the
Phillips shooting resulted in Phillips’s death. See Wagner v.
17
Taylor, 836 F.2d 596, 599 (D.C. Cir. 1987) (“It has long been
settled that on appeal a litigant cannot avail himself of an
error that he induced the court under review to commit.”).
We find no applicable waiver. Wilson argued in favor of
presenting evidence the Phillips shooting ended in a homicide
because the district court had previously held, over Wilson’s
objections, that the shooting was admissible. In light of the
lower court’s ruling, Wilson favored presenting evidence the
Phillips shooting ended in a homicide under the theory that
evidence of a homicide would better show any bias of the
Government’s witness (Browne), who had allegedly assisted
Wilson in the Phillips shooting and was testifying pursuant to
the conditions of a plea agreement.
Though not waived, Wilson’s merits argument is
fruitless. The Phillips murder is admissible to show use of
and familiarity with firearms. Knowledge of firearms is a
permissible purpose under Rule 404(b). See FED. R. EVID.
404(b)(2); United States v. Miller, 895 F.2d 1431, 1435 (D.C.
Cir. 1990) (the purposes listed in Rule 404(b)(2) are
illustrative, not exhaustive). Prior use and familiarity with
firearms is relevant to satisfying the scienter requirement to
multiple charged offenses, including counts of first degree
murder while armed and use of a firearm in relation to a crime
of violence. Cf. Cassell, 292 F.3d at 794–95 (“A prior history
of intentionally possessing guns . . . is certainly relevant to the
determination of whether a person . . . on the occasion under
litigation knew what he was possessing and intended to do
so.”).
It was likewise not an abuse of discretion—much less
grave abuse—for the lower court to hold exclusion
18
unwarranted under Rule 403. 12 See FED. R. EVID. 403.
Beyond the Phillips murder, considerable other evidence was
presented showing Wilson’s access and familiarity with
firearms, including testimony that Wilson carried a gun; twice
shot at James Faison, a rival gang member; and, in a separate
incident, opened fire outside a recreation center. This tends to
reduce the danger of unfair prejudice from evidence of the
Phillips murder—as that shooting “did not involve conduct
any more sensational or disturbing than the [other]” conduct
attributed to Wilson. United States v. Roldan-Zapata, 916
F.2d 795, 804 (D.C. Cir. 1990). The relevancy of the Phillips
shooting is also not rendered redundant, in light of other
evidence of his familiarity with firearms; the shooting holds
unique probative value because it arose during a drug
transaction that “occurred relatively close in time to the
conduct charged in the indictment, thereby increasing the
probative value of the 404(b) evidence.” United States v.
West, 22 F.3d 586, 597 (5th Cir. 1994).
12
Rule 404’s advisory committee note employs slightly different
language in describing the balancing inquiry. FED. R. EVID. 404
advisory committee’s note (“The determination must be made
whether the danger of undue prejudice outweighs the probative
value of the evidence in view of the availability of other means of
proof and other factors . . . under Rule 403.”). Contrary to Wilson’s
argument, Rule 403’s ordinary “substantially outweighs” standard
applies in weighing prejudice for evidence admitted under Rule
404(b). See, e.g., Cassell, 292 F.3d at 795 (“Our analysis does not
end after determining that prior bad acts evidence is probative to a
non-character issue under Rule 404(b). We must continue with a
determination of whether the district court erred in determining that
the evidence is admissible under Rule 403 . . . [which] prohibits the
admission of relevant evidence if its probative value is substantially
outweighed by the danger of unfair prejudice . . . .”).
19
Moreover, the district court issued limiting instructions to
mitigate the danger of undue prejudice or improper
inferences. There is nothing to suggest the jury ignored the
court’s instructions. See United States v. Brown, 597 F.3d
399, 406 (D.C. Cir. 2010) (“The jury is presumed to have
followed [a] cautionary instruction.”). Thus, “[w]here, as
here, there is no compelling or unique evidence of prejudice,
we deem such a limiting instruction sufficient to protect a
defendant’s interest in being free from undue prejudice . . . . .”
United States v. McCarson, 527 F.3d 170, 174 (D.C. Cir.
2008).
B
The district court also admitted evidence of the Reid
murder, finding it intrinsic to the charged conspiracy because
it “show[ed] the way that the alleged conspiracies grew and
were formed and developed, as well as evidence of prior
conspiratorial conduct among the alleged conspirators that
would be corroborative of the defendant’s entry into the
charged agreements in the indictment.” J.A. 2132.
Generally intrinsic evidence includes “act[s] that [are]
part of the charged offense” or “some uncharged acts
performed contemporaneously with the charged crime . . . if
they facilitate the commission of the charged crime.” United
States v. Bowie, 232 F.3d 923, 929 (D.C. Cir. 2000). Thus,
evidence is not generally rendered intrinsic simply because it
completes the story or explains the circumstances behind a
charged offense. Id. But even if evidence of the Reid murder
was improperly admitted as intrinsic, any error was
20
harmless. 13 “In a conspiracy prosecution, the government is
[] allowed considerable leeway in offering . . . [extrinsic,
‘other crimes’ evidence under Rule 404(b)(2)] to inform the
jury of the background of the conspiracy charged . . . and to
help explain to the jury how the illegal relationship between
the participants in the crime developed.”
United States v. Mathis, 216 F.3d 18, 26 (D.C. Cir. 2000). It
is well-established that such other crimes evidence is
admissible to establish the “contours of [a] conspiracy.”
United States v. Graham, 83 F.3d 1466, 1473 (D.C. Cir.
1996). 14
13
We therefore need not resolve whether the Reid murder can be
intrinsically admitted as prior conspiratorial conduct within the
umbrella of the charged conspiracy—i.e., as an (uncharged) overt
act in furtherance of the charged drug conspiracy or as
contemporaneous action in facilitation of the conspiracy—based on
the Government’s theory that it was committed to “enrich certain
members of the [conspiracy], as well as weaken another drug
dealer.” J.A. 656 (Government’s Supplemental Notice & Motion to
Admit Evidence of Other Crimes). But see United States v.
Watkins, 591 F.3d 780, 785 (5th Cir. 2009); United States v. Lewis,
759 F.2d 1316, 1344 (8th Cir. 1985) (“[T]he government is not
limited in its proof to establishing the overt acts specified in the
indictment.”).
14
In the context of the Reid murder, Wilson’s opening brief makes
only fleeting reference to the Rule 403 standard, as part of its
summary of a Third Circuit case. See Brief for Appellant David
Wilson at 46. Because his Reid murder, Rule 403 argument is first
made in his Reply, see Reply Brief for Appellant David Wilson at
20, the argument is waived, see In re Asemani, 455 F.3d 296,
300(D.C. Cir. 2006).
21
IV
Wilson next asserts Brady violations, which bear on his
conviction for two counts of aiding and abetting murder. The
Government’s theory was that Wilson acted as the getaway
driver for two gunmen in the murder of rival gang-member
Ronnie Middleton and his girlfriend Sabrina Bradley. The
Government argued Wilson assisted in the shootings because
he believed Middleton was responsible for the murder of
Maurice Doleman, who was “like a brother” to Wilson. See
J.A. 2572 (“They was almost like brothers, sir.”). Wilson
points to the Government’s failure to timely disclose various
reports allegedly material to the murders and favorable to the
accused. Our review is de novo. In re Sealed Case No. 99-
3096 (Brady Obligations), 185 F.3d 887, 892 (D.C. Cir.
1999).
Wilson first points to the Carter Report, which the
Government disclosed roughly three months into trial. That
police report contains a two-paragraph section reflecting
Bradley Carter’s statement that Aman Ball and Joseph Jones
committed the murders, rather than Antonio Roberson and
Antoine Draine—as the Government had theorized at trial.
