U.S. v. Edmond, 90-3161

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Citation: 924 F.2d 261,288 U.S. App. D.C. 17
• Docket Number: No. 90-3161,90-3161
• Parties: UNITED STATES of America, Appellant, v. Rayful EDMOND, III, Appellee.
• Decision Date: 28 March 1991

Page 261

924 F.2d 261

288 U.S.App.D.C. 17

UNITED STATES of America, Appellant, v. Rayful EDMOND, III, Appellee.

No. 90-3161.

United States Court of Appeals,

District of Columbia Circuit.

Argued Oct. 9, 1990.

Decided Jan. 22, 1991.

Rehearing and Rehearing En Banc

Denied March 28, 1991.

Appeal from the United States District Court for the District of Columbia (Criminal Action No. 89-00162-01).

John R. Fisher, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John P. Dominguez and Elisabeth A. Bresee, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellant.

Plato Cacheris (appointed by the court), with whom Philip T. Inglima, Washington, D.C., was on the brief, for appellee.

Before SILBERMAN, HENDERSON, and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge RANDOLPH.

Dissenting Opinion filed by Circuit Judge SILBERMAN.

RANDOLPH, Circuit Judge:

This appeal raises two issues. The first is whether District of Columbia law permits Rayful Edmond, III to be prosecuted for aiding and abetting a first-degree murder after the gunman has been acquitted of that offense. The second question arises because Edmond successfully moved to sever counts in a multi-count indictment, forcing the government to try him twice, first for conspiracy and second for a murder allegedly committed in furtherance of the conspiracy. The question is whether the Double Jeopardy Clause of the Fifth Amendment bars the government, in the second trial, from proceeding on the basis that Edmond's participation in the conspiracy rendered him guilty of the murder.

I

On June 20, 1989, Rayful Edmond, III, Columbus Daniels and twenty-seven others were named as defendants in a forty-three count, superseding indictment. The indictment charged the defendants with participating in a conspiracy to violate federal narcotics laws and with committing various drug-related offenses. Count 21, which is at the center of this appeal, charged Edmond and Daniels with first-degree murder while armed:

RAYFUL EDMOND III, and COLUMBUS DANIELS, also known as "Little Nut," within the District of Columbia, while armed with a pistol, purposely and deliberately with premeditated malice, killed Brandon Terrell, by shooting him with a pistol on or about June 23, 1988, thereby causing injuries from which Brandon Terrell died on or about June 23, 1988.

(In violation of Title 22, D.C. Code, Sections 2401, 3202 and 105).

The government had two theories for proving Edmond's guilt of Count 21. The first was aiding and abetting. The second was that Edmond created and controlled a large conspiracy to distribute cocaine and that Brandon Terrell was murdered in furtherance of that unlawful agreement. Whether Edmond was on notice of this second theory is in dispute. In this appeal, the government informs us that it expected to show that Edmond supplied drugs to Terrell, that Terrell refused to pay for the drugs, and that Terrell wanted to compete with Edmond by establishing his own drug distribution network. On the evening of Terrell's death, the following events allegedly transpired. Terrell insulted Edmond and argued with him when they met at a Washington, D.C., nightclub. Before leaving the nightclub, Edmond told Columbus Daniels, one of his lieutenants, to go outside, retrieve a gun, and wait for an instruction to shoot Terrell. Later, outside the club, Edmond and Terrell argued again. Edmond withdrew and, upon his signal, Daniels shot and killed Terrell.

On the motions of Edmond and other defendants, the district court severed Count 21 and other counts charging firearms offenses and crimes of violence. The court also severed the defendants. Two trials of different defendants proceeded on the conspiracy counts and other drug-related counts. On December 6, 1989, the jury found Edmond guilty of participating in a conspiracy to violate federal narcotics laws, conducting a continuing criminal enterprise, unlawfully employing persons under the age of eighteen, travelling interstate in aid of racketeering, and unlawfully using a communications facility. In a separate trial, the jury convicted Daniels of conspiracy.

Edmond, Daniels and two additional defendants (James Antonio Jones and Jerry Millington) still faced trial on the severed counts. In proceedings unnecessary to recount in detail (see 738 F.Supp. 572 (D.D.C.1990)), the district court dismissed the one remaining federal charge (carrying a firearm in connection with a drug trafficking offense, 18 U.S.C. Sec. 924(c)). This left only counts charging violations of District of Columbia law, including Count 21. The district court initially had pendent jurisdiction over these local offenses as a result of their joinder with the federal charges in the indictment (see United States v. Koritko, 870 F.2d 738, 739 (D.C.Cir.1989)). Although no federal charges remained to be tried, the court exercised its discretionary authority to retain jurisdiction over the local offenses and scheduled the trial of these defendants for July 12, 1990. 738 F.Supp. at 579.

