U.S. v. Wilson

Decision Date20 November 1998
Docket NumberNos. 97-3076,97-3077 and 97-3129,s. 97-3076
Citation160 F.3d 732,333 U.S. App. D.C. 103
PartiesUNITED STATES of America, Appellee, v. Ralph T. WILSON, Appellant.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeals from the United States District Court for the District of Columbia (No 96cr00319-01), (No. 96cr00319-02), (No. 96cr00319-03).

Reita Pendry, Assistant Federal Public Defender, argued the cause for appellant Ralph T. Wilson. With her on the briefs was A. J. Kramer, Federal Public Defender.

Thomas G. Corcoran, Jr., Washington, DC, appointed by the court, argued the cause and filed the briefs for appellant Louis Wilson.

Richard Seligman, Washington, DC, appointed by the court, argued the cause and filed the briefs for appellant Marcellus Judd.

All counsel for appellants were on the joint briefs.

Barbara J. Valliere, Assistant U.S. Attorney, Washington, DC, argued the cause for appellee. With her on the brief were Wilma A. Lewis, U.S. Attorney, John R. Fisher, Thomas J. Tourish, Jr., and Arthur G. Wyatt, Assistant U.S. Attorneys. Mary-Patrice Brown, Assistant U.S. Attorney, Washington, DC, entered an appearance.

Before: EDWARDS, Chief Judge, GINSBURG and ROGERS, Circuit Judges.

ROGERS, Circuit Judge:

These appeals arise out of the murder of a government witness scheduled to testify in the trial of James Wilson, who was charged with robbing a United States Post Office. The postal robbery charge was based on information supplied by the witness, who had worn a wire while he and James were at the Lorton Reformatory. Following James's arraignment on January 17, 1996, the government turned over to James's attorney a copy of the Lorton tape and transcript on the condition that the attorney not give copies of this material to anyone, including James, without the government's prior permission. The tape, as well as a January 25 letter from the prosecutor to James's attorney, revealed that the government's key witness was named Leroy Copeland. Shortly before the March 26 trial date, James's attorney met with James's wife and brother Ralph to review the evidence against James, informing them of Copeland's role and playing and reading portions of the tape and transcript to them. That evening the Wilson brothers--Ralph and Louis--began looking for Copeland. On March 25, Kirk Thomas, whom the Wilson brothers had enlisted to find Copeland, spotted Copeland and informed Marcellus Judd that Copeland was in the area. That evening, Louis murdered Copeland by shooting him repeatedly. The jury found James's brothers Ralph and Louis, as well as Marcellus Judd, guilty of conspiracy to kill a witness (18 U.S.C. § 371), killing a witness with intent to prevent him from testifying (id. § 1512(a)(1)(A)), retaliating against a witness (id. § 1513(a)(1)(B) & (2)), and first degree murder while armed (D.C.Code §§ 22-2401, -3202). Louis was also convicted of two counts of using a firearm during and in relation to a crime of violence (18 U.S.C. § 924(c)) and possession of a firearm during a crime of violence (D.C.Code § 22-3204(b)).

On appeal, appellants contend that the district court erred in impaneling an anonymous jury, denying severances, admitting the Lorton tape recording, excluding evidence that other persons might have murdered Copeland, instructing the jury on credibility and conspiracy, and providing copies of the trial transcript in response to a note from the jury. Judd further contends that there was insufficient evidence to convict him of conspiracy and of aiding and abetting. Louis contends that one of his consecutive § 924(c) convictions must be vacated and that the District of Columbia and federal charges merge, as do the § 1512 and § 1513 (killing and retaliation) charges. Concluding that appellants' contentions are mostly unpersuasive, we affirm their convictions except for Judd's convictions, which we reverse, and one of Louis Wilson's § 924(c) convictions, which we vacate.

I.

In contending that the district court erred in denying his motion for judgment of acquittal, Judd maintains that the evidence showed only that "Judd made statements during casual conversation ... while discussing the shooting." Our review is de novo, considering the evidence in the light most favorable to the government and determining whether any rational trier of fact could find all of the essential elements of the crime beyond a reasonable doubt. See United States v. Harrington, 108 F.3d 1460, 1464 (D.C.Cir.1997). As this court has observed, however,

[t]his review, although deferential, is not servile: "We do not ... fulfill our duty through rote incantation of these principles followed by summary affirmance. We must ensure that the evidence adduced at trial is sufficient to support a verdict as a matter of law. A jury is entitled to draw a vast range of reasonable inferences from evidence, but may not base a verdict on mere speculation."