Second, Wilson argues the Doleman Reports were also
improperly suppressed. Wilson obtained the Doleman
Reports only in post-trial discovery. The reports consist of
summaries of police interviews conducted during the
investigation of the Doleman murder, including summaries of
statements by three witnesses who indicated that they
believed or had heard individuals other than Middleton were
responsible for Doleman’s death.
Wilson cannot show the delayed disclosure of the Carter
Report was prejudicial. See generally Strickler v. Greene,
527 U.S. 263, 281–82 (1999) (the three components of a
22
Brady claim are (1) the evidence at issue must be favorable to
the accused because it is exculpatory or impeaching; (2) the
evidence must have been suppressed by the State, willfully or
inadvertently; and (3) prejudice must have ensued). “[W]here
disclosure was made but made late, the defendant must show
a reasonable probability that an earlier disclosure would have
changed the trial’s result and not just that the evidence was
material.” United States v. Andrews, 532 F.3d 900, 907 (D.C.
Cir. 2008). As the district court noted, the Carter Report “was
disclosed approximately two months before the close of the
government’s case-in-chief, and Wilson had ample
opportunity to use this evidence at trial.” United States v.
Wilson, 720 F. Supp. 2d 51, 70 (D.D.C. 2010). To the extent
the Government’s narrative as to the Middleton-Bradley
murders was not fully challenged, it is because Wilson elected
not to use the Carter Report to do so. See id. at 68 (Wilson
did not recall the Government’s witnesses, Kelliebrew or
Capies, to incorporate information from the Carter Report into
the defense’s cross-examination or otherwise use the report to
investigate facts and question witnesses). 15 Moreover, even if
the Government’s delay had prevented Wilson from using the
Carter Report at trial (it did not), it is doubtful any prejudice
would have ensued. The report does not even overtly
contradict the Government’s theory regarding Wilson’s
involvement in the Middleton-Bradley murders. Although the
report implicates two different shooters, the Government
15
Wilson’s attorney, Wicks, also did not request a continuance to
further investigate the new information. She instead asked for a
delay in calling Carter, which the district court granted. J.A. 2992–
93. See Andrews, 532 F.3d at 907 (no Brady violation based on the
government’s failure to produce notes until the fourth day of trial,
where the notes were only six pages in length and the defense did
not request a continuance to examine or investigate them despite
having two opportunities to do so).
23
believed Wilson was the driver to and from the killings, not
one of the shooters.
We also find no Brady violation based on suppression of
the Doleman Reports. “Suppressed information is
exculpatory and thus ‘favorable’ to the defense for Brady
purposes when it directly contradicts the motive theory
testified to by prosecution witnesses.” Mendez v. Artuz, 303
F.3d 411, 414 (2d Cir. 2002). The Government theorized
Wilson believed Middleton was responsible for Doleman’s
death, and this belief precipitated Wilson’s involvement in the
Middleton-Bradley murders. The suppressed reports,
however, merely demonstrate that other individuals believed
someone other than Middleton was responsible—which is, at
best, tertiary to the question of Wilson’s subjective beliefs and
does not directly contradict the Government’s theory of
motive. Cf. Hunt v. Lee, 291 F.3d 284, 295 (4th Cir. 2002)
(“[T]he state’s theory [was] that Hunt killed Jones because
Hunt believed that Jones . . . t[old] [the police] that Hunt
killed Ransom. It is irrelevant whether Jones [] actually told
the police that Hunt was Ransom’s killer. The critical issue is
whether Hunt believed that Jones was telling the police that
Hunt was the killer.”). Further, Wilson cannot show the
suppressed evidence “could reasonably be taken to put the
whole case in such a different light as to undermine
confidence in the verdict.” Kyles v. Whitley, 514 U.S. 419,
435 (1995). “The police reports do not directly exonerate
Wilson or lessen the force of the corroborated and credible
testimony regarding admissions Wilson made about his
involvement in the[] [Middleton-Bradley] murders to [various
witnesses].” Wilson, 720 F. Supp. 2d at 65. 16
16
Wilson’s co-conspirators Bobby Capies and Kairi Kelliebrew
testified that Wilson told them of his involvement in the Middleton-
24
Even considering the cumulative effect of the multiple
alleged Brady violations, United States v. Lloyd, 71 F.3d 408,
412 (D.C. Cir. 1995), the untimely or suppressed materials are
insufficient to undermine our confidence in the jury’s verdict
or to overcome the Government’s evidence, which included,
inter alia, testimony from multiple witnesses that Wilson told
them of his involvement in the Middleton-Bradley murders.
V
We turn to the Defendants’ sentencing challenges. Both
Wilson and Bell were convicted of multiple counts of crack
distribution. They argue the sentences imposed by the district
court violated the Sixth Amendment and were procedurally
and substantively unreasonable. As the Defendants concede,
our prior decision in Jones, 744 F.3d 1362, directly forecloses
these sentencing arguments—save one claim related to a two-
point firearm enhancement applied to Bell. See Oral Arg. Tr.
at 1:08:42–09:53 (“We understand that this panel cannot
reverse the holding in Jones. We think it was wrongly
decided. . . . We would just ask that you would agree that we
should have rehearing . . . .”). 17
Bradley murders. Torran Scott, who had a daughter with Bradley,
also testified that Wilson told him “he didn’t know that [Bradley]
was in the truck.” J.A. 3320. Renee Cottingham, who unlike the
other three witnesses was not testifying pursuant to a deal with the
Government, testified that Wilson provided her with specific details
about the crime and that she observed Wilson repeatedly mumbling
to himself, “Why was she there? Why was she there? She
shouldn’t have been there.” J.A. 3339.
17
This Court’s prior decisions “bind the circuit unless and until
overturned by the court en banc or by Higher Authority.” Critical
25
A
In determining the Defendants’ sentences, the district
court attributed 1.5 kilograms of crack cocaine from the
conspiracy to each of the Defendants as relevant conduct, a
finding the court made by a preponderance of the evidence.
Because the jury acquitted the Defendants of the charged drug
conspiracies, the Defendants argue the district court’s
attributions violated the Sixth Amendment by increasing the
minimum and maximum terms of imprisonment based on
facts not found by a jury beyond a reasonable doubt.
The Sixth Amendment provides criminal defendants with
the right to a jury trial. “The right includes, . . . as its most
important element, the right to have the jury, rather than the
judge, reach the requisite finding of ‘guilty.’” Sullivan v.
Louisiana, 508 U.S. 275, 277 (1993). Acting in conjunction
with the Sixth Amendment is the protection of the Fifth
Amendment, which requires a jury “to find each element of
[a] crime beyond a reasonable doubt,” Patterson v. New York,
432 U.S. 197, 204 (1977), before a guilty verdict can properly
be rendered, United States v. Gaudin, 515 U.S. 506, 509–10
(1995).
That said, many facts that result in an increase to a
defendant’s sentence are not considered elements of a crime
and can be found by a sentencing judge relying on a
preponderance of the evidence standard. Rita v. United
States, 551 U.S. 338, 352 (2007) (“[A] sentencing court [may]
take account of factual matters not determined by a jury [] to
Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d
871, 876 (D.C. Cir. 1992) (internal quotation marks omitted).
26
increase the sentence in consequence.”). The scope of this
general sentencing principle is, of course, not unlimited.
Facts that increase the maximum, Apprendi v. New Jersey,
530 U.S. 466, 490 (2000), or mandatory minimum, Alleyne v.
United States, 133 S. Ct. 2151, 2155 (2013), statutory
sentence are considered elements that must be found by a jury
beyond a reasonable doubt. Nonetheless “long-standing
precedents of the Supreme Court and this Court establish that
a sentencing judge may consider uncharged or even acquitted
conduct in calculating an appropriate sentence, so long as that
conduct has been proved by a preponderance of the evidence
and the sentence does not exceed the statutory maximum for
the crime of conviction” or increase the statutory mandatory
minimum. United States v. Settles, 530 F.3d 920, 923 (D.C.
Cir. 2008).
