U.S. v. Deandre Laron Wash.

• Citation: 653 F.3d 1251
• Decision Date: 09 August 2011
• Docket Number: No. 10–7013.,10–7013.
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Deandre Laron WASHINGTON, a/k/a Monster, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

653 F.3d 1251

UNITED STATES of America, Plaintiff–Appellee,

v.Deandre Laron WASHINGTON, a/k/a Monster, Defendant–Appellant.

No. 10–7013.

United States Court of Appeals, Tenth Circuit.

Aug. 9, 2011.

Robert A. Ridenour, Assistant Public Defender (Selim K. Fiagome, Assistant Public Defender; Barry L. Derryberry, Research and Writing Specialist, with him on the briefs), Office of the Federal Public Defender, Northern and Eastern Districts of Oklahoma, Tulsa, OK, for Defendant–Appellant.Ryan Roberts, Assistant United States Attorney (Mark F. Green, United States Attorney; Linda A. Epperley, Assistant United States Attorney, with him on the brief), Office of the United States Attorney, Eastern District of Oklahoma, Muskogee, OK, for Plaintiff–Appellee.Before O'BRIEN, SEYMOUR, and HOLMES, Circuit Judges.HOLMES, Circuit Judge.

Following a jury trial, Defendant–Appellant Deandre Laron Washington was convicted of one count of witness tampering, in violation of 18 U.S.C. §§ 1512(a)(1)(A) and 2, and sentenced to 360 months in prison. The conviction stemmed from Mr. Washington's alleged part in a murder-for-hire scheme wherein he was hired by Ronald Irving to kill a local law enforcement officer prior to that officer testifying in a drug case against Mr. Irving.¹ Mr. Washington now appeals his conviction, raising four claims: (1) the indictment failed to charge a crime; (2) the indictment was duplicitous; (3) there was insufficient evidence introduced at trial to support his conviction; and (4) the district court abused its discretion in excluding the testimony of a defense witness who was present in the courtroom during trial in violation of the Rule of Sequestration. Exercising jurisdiction under 28 U.S.C. § 1291, we reject these challenges and affirm Mr. Washington's conviction.

BACKGROUND

In February 2009, Lieutenant Bryan Stark—the head of the Muskogee Police Department's Special Investigations Unit (“SIU”)—received a handwritten note from a Muskogee County Jail inmate named Durrell Collins, which indicated that someone was trying to have him killed. The note read, in part: “I have someone in this jail trying to pay a guy I know out of Tulsa to have you killed because of the recent bust you did[.] I have the note he sent me askin [sic] me to set it up for 50,000.” R., Vol. I, at 41 (Resp. in Opp'n to Mot. to Dismiss Indictment, filed Apr. 28, 2009) (internal quotation marks omitted). Mr. Collins was subsequently interviewed, and he told the law enforcement authorities that he had been contacted by Ronald Irving, a local drug dealer, about potentially arranging a “hit” on Lt. Stark. R., Vol. II, at 295–97 (Trial Tr., dated July 20–22, 2009). Mr. Irving, a frequent target of SIU investigations, had recently been incarcerated as a result of a narcotics sting orchestrated by Lt. Stark earlier that month (i.e., in February).

According to Mr. Collins, Mr. Irving first hatched this murder-for-hire plot in 2006, when he told a group of people at a party that he would pay $50,000 to anyone who would kill Lt. Stark.² At that time, Mr. Collins, who was also at the party, indicated that he knew someone—namely, Mr. Washington—who might be willing to do this, but nothing ever materialized following the 2006 conversation. However, while they were both in jail in February 2009, Mr. Irving sent a note to Mr. Collins suggesting that they move forward with the plan.

Mr. Collins then spoke directly to Mr. Irving regarding the plan through cell phones that had been smuggled into the jail. The cell phones were in the possession of Milton Warrior and Sean Warrior, cousin inmates who also were housed in the Muskogee County Jail. Sean Warrior was Mr. Irving's cell mate, and Milton Warrior was housed near Mr. Collins. “Milton Warrior called ... Sean Warrior [on his cell phone] and got Ronald Irving on the phone[,] and [then Milton Warrior] called [Mr. Collins] into his cell [so he could] talk [ ] to Ron Irving.” Id. at 303. According to Mr. Collins, Mr. Irving asked him if he was “still cool on—you know what I'm talking about on Starks [sic]?” Id. When Mr. Collins responded that he was on board, Mr. Irving asked him “what [he] needed to do to bond out [of jail].” Id. at 303–04. Mr. Collins then contacted law enforcement through the letter to Lt. Stark.