United States v. Harrison, 103 F.3d 986, 991 (D.C.Cir.1997) (quoting United States v. Long, 905 F.2d 1572, 1576 (D.C.Cir.1990) (Thomas, J.)). We therefore cannot sustain a jury's verdict when "the government's web of inference is too weak to meet the legal standard of sufficiency." United States v. Teffera, 985 F.2d 1082, 1086 (D.C.Cir.1993).

The validity of Judd's convictions turns on whether the government presented sufficient evidence to show that Judd was part of the conspiracy and aided and abetted the murder of Leroy Copeland. The government offered evidence that on two occasions on the day of the shooting Judd informed the Wilson brothers that Copeland was in the area: first, when the Wilson brothers showed up in the area within ten minutes after Judd was seen in the same area as Copeland, 1 and second, when Kirk Thomas informed Judd that Copeland was in the area and Copeland was subsequently killed. 2 The government also presented evidence that Judd returned to the area where Copeland was shot. Finally, the government presented evidence that after the murder Judd told two people (Glenn Young and Steve Hamilton) that he had been the person who had informed the Wilson brothers that Copeland was in the area.

To prove that Judd was a conspirator, the government has the burden to show that he "entered into an agreement ... to commit a specific offense," that he "knowingly participated in the conspiracy with the intent to commit the offense," and that "at least one overt act was committed in furtherance of the conspiracy." United States v. Gatling, 96 F.3d 1511, 1518 (D.C.Cir.1996); see also United States v. Wynn, 61 F.3d 921, 928-29 (D.C.Cir.1995). The existence of an agreement is the sine qua non of the statutory crime of conspiracy. See United States v. Treadwell, 760 F.2d 327, 336 (D.C.Cir.1985). Thus, the government had to offer evidence that Judd agreed to join the Wilson brothers' effort to murder Copeland. Viewing the evidence most favorably to the government, as we must, see Gatling, 96 F.3d at 1517, the evidence shows only that Judd knew that the Wilson brothers were looking for Copeland, that he learned from Thomas that Copeland had been seen in the area, that he twice informed the Wilson brothers of that fact, and that he was in the same area as Copeland when Copeland was killed.

To convict, the jury would need to infer not only that Judd knew that the Wilson brothers planned to murder Copeland, but also that with knowledge of their plan and objectives, he agreed to join them. Given that several witnesses were in a position to offer testimony about the nature of Judd's involvement with the Wilson brothers' effort, the absence of such evidence is telling. While there was evidence that the Wilson brothers enlisted Thomas in an effort to locate and identify Copeland, informing Thomas of the reasons for their search, and that Thomas told Judd that another man (Young) had seen Copeland in the area, neither the Wilson brothers nor Thomas nor anyone else testified that Judd was told to inform the Wilson brothers, much less that the Wilson brothers and Judd were part of a joint effort to kill Copeland. That Judd twice informed the Wilson brothers of Copeland's presence shows, at best, only general knowledge of a planned crime, which is insufficient to prove conspiracy. See Teffera, 985 F.2d at 1087.

The sufficiency of the evidence of aiding and abetting presents, perhaps, a closer question. Aiding and abetting requires the government to prove: "(1) the specific intent to facilitate the commission of a crime by another; (2) guilty knowledge (3) that the other was committing an offense; and (4) assisting or participating in the commission of the offense." United States v. Gaviria, 116 F.3d 1498, 1535 (D.C.Cir.1997). The elements of aiding and abetting may overlap to some extent with, but still differ from, those of conspiracy. See United States v. Beckham, 968 F.2d 47, 51 (D.C.Cir.1992). In any event, the government still fails to meet its burden. To prove aiding and abetting the government must show that Judd shared some intent with the Wilson brothers and took some affirmative action to assist them in carrying out their plan to kill Copeland. See Gaviria, 116 F.3d at 1535. Although the intent of the aider and abettor need not be identical to that of the principal, see United States v. Walker, 99 F.3d 439, 442 (D.C.Cir.1996), the government still was required to show that Judd had sufficient knowledge and participation to allow a reasonable juror to infer that he "knowingly and willfully participated in the offense in a manner that indicated he intended to make it succeed." Teffera, 985 F.2d at 1086 (quoting United States v. Raper, 676 F.2d 841, 849 (D.C.Cir.1982)).

In other words, the government must show that Judd intended to bring about Copeland's murder (or to retaliate against Copeland or to prevent him from testifying) and that he knew why and what the Wilson brothers intended to do to Copeland. Here, there was no evidence...

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