The Defendants’ sentences fall within the statutory range,
rendering their constitutional argument unconvincing. They
first suggest the sentencing court ran afoul of Alleyne by using
the 1.5 kilograms of crack cocaine from the conspiracy to
sentence the Defendants pursuant to 21 U.S.C. §
841(b)(1)(A), which includes a higher mandatory minimum
sentence than subsections (B) or (C). See 21 U.S.C. §
841(b)(1)(A)–(C) (subsection (A) provides for a ten year
mandatory minimum, as opposed to five years for subsection
(B) and no mandatory minimum for subsection (C)). But
“there is no indication in the record that the district court
judge thought he had to impose a higher mandatory minimum
sentence as a result of finding [the Defendants] responsible
for a larger amount of cocaine.” United States v. Hernandez,
731 F.3d 666, 672 (7th Cir. 2013). The filed judgments make
clear the Defendants were sentenced pursuant to subsections
(B) and (C). See J.A. 1812, 2113–14. See also J.A. 3664,
3702 (sentencing judge identifying the appropriate sentencing
27
ranges, rather than the ranges that would be produced if he
had sentenced the Defendants pursuant to subsection (A)).
Even if the sentences fall within the statutory range, the
Defendants argue Alleyne prohibits any increase in the
defendant’s base offense level or upward departure from the
base offense level, where such an increase or departure is
based on facts found by a sentencing judge to a
preponderance of the evidence. Alleyne, however, dealt with
an increase to the statutory range—not increases to a
defendant’s range under the Sentencing Guidelines
(“Guidelines”). See Alleyne, 133 S. Ct. at 2161 n.2 (“Juries
must find any facts that increase [] the statutory maximum or
minimum . . . . Importantly, this is distinct from factfinding
used to guide judicial discretion in selecting a punishment
within limits fixed by law.”) (emphasis added) (internal
quotation marks and citations omitted). “We [] lack any basis
to reconsider the settled rule that enhancing a sentence within
the statutory range based on facts found by the judge, as
opposed to the jury, does not violate the Sixth Amendment.”
Jones, 744 F.3d at 1369. “[J]udicial fact-finding does ‘not
implicate the Sixth Amendment even if it yield[s] a sentence
above that based on a plea or verdict alone.’” Id. at 1370
(quoting United States v. Bras, 483 F.3d 103, 107 (D.C. Cir.
2007)).
B
The Defendants next challenge their sentences as
procedurally unreasonable. Among other things, they protest
the district court’s consideration of 1.5 kilograms of crack
cocaine from the acquitted conspiracy when calculating the
Defendants’ sentences. They argue crack cocaine distributed
through the acquitted conspiracy is not “relevant conduct”
where the Defendants’ convictions were for “street-level drug
28
dealing.” Brief for Joint Appellants Sentencing at 23, United
States v. Bell, No. 08-3037 (June 30, 2014). See generally
U.S.S.G. § 1B1.3(a) (relevant conduct). Yet in Jones we
affirmed drug distribution sentences imposed on three of the
Defendants’ co-conspirators, where the sentencing judge
attributed cocaine distributed through the course of the
acquitted conspiracy. 744 F.3d at 1368 (“‘[R]elevant
conduct’ includes acts that were part of the same course of
conduct or common scheme or plan as the offense of
conviction, and here, the district court specifically found that
appellants’ crack distribution offenses were part of a
‘common scheme’ with Congress Park Crew members, a
finding that we have already determined was not clearly
erroneous.”) (internal quotation marks and citations
omitted). 18
Relying on Justice Scalia’s partial concurrence in Rita,
551 U.S. at 375 (Scalia, J., concurring in part), the Defendants
next rehash their Sixth Amendment argument couched as a
distinct theory of procedural unreasonableness. They argue
the sentencing court misunderstood the scope of his
sentencing authority and misapplied the Guidelines. The
Defendants’ refrain is familiar: because the acquitted
conspiracy was not found by a jury beyond a reasonable
doubt, it was procedurally unreasonable for the sentencing
judge to consider it in calculating the Defendants’ base
18
The Defendants also raise an argument that there was insufficient
evidence to support an attribution of 1.5 kilograms of crack
cocaine. The specifics of their contentions are somewhat better
developed in a parallel argument they raise for substantive
unreasonableness, discussed infra Part V(C). To the extent this
procedural unreasonableness argument is distinct from the
Defendants’ substantive unreasonableness argument, it remains
irreconcilable with Jones. See 744 F.3d at 1366–68.
29
offense levels under the Guidelines. According to the
Defendants, the acquitted conspiracy could, at most, only be
considered as a section 3553 factor. “Whatever the merits of
Justice Scalia’s argument [in Rita], it is not the law.” Jones,
744 F.3d at 1369. A sentencing court may base a sentence on
acquitted conduct, “even when consideration of the acquitted
conduct multiplies a defendant’s sentence severalfold,” so
long as the sentence does not exceed the statutory maximum
and is based on conduct established by a preponderance of the
evidence. Id.
The Defendants’ final argument for procedural
unreasonableness relates to a two-point firearm enhancement
imposed on Bell. See U.S.S.G. § 2D1.1(b)(1). The
enhancement was imposed based on a loaded handgun found
hidden in Bell’s bedroom in proximity to other tools of the
narcotic trade. The search leading to the firearm occurred in
1996, during the lifetime of the acquitted crack conspiracy,
but Bell argues the enhancement can only be applied if a
firearm was present during an offense of conviction—i.e., if
the firearm was found during one of the drug distribution
counts of which he was convicted. Bell is mistaken. “The
applicability of a specific offense characteristic, such as
section 2D1.1(b)(1), depends on whether the conduct at issue
is ‘relevant’ to the offense of conviction,” United States v.
Pellegrini, 929 F.2d 55, 56 (2d Cir. 1991). “[T]he
enhancement is to be applied whenever a firearm is possessed
during conduct relevant to the offense of conviction,” United
States v. Smith, 127 F.3d 1388, 1390 (11th Cir. 1997), which
“includes acts ‘that were part of the same course of conduct or
common scheme or plan as the offense of conviction.’” Id.
(quoting U.S.S.G. § 1B1.3(a)(2)). It was not erroneous for the
sentencing judge to find the firearm was possessed during
conduct relevant to the offenses of conviction. The weapon
was found “hidden in a speaker . . . in proximity to other tools
30
of the narcotic trade,” J.A. 2627–28, and the judge found—by
a preponderance—that the life of the drug conspiracy
encompassed both the time of the search and the time of the
offenses of conviction.
C
The Defendants also contend their sentences were
substantively unreasonable, though—at times—their
arguments are mere variations of their constitutional or
procedural unreasonableness theories. For example, the
Defendants again argue the sentencing judge could not
attribute crack cocaine from the acquitted conspiracy to them,
as relevant conduct. This particular iteration of the
Defendants’ argument hinges on their belief that “[t]he only
reasonable interpretation of the [jury’s acquittal on
conspiracy] is that [the jury] believed either no conspiracy
existed or that Appellants were not part of the conspiracy.”
Brief for Joint Appellants Sentencing at 28. 19 But “an
acquittal in a criminal case does not preclude the Government
19
The Defendants assert this conclusion necessarily follows
because the jury purportedly made specific factual findings as to the
drug quantities attributable to Bell and Wilson as co-conspirators,
by acquitting them of conspiring to distribute at least 5 kilograms of
cocaine and 50 grams of crack cocaine, as well as the lesser
included offenses of conspiracy to distribute 500 grams of cocaine
and 50 grams of crack cocaine and conspiracy to distribute
detectable amounts of cocaine and crack cocaine. Yet “[a]n
acquittal [is] only [] an acknowledgment that the government failed
to prove an essential element of the offense beyond a reasonable
doubt.” United States v. Watts, 519 U.S. 148, 156 (1997). It does
not amount to a specific finding that no conspiracy existed or that
the Government would be unable to prove the Defendants’
participation in the conspiracy under a reduced burden of proof.
