U.S. v. Harris

• Decision Date: 22 August 2007
• Docket Number: No. 06-4232.,No. 06-4233.,No. 06-4234.,06-4232.,06-4233.,06-4234.
• Citation: 498 F.3d 278
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Nakie HARRIS, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Richard Royal, Defendant-Appellant. United States Of America, Plaintiff-Appellee, v. Terrence Smith, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

498 F.3d 278

UNITED STATES of America, Plaintiff-Appellee, v. Nakie HARRIS, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Richard Royal, Defendant-Appellant. United States Of America, Plaintiff-Appellee, v. Terrence Smith, Defendant-Appellant.

No. 06-4232.

No. 06-4233.

No. 06-4234.

United States Court of Appeals, Fourth Circuit.

Argued: May 25, 2007.

Decided: August 22, 2007.

ARGUED:

Martin Gregory Bahl, Office of the Federal Public Defender, Baltimore, Maryland, for Appellants. Kwame Jangha Manley, Assistant United States Attorney, Office of the United States Attorney, Baltimore, Maryland, for Appellee.

ON BRIEF:

James Wyda, Federal Public Defender, Greenbelt, Maryland, Denise C. Barrett, Assistant Federal Public Defender,

Office of the Federal Public Defender, Baltimore, Maryland; Randolph Gregory, Sr., Baltimore, Maryland; Mary E. Davis, Washington, D.C., for Appellants. Rod J. Rosenstein, United States Attorney, A. David Copperthite, Assistant United States Attorney, Office of the United States Attorney, Baltimore, Maryland, for Appellee.

Before TRAXLER and KING, Circuit Judges, and T.S. ELLIS, III, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.

Affirmed in part and vacated and remanded in part by published opinion. Judge TRAXLER wrote the opinion, in which Judge KING and Senior Judge ELLIS joined.

OPINION

TRAXLER, Circuit Judge:

Nakie Harris, Richard Royal, and Terrence Smith (Appellants) appeal their convictions for several crimes relating to the firebombing of Edna McAbier's home to prevent her from continuing to contact law enforcement regarding the sale of illegal drugs in her area. Smith also appeals his sentence. We affirm Appellants' convictions but vacate Smith's sentence and remand for resentencing.

I.

On January 15, 2005, at about 1:30 a.m., McAbier was lying on the couch in her home when she heard several "thuds" on her roof. J.A. 97. Scared, she jumped up, grabbed her telephone, and walked toward her front window. As she approached the window, she could smell gasoline, and she realized what was happening: Gang members were firebombing her house.

At the time of the attack, McAbier was serving as president of the Harwood Community Association and had lived in the Baltimore, Maryland, community for more than 30 years. In the last several years, the neighborhood had declined as crime and drugs became increasingly prevalent. McAbier had begun emailing and telephoning Baltimore City Police concerning drug-related activity in her neighborhood. As a result of these communications, in 2003 McAbier began to suffer retaliation in various forms. Her door was spray painted, her steps urinated upon, and her flowers torn up. Subsequently, her car was scratched, drawn on with magic markers, and pelted with food. Her tires were slashed and "bitch" was scratched on the trunk of her car. Because of these events, the Baltimore City Police began sending officers to McAbier's house, bringing McAbier a reprieve that lasted until her home was firebombed.

On the night before the attack, Terrence Smith, the leader of a group of the "Bloods" gang, called a meeting at his house and announced that he wanted to bomb McAbier's house because McAbier was calling the police too much and interfering with the Bloods' drug dealing in that area. After the meeting, Andre Wilkins drove Brian Harrison, Cedric Bowman, Jackie Brewington, Harris,¹ Royal, and Isaac Smith (no relation to Terrence Smith) in his minivan to two different gas stations to purchase gasoline and lighters. At the second gas station, Royal exited the van, went to a bar across the street, and purchased six bottles of beer. Wilkins then drove the men to a house where they emptied the beer bottles. Harris proceeded to soak rags in the gasoline, pour gasoline into the bottles, twist the rags, and place them in the bottles. Wilkins had another person call the police and report a crime to direct them away from McAbier's home. After Wilkins received word that the call had been made, each of the other six men took a bottle. Harris and Isaac Smith went to the front of McAbier's home, and Royal, Bowman, Brewington, and Harrison went to the back. They lit their gasoline-filled bottles and threw them at McAbier's home, scorching its exterior, the outer landing, and the sidewalk. They then fled the scene.

