Francis v. United States
| Decision Date | 12 August 2021 |
| Docket Number | No. 18-CF-88,18-CF-88 |
| Citation | 256 A.3d 220 |
| Parties | George FRANCIS, Appellant, v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
Peter H. Meyers, Washington, with whom Joseph Virgilio was on the brief, for appellant.
Kathleen W. Gibbons, Assistant United States Attorney, with whom Jessie K. Liu, United States Attorney at the time the brief was filed, and Elizabeth Trosman, John P. Mannarino, Kenya Davis, and Marisa West, Assistant United States Attorneys, were on the brief, for appellee.
Before Glickman and Beckwith, Associate Judges, and Ferren, Senior Judge.
Appellant George Francis challenges his convictions for contempt,1 obstruction of justice,2 and conspiracy to obstruct justice.3 For the following reasons, we affirm.
On the evening of February 19, 2014, seventeen-year-old A.M. called police and reported that an unknown man had assaulted and robbed her shortly after 6 p.m. in an alley off Georgia Avenue, N.W., while another man stood watch. Appellant and his friend Robert Turner were identified as suspects from video surveillance footage showing them near the alley at about 6:15 p.m.4 In subsequent testimony before a grand jury, Mr. Turner admitted that he and appellant were at the alley and that appellant had attacked A.M. there. He also admitted to having participated in manufacturing a false alibi for appellant.
The grand jury eventually returned a six-count indictment against appellant. The first three counts charged him with crimes of violence against A.M., namely assault with intent to commit first degree sexual abuse, kidnapping, and robbery. The other three counts charged appellant with offenses committed after the assault on A.M., namely criminal contempt, obstruction of justice, and conspiracy to obstruct justice. At trial, the jury acquitted appellant of the robbery and hung on the assault and kidnapping charges. It found appellant guilty of contempt and the obstruction charges.
The charges of conviction allegedly arose from an overture to A.M. on appellant's behalf after he was arrested, in violation of a court "stay away" order, and the creation of a false alibi defense for appellant.
On April 19, 2014, at appellant's presentment hearing, the trial court granted the government's request for a stay away order. In bold and all-capital letters, the order required appellant "to have no contact" with A.M. "by any means whatsoever" and "not [to] communicate or even attempt to communicate" with A.M. "either directly or through any other person (except through your lawyer)." The order warned that any violation could result in appellant's prosecution for contempt of court, and other consequences. At some point, appellant signed the order. We say "at some point," because the order was not dated (a point of contention in this appeal).5
On April 30, as A.M. testified at trial, a classmate of hers, Brice-Aime Tengen, approached her at school with a message from appellant. According to A.M., Mr. Tengen said appellant "just wants me to tell you that he's not guilty and he wants [you] to talk to his lawyer." A.M. refused to do so. Mr. Tengen testified that it was A.M., not he, who initiated the conversation, and he denied that appellant or anyone else had asked him to discuss appellant's case with her. But the government introduced an April 30 text-message conversation between appellant and Mr. Tengen that contradicted Mr. Tengen. In the conversation, appellant asked Mr. Tengen, "Aye [sic ] you talked to that girl yet yung[?]" [Sic ] Mr. Tengen responded, "What you want me to tell her?" Appellant answered, "Yea explain to her that they blaming the wrong person and ask if she can talk to my lawyer." Appellant then asked for "her first and last name" so he could be sure Mr. Tengen was talking to "the right person." Mr. Tengen replied with A.M.’s full name and reported to appellant that he was "with her right now." Eventually, after Mr. Tengen indicated that A.M. was unreceptive, appellant told Mr. Tengen, "Nevermind [sic ] don't ask her nothing cuz this not going anywhere." Appellant also said, "I'm not even supposed to be asking you to talk to her cuz they might lock me up for it."
At trial, appellant objected to the admission in evidence of a certified copy of the stay away order, on the ground that it was not dated. In overruling that objection, the judge acknowledged that the absence of a date on the order was "odd," but took judicial notice that the Superior Court case docket showed that the stay order was entered on April 19, 2014.
Appellant maintained in his testimony at trial that at the time of A.M.’s assault, around 6:15 p.m. on February 19, he was watching Mr. Turner coach a recreational basketball team at Riggs LaSalle Recreation Center ("Riggs"). The evidence appellant offered in support of this alibi defense included a series of text messages to and from appellant on February 19, and an Instagram photo purportedly taken of him on that evening.