31
from relitigating an issue when it is presented in a subsequent
action governed by a lower standard of proof. . . . [A] jury’s
verdict of acquittal does not prevent the sentencing court from
considering conduct underlying the acquitted charge, so long
as that conduct has been proved by a preponderance of the
evidence.” United States v. Watts, 519 U.S. 148, 156 (1997).
The Defendants also argue it was substantively
unreasonable to attribute the distribution of 1.5 kilograms of
crack cocaine to them. The Defendants argue there was
insufficient evidence to support the quantities of crack
cocaine attributed by the judge, based on the evidence
presented of the quantities that Bell and Wilson personally
distributed. The sentencing judge’s attribution, however,
was—in the first instance—based upon whether crack cocaine
sales among all the conspirators exceeded 1.5 kilograms and
were reasonably foreseeable to the Defendants. J.A. 3623–24
(Bell), 20 3687–88 (Wilson). See also Jones, 744 F.3d at 1368
(permitting the attribution of crack cocaine from defendants’
coconspirators as relevant conduct); U.S.S.G. §
1B1.3(a)(1)(B) & cmt. 2 (conduct of coconspirators is
“relevant” in determining a defendant’s Guideline range
where he engages in jointly undertaken criminal activity and
the coconspirators’ conduct is reasonably foreseeable to the
defendant). This finding was supported by ample evidence.
See, e.g., J.A. 3621–24 (as to Bell, noting—in addition to
various other witness testimony—that the co-conspirators
who entered guilty pleas admitted to their accountability for
20
The sentencing judge made a secondary finding that Bell was
personally responsible for at least 1.5 kilograms of crack cocaine.
J.A. 3623. This finding was also adequately supported. See J.A.
3622–23.
32
over 1.5 kilograms of crack cocaine); J.A. 3689–91 (same, as
to Wilson).
The Defendants further protest that the Government
relied upon testimonial evidence, rather than physical or
documentary evidence. But there is no problem with the
Government relying on admissible testimony, so long as it is
sufficient—either alone or in combination with other
evidence—to satisfy the requisite burden of proof. See United
States v. Graham, 317 F.3d 262, 271 (D.C. Cir. 2003).
Moreover, contrary to the Defendants’ claims of vagueness
and inconsistency, the Government’s witnesses offered
specific information to support the quantities of cocaine
attributed to the Defendants based on the acquitted
conspiracy. Drug dealer Cedric “Conner . . . [testified to]
supplying an estimated quantity in excess of one kilo between
1999 and 2000, and [coconspirator Robert] Capies . . .
[admitted to] buying over 500 grams from 1992 to 2001.”
J.A. 3622. The Defendants challenge the credibility of these
witnesses. But, while evidence of their coconspirators’
disreputable character “may undercut the[ir] . . . credibility
generally, [it] do[es] not establish that it was implausible for
the district court to credit particular aspects of their testimony,
especially where, as here, the cooperators offered mutually
corroborative accounts.” 744 F.3d at 1367.
VI
For the foregoing reasons the district court is
Affirmed.
WILKINS, Circuit Judge, dissenting in part and concurring
in part: I join the Court’s opinion upholding Bell’s sentence.
I part ways with the majority, however, on Wilson’s
conviction. In my view, the District Court violated the Fifth
and Sixth Amendments by forcing Wilson to continue his
defense with replacement counsel who had been absent from
court during the earlier testimony of key government
witnesses. Because this error requires reversing Wilson’s
conviction and remanding his case for a new trial, I
respectfully dissent.
I.
The Supreme Court decided United States v. Cronic, 466
U.S. 648 (1984) and Strickland v. Washington, 466 U.S. 668(1984) on the same day. In doing so, the Court examined the
Sixth Amendment right to the effective assistance of counsel
with respect to two very distinct categories of asserted error.
Understanding the reasons for the separate paths is
fundamental to the analysis of the error asserted in this case.
In the first category of constitutional error, the defense
lawyer “deprive[s] a defendant of the right to effective
assistance, simply by failing to render ‘adequate legal
assistance.’” Strickland, 466 U.S. at 686 (quoting Cuyler v.
Sullivan, 446 U.S. 335, 344 (1980)). “[B]ecause we presume
that the lawyer is competent to provide the guiding hand that
the defendant needs, the burden rests on the accused to
demonstrate a constitutional violation.” Cronic, 466 U.S. at
658 (citation omitted); see also Strickland, 466 U.S. at 688
(discussing “presumption that counsel will fulfill the role in
the adversary process that the Amendment envisions”). To
prevail on this type of claim, the defendant must show that
counsel’s performance was objectively unreasonable, and
that, “but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S.
at 687-88, 694. Thus, the analysis hinges on an examination
2
of “how specific errors of counsel undermined the reliability
of the finding of guilt.” Cronic, 466 U.S. at 659 n.26 (citing
Strickland, 466 U.S. at 693-96).
The second category of Sixth Amendment error does not
examine specific errors of counsel at all. Rather, this error
transpires when “[t]here are . . . circumstances that are so
likely to prejudice the accused that the cost of litigating their
effect in a particular case is unjustified.” Id. at 658. In these
instances, the constitutional violation is shown “without
inquiry into counsel’s actual performance at trial,” id. at 662,
because “the surrounding circumstances made it so unlikely
that any lawyer could provide effective assistance that
ineffectiveness [i]s properly presumed without inquiry into
actual performance at trial,” id. at 661 (emphasis added).
Stated differently, the circumstances of this type of error are
such that “although counsel [was] available to assist the
accused during trial, the likelihood that any lawyer, even a
fully competent one, could provide effective assistance is so
small that a presumption of prejudice is appropriate without
inquiry into the actual conduct of the trial.” Id. at 659-60.
So how do we identify those circumstances “that are so
likely to prejudice the accused” that prejudice is presumed?
The Supreme Court provided several salient examples in both
Strickland and Cronic.
In Strickland, the Court observed that prejudice is
presumed where there is an “[a]ctual or constructive denial of
the assistance of counsel altogether.” 466 U.S. at 692.
Cronic agreed, explaining that prejudice is presumed where a
defendant was “denied counsel at a critical stage of his trial,”
whether actually or constructively. 466 U.S. at 659. The
Court also explained that, when counsel “entirely fails to
subject the prosecution’s case to meaningful adversarial
3
testing,” the adversary process is presumptively
unreliable. Id.
But in addition to these scenarios, Strickland explained
that prejudice is presumed where there have been “various
kinds of state interference with counsel’s assistance,” 466
U.S. at 692, because the “[g]overnment violates the right to
effective assistance when it interferes in certain ways with the
ability of counsel to make independent decisions about how to
conduct the defense,” id. at 686. Again, Cronic agreed,
explaining that prejudice is presumed where the defense was
“prevented from assisting the accused during a critical stage
of the proceeding.” 466 U.S. at 659 n.25. In so doing, both
Strickland and Cronic reaffirmed the long-established
principle that certain impediments to the defense are so grave
that they thwart the adversarial factfinding process at the heart
of our system of justice. These impediments can result from
actions of the trial court as well as those of the prosecutor.
When a trial court imposes serious obstacles to a defendant’s
ability to obtain the “guiding hand of counsel at every step in
the proceedings against him,” due process is denied. Brooks
v. Tennessee, 406 U.S. 605, 612 (1972) (quoting Powell v.
Alabama, 287 U.S. 45, 69 (1932)). This is because “[t]he
very premise of our adversary system of criminal justice is
that partisan advocacy on both sides of a case will best
promote the ultimate objective that the guilty be convicted
and the innocent go free.” Herring v. New York, 422 U.S.
853, 862 (1975).
In this case, forcing Wilson to finish the trial with a
lawyer who had missed several critical days of the
proceedings was such an impediment to the defense and
interference with counsel’s assistance that prejudice is
presumed. To understand why, we need to review the facts.
