Abed v. United States
| Citation | 278 A.3d 114 |
| Decision Date | 14 July 2022 |
| Docket Number | 20-CF-223 |
| Parties | Zaid R. ABED, Appellant, v. UNITED STATES, Appellee. |
| Court | Court of Appeals of Columbia District |
Gregory M. Lipper for appellant.
David B. Goodhand, Assistant United States Attorney, with whom Channing D. Phillips, Acting United States Attorney at the time the brief was filed, and Elizabeth Trosman and Angela N. Buckner, Assistant United States Attorneys, were on the brief, for appellee.
Before Glickman and Beckwith, Associate Judges, and Thompson, Senior Judge.
Following a bench trial, appellant Zaid Abed was convicted of carrying a pistol without a license1 ("CPWL"), unlawful possession of a firearm2 ("UF"), and unlawful possession of ammunition3 ("UA"). He appeals his convictions, arguing that (1) the government offered no evidence to prove his lack of license or registration during its case in chief, such that his motion for judgment of acquittal ("MJOA") should have been granted; (2) in light of the trial judge's comments at the close of evidence, the convictions were barred by the Double Jeopardy and Due Process Clauses; and (3) the convictions were preempted by the Law Enforcement Officers Safety Act ("LEOSA").4 For the following reasons, we affirm.
The trial court heard evidence on October 7, 2019, and on November 26, 2019. The evidence established that during the early morning hours of November 19, 2017, appellant received a phone call from his girlfriend, Allison Griggs, asking for a ride home from a friend's apartment located on Minnesota Avenue, S.E., in the District of Columbia. Appellant, an off-duty Prince George's County, Maryland, police officer, had been at dinner with friends in Arlington, Virginia, where, according to his trial testimony, he only took a few sips of a cranberry-vodka cocktail with his dinner. Griggs had also been out with a group of friends — Stephanie Coronado, Glen Higgins, and Mustafa Briggs — and each of them was "pretty drunk" by the time Griggs called appellant. Griggs and her friends had taken a taxi to Coronado's apartment, and Griggs and Higgins (who was drunk to the point of "stumbling") had helped Coronado into her apartment and then gone back outside to retrieve Briggs (who was "so inebriated that he couldn't walk"). The group had accidentally locked themselves out of Coronado's apartment building, so the three of them were sitting on the steps outside the building when appellant arrived.
Appellant was driven to Coronado's home by his friend "Jimmy." Appellant got out of the car and approached Coronado's building alone. At the time, appellant had his service firearm on him. Security camera footage admitted and played at trial depicts appellant, wearing a buttoned suit jacket, walking toward the apartment building with the handle of his firearm, which was tucked into a waistband holster on his right hip, resting on the outside of the jacket and plainly visible as he approached the group. Appellant came to a stop in front of the group, unbuttoned his jacket, and stood with his hands in his pockets and with his jacket spread open, continuing to expose the holstered firearm.5 Higgins — the only one of the group of friends who was called to testify at trial — testified that he observed appellant approach with a "gun on his hip," which led him to ask appellant whether he "had an open carry or something like that."
Appellant then spoke with Higgins, Briggs, and Griggs. The conversation escalated to an argument in which Higgins, according to his testimony, told appellant that he was sleeping with Griggs, a statement he made in order to "antagonize" appellant.6 Briggs then stood up, walked towards appellant, and got "in his face," and appellant pushed him away. Appellant testified that he saw Briggs reach into his waistband as he told appellant, "I'll f***ing shoot you." Appellant explained that his police training, which taught him that people often keep weapons in their waistbands, "kicked in," so he pulled out his weapon and shouted, "police, show me your hands." Higgins testified that appellant pulled out his gun, pointed it at Briggs with his finger not on the trigger, and then after "a second or two," reholstered it.
After the weapon was reholstered, appellant, Higgins, and Briggs engaged in a physical altercation, with Higgins and Briggs repeatedly punching appellant. Appellant's friend Jimmy came to help appellant, and the two of them eventually separated from the group, got into Jimmy's car, and drove away. At some point after they left, appellant realized that he had lost his weapon in the altercation, so he called 911 to report the lost weapon. The 911 dispatcher told him that police officers had already arrived at Coronado's apartment building and instructed him to return there. Appellant did as instructed and, once back at the apartment building, spoke to Metropolitan Police Department Detective Lockett and Officer Herring.
Detective Lockett testified that appellant had "appeared to be inebriated" based on his "pattern of speech," including "rambl[ing] on." Officer Herring testified that appellant's walk was not a "steady gait," his speech was "somewhat slurred," and his odor was "consistent with an alcoholic beverage emanating from his person." Neither officer performed any tests to ascertain appellant's sobriety or blood-alcohol level.
Appellant was arrested and indicted on ten counts: three counts of assault with a dangerous weapon ("ADW," counts one, three, and five); three counts of possession of a firearm during a crime of violence ("PFCV," counts two, four, and six); one count of threatening to injure and kidnap another person (count seven); and one count each of CPWL (count eight), UF (count nine), and UA (count ten).
The parties stipulated during the bench trial that appellant was off duty and had his service firearm, magazine, and ammunition on him at the time of the incident. The stipulation did not address, however, whether appellant was licensed to carry a firearm in the District of Columbia or whether his firearm was registered in the District, and no testimony or documentary evidence was presented during the government's case in chief regarding whether appellant had a license to carry his firearm in the District or had registered it in the District. Once the government rested its case, appellant moved for a judgment of acquittal on counts eight, nine, and ten. He did not assert that there was a lack of evidence regarding his firearm license or registration status but argued that he was protected from prosecution on those counts by LEOSA, which provides in relevant part:
Notwithstanding any other provision of the law of any State or any political subdivision thereof, an individual who is a qualified law enforcement officer [and is "not under the influence of alcohol or another intoxicating or hallucinatory drug or substance"] and who is carrying the identification required by subsection (d) [] may carry a concealed firearm that has been shipped or transported in interstate or foreign commerce ....
18 U.S.C. § 926B(a), (c)(5), and (d) ; see also 18 U.S.C. § 926C (). The government argued that LEOSA did not shield appellant from prosecution because his weapon was not concealed and because, as shown by the testimony of Officers Lockett and Herring, he was "under the influence of alcohol."
Appellant also moved for a judgment of acquittal on count seven, arguing that no evidence had been presented that he had threatened to injure or kidnap anyone, and on counts one through six, arguing that he had acted in self-defense. The court granted the motion as to count seven but denied it as to all the other counts, reasoning that there was enough evidence, viewed in the light most favorable to the government, to support them.
Appellant moved forward with his defense case, during which he testified in his own defense. On cross-examination, the following exchange occurred between the prosecutor and appellant:
After closing arguments on November 27, 2019, the trial court began to issue its findings, starting with a summary of the facts of the case and remarking, "There's so much we don't know." Noting that appellant "was at the bar in Arlington for four-and-a-half hours," the court expressed skepticism that appellant had "only had two sips of a drink" and found that appellant "probably had more to drink than that." But the court also found that "it was reasonable for [appellant] to pull out his gun because he was in imminent danger of harm to him[self]," and therefore, found appellant not guilty on counts one through six.7
As for count eight (CPWL), the court remarked that it was "at a loss" because it did not "think there[ was] enough in the record for [the court] to make a ruling on that," but it was "just not sure." The court decided to give the parties a week to brief the issue of whether LEOSA applied. The court then had the following exchange with the prosecutor (Ms. Buckner) regarding counts nine and ten:
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