At the behest of federal investigators, Mr. Collins agreed to go along with Mr. Irving's plan. Shortly thereafter, he was bonded out of jail using money supplied by Mr. Irving. Once out, Mr. Collins contacted Mr. Washington. The two met for the first time on March 9, 2009, to discuss the details of the intended assassination. At that meeting, Mr. Collins was wearing an audio-visual recording devise provided by the FBI. With reference to Lt. Stark, Mr. Collins told Mr. Washington that “you got to lay the nigger down, be known.” Id. at 49. Mr. Washington responded: “I'm not going to sit there and wound the nigger, shit. Damn, there's 25,000 on the line. I'm going to square him up. Shit, straight lace.” Id. at 50. Mr. Washington made several other statements reiterating his intent to kill Lt. Stark during the March 9 conversation, including that he was “[g]onna ride down there [i.e., to Muskogee] and ... gonna boom him and come on back, nigga straight lace nigga. Shoot his ass up.” Gov't Ex. 36 at 8 (Tr., Audio Recording of Mar. 9, 2009 Meeting).

Mr. Washington ultimately agreed to travel down to Muskogee with Mr. Collins on March 11, 2009, to kill Lt. Stark. The plan was for Mr. Collins to acquire a gun upon their arrival in Muskogee, and for Mr. Washington to do the actual shooting later that same day.³ The FBI wired Mr. Collins with an audio-visual recording device prior to his departure for Muskogee and told him what to do when the arrest took place. As Mr. Collins and Mr. Washington were en route, they were stopped by the Oklahoma Highway Patrol as their vehicle crossed over the Arkansas River Bridge and entered into Muskogee. Mr. Washington was placed under arrest, and the ensuing search of his person revealed that he was carrying a pair of surgical exam gloves in his shirt pocket. No weapon of any kind was recovered.

Mr. Washington was subsequently indicted, along with Mr. Irving, on one count of tampering with a witness, in violation of 18 U.S.C. §§ 1512(a)(1)(A) and 2.⁴ Specifically, the indictment charged that Mr. Washington “did attempt to kill Lieutenant Bryan Stark by conspiring to shoot him with the intent to prevent the attendance or testimony of Lieutenant Bryan Stark in federal court proceedings against [Mr. Irving].” R., Vol. I, at 24 (Indictment, filed Mar. 18, 2009).

Mr. Washington thereafter moved to dismiss the indictment, arguing, inter alia, that the charge was duplicitous. See id. at 30–31 (Mot. to Dismiss Indictment, filed Apr. 23, 2009) (arguing that the indictment “alleged two discrete crimes[:] Conspiracy and Attempt, both under the rubric of Tampering with a Witness”; “[t]he infirmity is termed duplicity”). The government countered the claim of duplicity by suggesting that the use of the term “conspiring” in the indictment did not implicate the separate and discrete crime of conspiracy, but rather was used in an everyday, non-technical sense “to describe the manner in which both co-defendants attempted to kill Lt. Stark.” Id. at 45 (Resp. in Opp'n to Mot. to Dismiss Indictment, filed Apr. 28, 2009). In particular, the government equated the term “conspiring” to “similar language such as ‘scheming’, ‘planning’, ‘colluding’, ‘plotting’ or ‘negotiating.’ ” Id. In ruling on the motion, the district court admonished the government for using potentially confusing language, but nevertheless denied Mr. Washington's motion to dismiss the indictment, stating that it “d [id] not believe that the Government intended to charge the separate crime of conspiracy” in addition to the attempt charge. Id. at 51 (Order, filed May 6, 2009).

Mr. Washington and Mr. Irving were tried together. At trial, the government relied largely on the testimony of Lt. Stark, Mr. Collins, and Milton Warrior. Following the close of the government's case, Mr. Washington moved for dismissal of the charge against him, arguing that insufficient evidence existed to support a conviction because evidence of a defendant's “[m]ere intention to commit a ... crime” was not sufficient to warrant a finding that he had committed a “substantial step” towards the completion of that crime, and therefore he could not be found guilty of attempt. R., Vol. II, at 661–64. The district court denied the motion.

The defendant's case primarily rested on the testimony of Mr. Washington himself. Mr. Washington admitted being solicited by Mr. Collins to partake in a murder-for-hire plot. Mr. Washington claimed, though, that he never intended to kill Lt. Stark; he testified that his intention was to play along with the plan in order to get the up-front money, and then he planned to disappear. He acknowledged that he said numerous things that might invite a conclusion that he intended to kill Lt. Stark, but explained that he said them only to further the ruse. See, e.g., id. at 771 (“I was just coming out with everything I had to convince [Mr. Collins] that I was serious about whatever I was trying to do.”). Likewise, he equated the surgical gloves found on him to a “prop.” Id. at 777. He also testified that both he and Mr. Collins had accused each other of “bullshitting” about the plot, thereby indicating—at least according to Mr. Washington—that neither party necessarily believed the other would go through with it. Id. at 775–77.

The defense also called Anthony Evans, the Assistant District Attorney for Tulsa County, who testified to the fact that Mr. Collins was cooperating with the police in return for a new charge and an application to revoke being dropped. Mr. Irving also testified, claiming that he was set up in the murder-for-hire plot, and that it was not his voice on the numerous recordings played...