4
II.
As the majority explains, Wilson was one of six
defendants in a drug conspiracy trial that lasted ten months.
Four months into the government’s case, Wilson’s lead
counsel, Jenifer Wicks, suddenly took ill, and the District
Court initially announced its intent to grant Wilson’s motion
for a mistrial. However, the Government objected, and the
District Court changed course. The Government proposed
that Wilson’s second-chair counsel, Gary Proctor, be elevated
to take over his defense, and that the court could take a
continuance to allow Proctor to get up to speed. The District
Court acceded to this request and denied Wilson’s motion for
a mistrial. 1
1
The District Court refused to grant a mistrial solely on the ground
that appointing Proctor as replacement counsel, appointing a new
second-chair counsel, and recessing for sufficient time to allow
Wilson’s new defense team to prepare would be sufficient to
protect Wilson’s rights. Trial Tr. at 16,635-37, United States v.
Ball (D.D.C. June 27, 2007), ECF No. 1040. The District Court’s
determination therefore implicitly declined the government’s self-
serving invitation to speculate that Wicks would be “available in
some capacity” to consult with Proctor. Id. at 16,599. Thus, the
majority’s suggestion (based on the biased speculation by the trial
prosecutor) that Wicks might have been able to assist Wilson from
outside the courtroom after a two-week initial recovery – a
proposition for which there is no support – is wholly irrelevant to
the decision under review. Of course, it also ignores the fact that
the initial two weeks during which Wicks was undisputedly
forbidden from discussing work on doctor’s orders ended July 9,
the day the government resumed its case following a recess.
Proctor therefore could not have consulted with Wicks as of the
time he had to begin defending the remainder of the government’s
case.
5
Saying that Proctor needed to get up to speed is quite the
understatement. Proctor had tried only one other federal
criminal case (also as second-chair counsel), had no
familiarity with the RICO statute, and had only been admitted
to the bar for about five years. Defendant’s June 24, 2007
Trial Brief, United States v. Ball, No. 05-cr-100 (D.D.C. June
24, 2007), ECF No. 1016. He joined Wilson’s defense only a
week and a half before trial began, and continued to work on
other cases during the first four months of trial. His role on
Wilson’s defense was largely administrative; Wicks prepared
the trial strategy, interviewed witnesses, and consulted with
Wilson while Proctor made photocopies and handled phone
calls. Proctor cross-examined only one government witness
and met with Wilson independently only once before Wicks
took ill. Proctor was thus not merely second-chair counsel; he
was a part-time, relatively inexperienced, last-minute addition
second-chair counsel.
Because of his administrative duties in this case, as well
as his work on his other cases, Proctor was not present in
court for about a third of trial before Wicks’s illness. Proctor
missed the testimony of several witnesses who were critical to
the prosecution’s case against Wilson, including Torran Scott
and Renee Cottingham, two of the four witnesses who
inculpated Wilson in the murders of Sabrina Bradley and
Ronnie Middleton. See Trial Tr. at 11, United States v. Ball,
No. 05-cr-100 (D.D.C. June 27, 2007), ECF No. 1040.
Proctor was not in the courtroom to watch Scott tell the jury
that Wilson had admitted involvement in the shooting, and
that Wilson asked Scott to corroborate his alibi. Nor did
Proctor see Scott admit on cross examination that he failed to
inculpate Wilson until four years after the murders and two
days before pleading guilty as part of a deal with the
government. Proctor was not present when Cottingham told
the jury that Wilson confessed to her that he had committed
6
the murders while she unbraided his hair one evening.
Proctor did not see Wicks cross-examine Cottingham on her
belief that Wilson was involved in her brother’s homicide,
giving her strong incentive to implicate him in Middleton and
Bradley’s murders. Scott and Cottingham’s testimony, along
with the testimony of two co-conspirators who testified in
exchange for government leniency, was the only evidence the
government presented to connect Wilson with those murders.
See Maj. Op. at 23 n.16.
Proctor missed other significant parts of the prosecution
case as well. Proctor was not present during a large part of
the cross-examination of Damien Green. Green was a
government witness who had testified at length that Wilson
had robbed several men at gunpoint, threatened him with a
gun, shot at him, and even shot up a recreation center. See
Trial Tr. at 11,675-77, United States v. Ball, No. 05-cr-100
(May 17, 2007), ECF No. 942; Trial Tr. at 13,106-12, id.
(D.D.C. May 29, 2007), ECF No. 967; Trial Tr. at 13,786-88,
13,827-35, id. (D.D.C. May 31, 2007), ECF No. 978. On
cross, when Proctor was absent, other defense attorneys
questioned Green about his daily use of drugs and alcohol
throughout the period about which he had testified. Trial Tr.
at 13,913-22, id. (D.D.C. June 4, 2007), ECF No. 979.
Proctor was also absent during – and did not see the jury’s
reaction to – a forensic pathologist’s graphic testimony about
Middleton and Bradley’s deaths, during which the
government introduced into evidence autopsy photographs of
their gunshot wounds and their faces. Trial Tr. at 15,629-34,
15,645-69, id. (D.D.C. June 14, 2007), ECF No. 1010, 1012.
When Wicks left Wilson’s side, her accumulated
knowledge of the case left with her. In particular, Wilson
lost: (1) Wicks’s tactical and strategic consultations with
Wilson about the trial, (2) Wicks’s appraisal of witness
7
demeanor, and (3) Wicks’s assessment of the jury’s reaction
to the witness testimony and physical evidence introduced at
trial. In denying Wilson a mistrial and forcing him to
continue to verdict with the assistance of a lawyer who had
missed so much and who would not have this accumulated
knowledge, the District Court deprived Wilson of his right to
an attorney with the knowledge necessary to challenge
adequately the government’s evidence.
A.
The District Court did not consider the impact on
Wilson’s defense of losing Wicks’s work-product from her
consultations with Wilson, but Supreme Court precedent
makes clear the centrality of these consultations to the right to
assistance of counsel. Moreover, when a defendant is denied
the opportunity to consult with counsel at trial, prejudice to
the defense is presumed. In a series of cases reaffirmed in
Cronic, 466 U.S. at 659 n.25, the Supreme Court found
constitutional error based upon limitations on criminal
defendants’ ability to consult with their attorneys. In Geders
v. United States, the Court held that a trial court’s denial of
the defendant’s access to his attorney during a weekend trial
recess violated the right of effective assistance of counsel,
because it hampered counsel’s ability to discuss the
significance of the day’s evidence with the defendant. 425
U.S. 80, 88-89 (1976); see also Mudd v. United States, 798
F.2d 1509, 1510 (D.C. Cir. 1986) (holding that even an order
only barring the defendant from discussing his upcoming
testimony with his counsel – but not restricting any other
topic of discussion – during a trial recess violates the Sixth
Amendment and requires reversal without a showing of actual
prejudice). Similarly, in Brooks, the Court struck down a
Tennessee law that required a defendant to take the stand
before any other defense witnesses, because it inhibited the
8
“important tactical decision” of whether and when the
defendant would testify. 406 U.S. at 612. In short, “the Sixth
Amendment guarantees not just the right to have counsel, but
also the right to consult with counsel about important tactical
decisions,” to participate in those decisions, and to have one’s
counsel “obtain factual information crucial to making them.”
United States v. McLaughlin, 164 F.3d 1, 17 (D.C. Cir. 1998)
(Tatel, J., dissenting).