At 4:26 p.m. on February 19, Mr. Turner texted appellant that he would be coaching games at Riggs at 6:00 p.m. and 7:40 p.m. that evening. Appellant responded at 4:27 p.m. that he would "prolly come meet" him. At 5:38 p.m., appellant texted another friend, "I'm bouta head up [to] Riggs to watch Rob [i.e., Mr. Turner] coach." The message log also shows that Mr. Turner called appellant at 5:44 p.m.
The Instagram photograph was a picture of someone's feet in basketball shoes on a basketball court. Appellant maintained the photo was of him and was taken on February 19 when he was at the Riggs Road basketball court that night.
On June 17, 2014, Mr. Turner testified before the grand jury. He previously had told the prosecutor that he, appellant, Mr. Tengen, and their friend Robert Price were playing basketball at "Riggs Park" when A.M. was assaulted. He also had said they took a photo of "some shoes, Nikes," that night and posted it on Instagram. Before the grand jury, however, Mr. Turner admitted that was all a "bogus story." He testified that Mr. Price came up with the alibi for appellant, and that he and appellant agreed to go along with it. He also admitted that he told the prosecutor "the wrong date" for the photograph; it was not taken the night of the assault.
In his testimony at trial, Mr. Turner disavowed his admissions in the grand jury. He claimed the actual "bogus story" was that appellant assaulted A.M., and "the truth" was that he and appellant were playing basketball that night at the time of the assault. The government impeached Mr. Turner with his grand jury testimony. Despite his disavowal of it, Mr. Turner acknowledged that he, Robert Price, and appellant "had an agreement that you were supposed to testify in grand jury that you were at the LaSalle Recreation Center on Riggs Road [sic ]." He said that when Mr. Price proposed the basketball story, appellant's "reaction was to agree to go along with it." The government also presented testimony from a detective that the Instagram photo actually was taken on February 5 (two weeks before the assault on A.M.).
Count 4 of the indictment charged appellant with criminal contempt for violating the stay away order "on or about April 30, 2014" by "asking another individual to make contact with A.M."6
For agreeing with Mr. Turner and Mr. Price to present a false alibi, Count 6 of the indictment charged appellant with conspiring with two unindicted co-conspirators "[b]etween on or about March 24, 2014 and on or about May 15, 2014," to obstruct justice.7
The fifth count of the indictment charged appellant with obstruction of justice. The count repeats the language of the obstruction statute but does not include a factual allegation of the manner in which appellant allegedly committed the offense. Count 5 states only that:
On or about April 30, 2014, within the District of Columbia, George Francis did corruptly and by threat of force obstruct, impede or endeavor to obstruct and impede the due administration of justice in any official proceeding. (Obstructing Justice (Due Administration of Justice) in violation of 22 D.C. Code, Section 722(a)(6) (2001 ed.)).
In the proceedings below, the prosecutor appeared to evince some confusion or uncertainty as to the factual underpinnings of this charge. At a pretrial conference, the prosecutor noted that counts 4 and 5 alleged the same offense date of (on or about) April 30, 2014, while count 6 alleged a conspiracy between March 24 through May 14, 2014, and that those were the dates to be used in listing the counts for the jury on the verdict form.8 And during trial, in a discussion outside the jury's hearing concerning the admissibility of the text messages between appellant and Mr. Tengen, the prosecutor told the judge that "[t]hese text messages go to the contempt charge and also the obstruction of justice charge."9
The following day, however, on November 14, 2017, the prosecutor told the jury in closing argument that appellant "committed obstruction of justice when he and his friends got together and agreed to concoct a story about where they were on February 19, 2014 using that Instagram photograph that's in evidence of those shoes." The prosecutor described the Instagram photo as "the picture that sets up the conspiracy" and "the picture that sets up the obstruction." The prosecutor did not argue that the messages to Mr. Tengen or the overture to A.M. on April 30 constituted the charged obstruction of justice. Nor did the prosecutor argue that they were overt acts in furtherance of the conspiracy to obstruct justice. In response, appellant's counsel did not dispute that the obstruction of justice charge was based on the allegedly false alibi and the Instagram photo, and he framed his argument for an acquittal on that understanding.10 When he addressed Mr. Tengen's contact with A.M. on appellant's behalf, he did not even mention...
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In re Moore
...must prove not only that the defendant violated the order, but also that he comprehended the provision he violated. Francis v. United States , 256 A.3d 220, 228 (D.C. 2021) ("A defendant willfully disobeys a court order when he understands the order and intentionally commits an act that vio......
- Mejia-Cortez v. United States