Appellants were subsequently indicted for one count of conspiring to commit witness tampering, see 18 U.S.C.A. § 371 (West 2000), two substantive counts of witness tampering, see 18 U.S.C.A. § 1512(a)(1)(C), (a)(2)(C) (West 2000 & Supp.2007), one count of using a firearm during and in relation to a crime of violence, see 18 U.S.C.A. § 924(c) (West Supp.2007), one count of using fire or an explosive to commit a felony, see 18 U.S.C.A. § 844(h)(1) (West 2000), and one count of manufacturing a firearm, see 26 U.S.C.A. § 5861(f) (West 2002).

At trial, the government presented testimony from several witnesses to the events of the morning of the firebombing and the night before, including Wilkins, Brewington, and Isaac Smith. Royal and Harris moved unsuccessfully to sever their trial from Smith's when the government moved to introduce a DVD depicting Bloods gang members wearing gang colors and making gang hand signs and Smith speaking about the importance of not "snitching" to the police.

At the close of the government's evidence, Appellants moved for a judgment of acquittal on all counts. As is relevant here, they maintained that the government had failed to establish the federal nexus required to prove the witness tampering offenses because the government failed to show that McAbier had contacted federal authorities or was likely to do so. The government took the position that the federal nexus was established as a matter of law by virtue of the fact that drug trafficking is a federal offense. After much debate, the district court denied Appellants' motion and granted a motion by the government to reopen its case to present evidence regarding the likelihood that the crimes that McAbier complained about would have been referred to federal authorities. The district court denied a request by defense counsel for discovery, ruling that the "issue ha[d] been present the whole time" and that the government would not be presenting any expert testimony. J.A. 558. The court also ruled that it would not "allow contrary evidence in rebuttal" although it would allow cross-examination of the government's witness. J.A. 562. The government then presented the testimony of Special Agent Robert Brisolari of the Drug Enforcement Administration (DEA). Brisolari testified that the Baltimore City Police Department was the "biggest source" of their information and that it contributes the most officers to DEA task force groups. J.A. 576. He went on to testify that the DEA sometimes accepts cases that "are considered street level trafficking." J.A. 580.

Following closing arguments, the district court instructed the jury regarding the applicable law. With regard to the witness tampering counts, the court charged that to establish the necessary mens rea, the government must prove that Appellants "acted knowingly and with the unlawful intent to induce Mrs. McAbier to hinder, delay, or prevent the communication of information to a law enforcement officer of the United States." J.A. 708. Contrary to Appellants' argument that the government was required to show that McAbier had contacted federal authorities or was likely to do so, the court instructed:

In order to satisfy [the intent] element, it is not necessary for the government to prove that the defendant knew he was breaking any particular criminal law nor need the government prove that the defendant knew that the law enforcement officer is a federal law enforcement officer. What the government must prove is that there was a possibility or likelihood that the information being provided by Ms. McAbier about drug activities would be communicated to a law enforcement officer of the United States, irrespective of the governmental authority represented by the officers to whom she personally communicated information.

Also, I shall instruct you that drug trafficking is a federal offense. Again, however, it is not necessary for the government to prove the defendant knew that drug trafficking is a federal offense. The law does not require that a federal proceeding be pending at the time or even that it was about to be initiated when the attempted action, threat, intimidation or corrupt persuasion was made, nor does the law require that the recipient of the intimidation must be involved in an ongoing federal investigation or in an investigation of a federal crime.

J.A. 708-09 (emphasis added).

Appellants were subsequently convicted on all counts. Harris and Royal were each sentenced to 720 months' imprisonment. Smith received a 960-month sentence.

II.

Appellants first challenge the validity of their witness tampering convictions.²

The code sections that Appellants were convicted of violating are part of the Victim and Witness Protection Act of 1982, as amended, which Congress enacted for three reasons: to protect the critical role that victims of crimes and witnesses to crimes play in the justice system, to protect those victims and witnesses both from criminals and from the negative effects of participating in the justice system, and to provide a model for state and local legislation. See Victim and Witness Protection Act of 1982 (VWPA), Pub.L. 97-291 § 2, 96 Stat. 1248, 1248-49 (1982) (Congressional Findings and Purposes) (codified as amended at 18 U.S.C.A. § 1512-15 (West 2000 & Supp.2007)); see also 21st Century Department of Justice Appropriations Authorization Act, Pub.L. 107-273 § 3001, 116 Stat. 1758, 1803-04 (2002) (amending VWPA to add § 1512(a)(2) and redesignate former (a)(2) as (a)(3)). Appellants were convicted of one count of violating § 1512(a)(1)(C)...