After Cronic, the Court confirmed that a trial court’s
denial of the defendant’s right to confer with his attorney
during trial recess “is not subject to the kind of prejudice
analysis that is appropriate in determining whether the quality
of a lawyer’s performance itself has been constitutionally
ineffective.” Perry v. Leeke, 488 U.S. 272, 280 (1989). As
this Court explained in Mudd, 798 F.2d at 1513, a rule that
requires the defendant to establish that he was prejudiced by
his inability to consult with counsel would require the
defendant to show “what he and counsel discussed, what they
were prevented from discussing, and how the order altered the
preparation of his defense,” and “[p]resumably the
government would then be free to question defendant and
counsel about the discussion that did take place, to see if
defendant nevertheless received adequate assistance.” Mudd,
798 F.2d at 1513. We stated then that we could not “accept a
rule whereby private discussions between counsel and client
could be exposed in order to let the government show that the
accused’s sixth amendment rights were not violated,” chilling
defendants’ ability to communicate freely with their lawyers.
Id. (citing Martin v. Lauer, 686 F.2d 24, 32 (D.C. Cir. 1982)).
Proctor represented, and the government did not dispute,
that while he was out of court attending to his other cases,
making copies and performing other administrative tasks (and
at one point even travelling to Ireland for a family funeral),
9
Wicks was in the courtroom every day discussing the
government’s evidence with Wilson and strategizing his
defense. The District Court corroborated Wilson’s lack of a
relationship with Proctor before Proctor was forced to take
over, urging Wilson to “take to heart” the need to
communicate with Proctor going forward. Trial Tr. at 16,639,
United States v. Ball (D.D.C. June 27, 2007), ECF No. 1040.
Had Wicks remained until the end of trial, her consultations
with Wilson undoubtedly would have guided her choices
about how to challenge later government witnesses, what
further investigation was needed, what witnesses to call in her
case-in-chief, and what to ask those witnesses. Proctor did
not observe much of the vital attorney-client consultation that
happens during trial while testimony is fresh, and it is
completely unrealistic to assume that he could reconstruct
those discussions months later based on a cold transcript.
Since Wicks was forbidden from any work for the fortnight
following her illness, it is beyond dispute that Proctor lacked
any access to these consultations in the two weeks he
prepared for the close of the government’s evidence. As for
the remainder of trial, the record contains no evidence
indicating anything other than that most, if not all, of these
consultations between Wilson and Wicks were irretrievably
lost to Proctor.
In reversing its prior decision to sever Wilson from the
trial, the District Court gave no consideration to the prospect
that moving forward would mean the loss of months’ worth of
Wilson’s consultations with Wicks. See id. at 16,636-39. But
the Constitution protects the defendant’s ability to consult
with counsel during trial because “ordinarily a defendant is
ill-equipped to understand and deal with the trial process
without a lawyer’s guidance.” Geders, 425 U.S. at 88.
Criminal defendants know the most about the facts of their
own case, but are typically not familiar with the rules of
10
evidence and lack the skill to present their own defense.
Powell, 287 U.S. at 68-69. Defense counsel must have access
to the information needed to challenge the government’s case.
The same constitutional error that flows from a restriction on
defendant-counsel communication also results from a court
order to continue trial after the knowledge and strategic
decisions built upon these communications are lost to the
defense. Forcing Wilson to move forward when the substance
of his consultations with counsel had been erased
fundamentally impaired the adversarial process. Spoliation of
the fruits of consultation is no different from denial of
consultation in the first place. Based on Geders, Perry v.
Leake, and Mudd, prejudice from such spoliation is presumed.
B.
The loss of Wicks’s appraisal of witness demeanor is a
separate highly prejudicial circumstance, because it impaired
Wilson’s right to present a defense, including the right to
challenge the credibility of government witnesses. See
Washington v. Texas, 388 U.S. 14, 19 (1967). The
government conceded at oral argument that witness credibility
is a critically important issue to trial success, Oral Arg. Tr. at
21:27-21:38, and that observing live testimony enhances
credibility determinations beyond what is possible from
merely reading a transcript, id. at 22:04-22:10. We afford
trial judges the greatest deference in their role as factfinders
precisely because only those who observe witness testimony
firsthand “can be aware of the variations in demeanor and
tone of voice that bear so heavily on the listener’s
understanding of and belief in what is said.” Anderson v. City
of Bessemer City, N.C., 470 U.S. 564, 575 (1985) (internal
citations omitted); see also, e.g., Ornelas v. United States, 517
U.S. 690, 701 (1996) (Scalia, J., dissenting) (probable cause
findings are reviewed deferentially because “[a]n appellate
11
court never has the . . . full benefit of [the district court’s]
hearing of the live testimony.”); Wainwright v. Witt, 469 U.S.
412, 429 (1985) (a trial judge’s “predominant function in
determining juror bias involves credibility findings whose
basis cannot be easily discerned from an appellate record”). It
can hardly be gainsaid that “[l]ive testimony enables the
finder of fact to see the witness’s physical reactions to
questions, to assess the witness’s demeanor, and to hear the
tone of the witness’s voice – matters that cannot be gleaned
from a written transcript.” United States v. Mejia, 69 F.3d
309, 315 (9th Cir. 1995) (internal citations omitted).
Even more importantly, the Sixth Amendment requires
that the factfinder observe witness examination first-hand.
The Confrontation Clause “commands . . . that reliability be
assessed in a particular manner: by testing in the crucible of
cross-examination,” Crawford v. Washington, 541 U.S. 36, 61
(2004), and entitles a criminal defendant to “both the
opportunity to cross-examine and the occasion for the jury to
weigh the demeanor of the witness,” Barber v. Page, 390 U.S.
719, 725 (1968). As Judge Learned Hand explained, witness
demeanor may prove decisive to the jury’s resolution of a
case:
[T]he carriage, behavior, bearing, manner and appearance
of a witness – in short, his “demeanor” – is a part of the
evidence. The words used are by no means all that we
rely on in making up our minds about the truth of a
question that arises in our ordinary affairs, and it is
abundantly settled that a jury is as little confined to them
as we are. They may, and indeed they should, take into
consideration the whole nexus of sense impressions
which they get from a witness. This we have again and
again declared, and have rested our affirmance of
findings of fact of a judge, or of a jury, on the hypothesis
12
that this part of the evidence may have turned the scale.
Moreover, such evidence may satisfy the tribunal, not
only that the witness’ testimony is not true, but that the
truth is the opposite of his story; for the denial of one,
who has a motive to deny, may be uttered with such
hesitation, discomfort, arrogance or defiance, as to give
assurance that he is fabricating, and that, if he is, there is
no alternative but to assume the truth of what he denies.
Dyer v. MacDougall, 201 F.2d 265, 268-69 (2d Cir. 1952)
(footnote omitted).
But unlike other forms of evidence, “[d]emeanor
evidence is not captured by the transcript; when the witness
steps down, it is gone forever.” United States v. Zeigler, 994
F.2d 845, 849 (D.C. Cir. 1993). Just as it is undoubtedly true
that, “since [witness demeanor] evidence has disappeared, it
will be impossible for an appellate court to say” whether the
factfinder was correct in relying on it, Dyer, 201 F.2d at 269,
any advocate hoping to challenge witness credibility based on
demeanor will be fundamentally handicapped if he did not
himself observe the witness testify. Since witness demeanor
may determine the jury’s verdict, an attorney must observe
the testimony in order to mount an effective defense.
When the District Court forced Proctor to take over
Wilson’s defense without having seen key government
witness testimony, it denied him the means to prepare his
client’s defense. It is folly to expect an attorney who was not
present at trial to “pick up the thread of the state’s case, pick
up on all the subtle nuances that are apparent only to those
actually in the courtroom during trial, read a cold transcript . .
. and go on to do an effective job on a criminal case.”
Minnesota v. Parson, 457 N.W.2d 261, 263 (Minn. Ct. App.
1990) (holding that trial court erred in allowing pro se
13
defendant’s standby counsel to leave courtroom during trial
after defendant refused his assistance). Few lawyers would
voluntarily enter into such a disadvantaged position. Indeed,
Proctor’s motion for a mistrial explicitly cited his fear of
violating his ethical duty to competently represent Wilson.