Before that date, the government dismissed without prejudice the charges against Jones and Millington. On Edmond's motion, the court ordered that he and Daniels be tried separately. Daniels was tried first on Count 21. On June 21, 1990, the jury returned a special verdict, finding Daniels not guilty of first-degree murder while armed but guilty of the lesser included offense of second-degree murder while armed.

This caused Edmond to move for a reduction of the murder charge against him to second-degree murder while armed, to the extent his responsibility rested on aiding and abetting Daniels. The court granted Edmond's motion and, in another ruling, held that the Double Jeopardy Clause barred the government from proving Edmond's guilt by showing that Daniels murdered Terrell in furtherance of a conspiracy of which Edmond was a member. The government brought this appeal instead of prosecuting Edmond in compliance with these rulings.

II

The district court reduced the charge against Edmond to second-degree murder on the ground that District of Columbia law does not permit an aider and abettor to "be tried for an offense greater than that committed by the principal." Memorandum opinion at 4 (July 11, 1990). Daniels' acquittal of first-degree murder therefore relieved Edmond of liability for that offense.

Whether the district court ruled correctly turns on the meaning of D.C.Code Sec. 22-105:

In prosecutions for any criminal offense all persons advising, inciting, or conniving at the offense, or aiding or abetting the principal offender, shall be charged as principals and not as accessories, the intent of this section being that as to all accessories before the fact the law heretofore applicable in cases of misdemeanors only shall apply to all crimes, whatever the punishment may be.

D.C.Code Sec. 22-105 is an Act of Congress applicable exclusively to the District of Columbia. We do not treat such local statutes as if they were part of the United States Code. Our policy has been to defer to the District of Columbia Court of Appeals on questions of statutory interpretation. D.C.Code Sec. 11-102; Hall v. C & P Tel. Co., 793 F.2d 1354, 1358 & n. 9 (D.C.Cir.1986), reh'g denied, 809 F.2d 924 (D.C.Cir.1987). The Supreme Court does the same, treating interpretations by the District of Columbia Court of Appeals as if they were rendered by the highest court of a State on questions of state law, with the exception that the Court will interpose its own judgment when it detects an egregious error. Pernell v. Southall Realty, 416 U.S. 363, 368-69, 94 S.Ct. 1723, 1726, 40 L.Ed.2d 198 (1974); Whalen v. United States, 445 U.S. 684, 687-89, 100 S.Ct. 1432, 1435-36, 63 L.Ed.2d 715 (1980).

The District of Columbia Court of Appeals has determined that D.C.Code Sec. 22-105 "does not differ substantially from its federal counterpart." Hackney v. United States, 389 A.2d 1336, 1342 (D.C.1978), cert. denied, 439 U.S. 1132, 99 S.Ct. 1054, 59 L.Ed.2d 95 (1979). For that reason, if the court of appeals were faced with the issue presented here it would doubtless consult Standefer v. United States, 447 U.S. 10, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980), and its interpretation of 18 U.S.C. Sec. 2(a), which renders anyone who aids or abets the commission of a federal offense "punishable as a principal." The district court thought, however, that Standefer would exert little influence on the court of appeals. We disagree. The similarity between the federal and local statutes and their common origin, which Standefer describes, entitles the Supreme Court's decision to far more weight than the district court was willing to give it.

Standefer held that a defendant accused of aiding and abetting the commission of a federal offense may be convicted despite the principal's acquittal of that offense. Early common law applied this rule to aiders and abettors of misdemeanors. A more complicated rule governed aiders and abettors of felonies. Principals in the second degree--that is, accessories who were actually or constructively present at the scene of the felony offense--were treated in the same manner as abettors of misdemeanors. 447 U.S. at 16, 100 S.Ct. at 2004. Other accessories in felony cases, however, were treated differently. Their liability was considered derivative and their fate depended on the fate of the principals, who were required to be tried first. If the actual perpetrators were never tried, or were acquitted, or were pardoned after conviction, these accessories could not be held criminally liable for the offense. Id. Early in this century, as part of a general reform movement, Congress adopted the common law misdemeanor rule for all federal of fenses.. 447 U.S. at 18-19, 100 S.Ct. at 2005. The Supreme Court found that the predecessor of 18 U.S.C. Sec. 2(a) had abolished the common law's misdemeanor-felony distinction by directing that whoever aided or abetted...