How can we uphold a conviction secured after such a fatal
blow to the defense’s ability to challenge the government’s
case?
C.
Wilson was further prejudiced because his lawyer missed
the reaction of the most important people – the factfinders –
to critical portions of the evidence. In Herring, a case
favorably cited by both Cronic and Strickland, the Court ruled
that the Sixth Amendment was violated because the
defendant’s lawyer was not permitted to make a summation in
a bench trial. 422 U.S. at 864. No prejudice needed be
shown. And it was immaterial that the trial judge – the
factfinder – said that he did not need to hear from the lawyer
to decide the credibility issues because “counsel’s argument
would not change his mind.” Id. at 860. The Court described
the case as involving the right “to participate fully and fairly
in the adversary fact-finding process,” id. at 858, because
“there will be cases where closing argument may correct a
premature misjudgment and avoid an otherwise erroneous
verdict,” id. at 863.
Any good trial lawyer knows to watch the jury’s reaction
to testimony as it is presented, because jurors’ responses can
inform strategic and tactical choices going forward. See HON.
RICHARD B. KLEIN, ROBERTO ARON, TRIAL COMMUNICATION
SKILLS § 46:4 (2d ed. 2014) (“During a court presentation one
should observe the jury’s response. . . . Not observing the
jury’s reaction is like walking down the street with your eyes
14
closed.”); Richard M. Rawdon, Listening: The Art of
Advocacy, 36 TRIAL 99, 101 (2000) (“By noting jurors’
reactions, you can alter your proof if necessary. . . . When you
conduct your cross, . . . you must observe the jury’s reaction
to your questions and the witness’s answers.”); Hon. Stephen
S. Trott, Words of Warning for Prosecutors Using Criminals
as Witnesses, 47 HASTINGS L.J. 1381, 1406 (1996). In
recognition of the fact that jurors’ reaction to testimony is
often key to understanding the ultimate verdict, appellate
courts defer to trial judges’ rulings that are informed by
observation of those responses. E.g., Palenkas v. Beaumont
Hosp., 443 N.W.2d 354, 356-57 (Mich. 1989) (determination
of whether jury’s verdict was “motivated by such
impermissible considerations as passion, bias, or anger is best
left to trial court because it observed jury reaction to
witnesses); Pennsylvania v. Fredericks, 340 A.2d 498, 504
(Pa. Super. Ct. 1975) (upholding declaration of mistrial
because trial court was in a “far better position” to weigh
whether jury would reach a verdict since it had “observed the
jury’s attentiveness and reaction to the evidence”);
Redevelopment Auth. of Bucks Cnty. v. Asta, A.2d 300, 303
(Pa. Commw. Ct. 1974). Perhaps the Eight Circuit summed it
up best in explaining why it deferred to a trial judge’s
determination that a jury’s damage award was the result of
passion or prejudice:
[W]e acknowledge that much of the evidence supporting
this inference consisted of the district court’s
observations of the jury’s general demeanor,
observations that do not necessarily lend themselves to
written expression. In other words, perhaps one just had
to be there.
Tedder v. Am. Railcar Indus., Inc., 739 F.3d 1104, 1112 (8th
Cir. 2014).
15
Wilson was denied an attorney who “had been there” to
observe the jury’s reaction to critical testimony that
inculpated his client in a double homicide. He was
consequently denied a lawyer capable of adjusting his case
and focusing his closing argument based on that jury reaction.
In this case, the Sixth Amendment mandated that Wilson have
an advocate who could effectively present an alternative view
of the evidence, and “no aspect of such advocacy could be
more important than the opportunity finally to marshal the
evidence for each side before submission of the case to
judgment.” Herring, 422 U.S. at 862. How could Wilson’s
counsel effectively “correct premature misjudgments” that the
jurors may have reached about the evidence, when, for much
of the case, he was not even present to see their initial
judgments?
***
As explained above, in Cronic and Strickland the
Supreme Court identified three scenarios in which prejudice is
presumed to result from the denial of the Sixth Amendment
right to assistance of counsel. Several of the Supreme Court’s
post-Cronic cases have dealt with whether counsel’s
performance so “fail[ed] to subject the prosecution’s case to
meaningful adversarial testing” that prejudice need not be
shown. See Bell v. Cone, 535 U.S. 685, 696-98 (2002)
(prejudice not presumed where defense counsel failed to
present mitigating evidence and waived closing argument in
penalty phase of capital case but delivered opening statement,
pointed to mitigating evidence already adduced at trial, and
successfully objected to government evidence); Smith v.
Robbins, 528 U.S. 259, 286-88 (2000) (prejudice not
presumed where failure consisted of attorney’s decision not to
file a merits brief on direct appeal). Likewise, the Court has
16
examined what constitutes actual or constructive absence of
counsel at a “critical stage,” Cronic, 466 U.S. at 659, of the
proceeding. See Wright v. Van Patten, 552 U.S. 120, 125
(2008) (counsel’s participation in plea hearing via telephone
was not subject to prejudice per se); Roe v. Flores-Ortega,
528 U.S. 470, 484 (2000) (counsel’s failure to timely file
appeal worked a complete denial of appellate counsel because
it “deprived respondent of the appellate proceeding
altogether”); Penson v. Ohio, 488 U.S. 75, 88 (1988) (denial
of counsel on appeal is subject to presumed prejudice). But
the Court has not had occasion to identify further examples of
prejudice per se that fall under the final category it identified
in Cronic and Strickland: the government or trial court’s
interference with counsel’s assistance to his or her client.
Our sister circuits, following the Supreme Court’s lead,
have adopted rules that certain other impairments of access to
counsel are per se prejudicial. For instance, the Second
Circuit concluded that representation by a disbarred attorney
is prejudicial per se. United States v. Novak, 903 F.2d 883,
890 (2d Cir. 1990). More relevant to the case at bar, a
number of our sister circuits have held even brief physical
absences of defense counsel from trial presumptively
prejudicial. The Sixth Circuit, for instance, overturned a
conviction obtained after a trial in which counsel was absent
for an afternoon of testimony that directly inculpated the
defendant, reasoning that “[i]t is difficult to perceive a more
critical stage of a trial than the taking of evidence on the
defendant’s guilt.” Green v. Arn, 809 F.2d 1257, 1263 (6th
Cir. 1987), vacated on other grounds, 484 U.S. 806 (1987),
reinstated, 839 F.2d 300 (6th Cir. 1988). The Fifth Circuit, in
United States v. Russell, 205 F.3d 768 (5th Cir. 2000),
reversed a conspiracy conviction even though the testimony
focused on the co-defendants, rather than the defendant,
during his counsel’s day-long absence from court.
17
These cases differ from the instant one only in the
physical presence of some lawyer at every stage of Wilson’s
trial. But see Burdine v. Johnson, 262 F.3d 336, 341 (5th Cir.
2001) (en banc) (overturning murder conviction after counsel,
though present, repeatedly dozed during the defendant’s trial).
Physical presence is important, since without it there will be
no one to object to prosecution evidence and confront the
government’s witnesses. But it is not the end of the inquiry.
Assessing witness demeanor, consulting with the defendant,
and observing the reaction of the jurors are as critical to a
criminal defense as cross-examination, and it is those
capacities, not the mere risk of “strategic blunders by the
defense,” Maj. Op. at 13, that are threatened by the majority’s
disposition. It is not enough that some defense lawyer be
present to object when necessary; that lawyer must also have
the knowledge necessary to carry forward the representation
through the defense case-in-chief and closing argument.
Nothing can substitute for observing and listening to live
testimony, watching the jurors, and consulting with the
defendant in preparing for cross-examination, shaping the
evidence the defense will present during its case-in-chief, and
structuring closing argument.
Neither the majority nor either party has found a case
with facts analogous to this one. The best the majority can
muster is United States v. Griffiths, 750 F.3d 237, 239 (2d Cir.
2014) (per curiam). But Griffiths is an apple to our orange.
First, the case involved a two-week trial on a three count
indictment for false statements, obstruction of justice and mail
fraud; serious charges no doubt, but far from the bulk,
complexity and seriousness of this case. Second, while
replacement counsel was brought in to present closing
arguments after the defense lawyer suffered a debilitating
stroke at the close of the evidence, such counsel had the aid of
the defense paralegal who had been present for the entire
18
trial. 2 Finally, and most significantly, the defendant in
Griffiths refused to consent to a mistrial, so this was not a
case where the alleged trial impairment was due to actions of
the government or the trial court, as it is here. 3 In line with
Griffiths, courts have declined to reverse midtrial substitutions
of counsel only where the circumstances ensured that an
incapacitated defense attorney’s knowledge of the case would
not be lost to replacement counsel. E.g., United States v.
Ortiz-Martinez, 1 F.3d 662, 667 (8th Cir. 1993) (attorney who
took ill was still present at trial to advise replacement
2
As explained above, despite the majority’s speculation that Wicks
had “some capacity to accept telephone calls” after her
hospitalization, Maj. Op. at 5, at the time the District Court denied
the mistrial there was no reasonable expectation that she would be
able to assist significantly in Wilson’s defense.
3
For that reason, any double jeopardy concern is a red herring on
our facts. Wilson himself moved for a mistrial, and the “general
rule is that the defendant's motion for, or consent to, a mistrial
removes any double jeopardy bar to reprosecution.” Oregon v.
Kennedy, 456 U.S. 667, 683 (1982). See also 2A CHARLES ALAN
WRIGHT & PETER J. HENNING, FEDERAL PRACTICE AND
PROCEDURE § 440 (4th ed. 2009). But if the circumstance were to
arise in the future where a defendant refused to consent to a mistrial
after his lawyer’s mid-trial incapacitation, I note that courts
regularly conclude that the “lengthy delay” required for
replacement counsel to prepare constitutes “manifest necessity” that
justifies declaring a mistrial without a double jeopardy bar to
retrial, even if the defendant objects to a mistrial. United States v.
Williams, 717 F.2d 473, 475 (9th Cir. 1983); see also United States
v. Tolliver, 937 F.2d 1183, 1188 (7th Cir. 1991); United States v.
Von Spivey, 895 F.2d 176, 178 (4th Cir. 1990); Hudson v. Rushen,
686 F.2d 826, 831 (9th Cir. 1982); United States v. Wayman, 510
F.2d 1020, 1028 (5th Cir. 1975). I know of no case in which
defense counsel’s incapacitating illness was not found to constitute
manifest necessity.
19
counsel); United States v. Sonnenschein, 565 F.2d 235, 235
(2d Cir. 1977) (new counsel had been prepared to try the case
from the beginning of trial).
III.
The majority fears that presuming prejudice in Wilson’s
case would “sweep virtually every mid-trial substitution under
Cronic’s blanket rule,” Maj. Op. at 14, but the Court confuses
analysis under Cronic with automatic reversal. Just because
all mid-trial substitutions where replacement counsel missed
earlier parts of trial should be analyzed under Cronic’s rubric
does not mean all substitutions violate the Sixth Amendment.
See Perry, 488 U.S. at 279-81 (affirming that “direct
governmental interference with the right to counsel” is
prejudicial per se, but finding no constitutional error in order
prohibiting defendant from conferring with his attorney
during a fifteen-minute break in his testimony); Mudd, 798
F.2d at 1514 (“We thus do not find that all orders restricting
the discussion of testimony constitute a violation, no matter
what their duration; . . . [w]hen these sixth amendment
violations occur, however, we agree with those circuits that
have applied a per se reversal rule.”). The Court need only
hold that, when defense counsel is incapacitated mid-trial
through no fault of the defendant, and no replacement
attorney is available who observed the testimony of key
government witnesses against the accused and participated in
material consultations with the defendant, the Constitution
requires a mistrial.
My colleagues reply that determining situations in which
prejudice is presumed with such a degree of specificity would
“replac[e] ‘case-by-case litigation over prejudice with case-
by-case litigation over prejudice per se.’” Maj. Op. at 15
(quoting Scarpa v. Dubois, 38 F.3d 1, 14 (1st Cir. 1994)).
20
The First Circuit opinion the majority cites for this
proposition arose in a completely different context: it dealt
with an ineffective assistance claim based on defense
counsel’s trial error, which the defendant argued was so
egregious that the court should presume prejudice. The
Scarpa court explicitly cautioned that “attorney error, even
when egregious, will almost always require analysis under
Strickland’s prejudice prong.” Scarpa, 38 F.3d at 14
(emphasis added). The Supreme Court later made precisely
the same point, explaining that, when it comes to defense
counsel performance, prejudice will only be presumed if
counsel “entirely fail[ed] to subject the prosecution’s case to
meaningful adversarial testing,” a distinction that “is not of
degree but of kind.” Bell, 535 U.S. at 697. As I explain
above, however, an impediment to the defense affirmatively
erected by the government’s objection to a mistrial is wholly
different from defense counsel blunder.
In addition, even on its own terms, Scarpa is
unconvincing. The First Circuit reasoned that it was
inappropriate to presume prejudice when the court must
examine the trial record to detect whether the error occurred.
Scarpa, 38 F.3d at 14 (“[O]nce it is necessary to examine the
trial record in order to evaluate counsel’s particular errors,
resort to a per se presumption is no longer justified by the
wish to avoid the cost of case-by-case litigation.”). Yet
reviewing the trial record is precisely must be done even in
cases where the application of prejudice per se is
unchallenged. See, e.g., Green, 809 F.2d at 1260-61
(analyzing large portions of trial transcript to determine that
counsel was absent during government witness testimony that
inculpated the defendant). And, contrary to the majority’s
exhortation not to frame the circumstances in which the Court
should presume prejudice too narrowly, the Supreme Court
has admonished us to define these situations with some
21
specificity. See Woods v. Donald, 135 S. Ct. 1372, 1377
(2015) (framing question as applicability of Cronic rule to
counsel’s absence during “testimony regarding codefendants’
actions”); Wright, 552 U.S. at 125 (“Our precedents do not
clearly hold that counsel’s participation by speakerphone
should be treated as a ‘complete denial of counsel,’ on par
with total absence.”).
Presumptive prejudice as described by Strickland and
Cronic is not an historical curio, kept in the reliquary cabinet
to be taken out and marveled at but never employed in future
cases, no matter how much they fit its pattern. Surely, if there
are cases in which prejudice should be presumed, this is one.
Wilson was convicted of Middleton and Bradley’s murders
solely based on the testimony of witnesses who claimed that
he had confessed his involvement to them; no eyewitnesses
testified and no physical evidence connected him to the crime.
Replacement counsel missed all of that and more, even
venturing to another continent during the trial, and prior
counsel was under doctor’s orders not to return to work.
Under those circumstances, no “lawyer, even a fully
competent one,” Cronic, 466 U.S. at 659-60, having missed
so much of the live testimony and the consultation with the
defendant about the proceedings, would be able “to
participate fully and fairly in the adversary factfinding
process” on the defendant’s behalf. Herring, 422 U.S. at 858.
Wilson had a right to counsel who “had been there” at all
critical stages to carry forward this defense at trial, and with
Wicks’ incapacitation, the prosecutors obtained a strategic
advantage that resulted in an uneven playing field. Under the
teachings of Strickland and Cronic, this was presumptively
prejudicial.
Affording Wilson a new trial would undoubtedly have
required the investment of additional judicial resources. It is
22
understandable that, four months into trial, the District Court
was loath to declare a mistrial, sever Wilson from his co-
defendants, and schedule a new trial against him at the
conclusion of the main event. But that is what the Sixth
Amendment and due process required. Because this
constitutional violation requires reversal, I would not reach
the other crimes evidence and Brady issues.
Accordingly, I dissent.