United States v. Gooch, No. 07-3106
| Decision Date | 06 January 2012 |
| Docket Number | No. 07-3106 |
| Parties | UNITED STATES OF AMERICA, APPELLEE v. LARRY A. GOOCH, JR., APPELLANT |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Stephen C. Leckar, appointed by the court, argued the cause and filed the briefs for appellant.
Elizabeth Gabriel, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Ronald C. Machen, U.S. Attorney, and Roy W. McLeese III, Mary B. McCord, and John P. Dominguez, Assistant U.S. Attorneys.
Before: GINSBURG,* Circuit Judge, and EDWARDS and WILLIAMS, Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge EDWARDS.
EDWARDS, Senior Circuit Judge: Appellant, Larry Gooch, was tried for various crimes arising from his involvement in the "M Street Crew," a gang in Washington, D.C. By jury verdict returned on June 1, 2007, Appellant "was found guilty of a narcotics conspiracy, participation in a Racketeer Influenced Corrupt Organization ('RICO'), drug dealing, four felony murders, assault with intent to kill while armed, assault on a police officer, three violent crimes in aid of racketeering activity ('VICAR'), and various gun charges." United States v. Gooch, 514 F. Supp. 2d 63, 64 (D.D.C. 2007).
On appeal, Appellant advances several claims as grounds for reversal. First, he contends that the District Court clearly and plainly erred in allowing the Government to use peremptory challenges to remove qualified blacks from the venire, in violation ofBatson v. Kentucky, 476 U.S. 79 (1986). Second, he argues that the District Court erred, under Rule 8 of the Federal Rules of Criminal Procedure, in rejecting his challenge to the joinder of local and federal charges stemming from the murders in August 2000 of William Cunningham and Christopher Lane. Third, he asserts that the District Court erred, under Rule 14 of the Federal Rules of Criminal Procedure, in denying his motion for severance of counts relating to the Cunningham/Lane incident, as well as his motion to vacate judgment as to the Cunningham/Lane incident. Finally, he maintains that the District Court erred in denying his motion for judgment of acquittal on two counts of murder pursuant to the VICAR statute, 18 U.S.C. § 1959 (2006), arising from the murders of Calvin Cooper and Yolanda Miller. Because we find no reversible error, we reject Appellant's claims and affirm the judgment of the District Court.
For nearly two years, the Federal Bureau of Investigation and the Metropolitan Police Department conducted a series of undercover and surveillance operations in the Northeast area of Washington, D.C. These law enforcement operations focused on a gang known by its location as the M Street Crew. In March 2004, law enforcement officials executed a massive "take down" of the organization. Gooch, along with more than thirty other persons, was arrested. In October 2005, Gooch and eighteen others were charged in an 159-count indictment with various narcotics conspiracy, racketeering conspiracy, murder, narcotics trafficking, and weapons crimes. The charged parties were divided into three groups for trial. Gooch was in a group that included Tommie Dorsey, Jonte Robinson, and Kenneth Dodd.
A superseding indictment was filed on October 19, 2005. Charges arising from the Cunningham/Lane murders were joined in the indictment. Offenses related to the murders were charged as substantive offenses under the D.C. Code. Superseding Indictment, App. to Appellant's Br., Vol. IB ("App. IB") at 57-63. They were also charged as overt acts in furtherance of the narcotics and RICO conspiracies. Id. at 14-15, 40.
Jury selection began in January 2007. The record leaves the matter unclear on this point, but it seems that the jury pool included either sixty-four or seventy-four people, half of whom were black. See Tr. of Batson Hearing, Feb. 5, 2007 ("Tr. 2/5/07"), App. to Appellant's Br. Vol. IIB ("App. IIB") at 1022-23. During voir dire, the Government appears to have struck sixteen blacks, five whites, and one Latino from the jury pool. Appellee's Br. at 18-19. A jury of eighteen, including six alternates, was chosen. The jury consisted of eight whites, eight blacks, one Asian, and one Latino. Id. at 19. On February 5, after the jury had been selected, Gooch raised a Batson challenge, claiming that the Government disproportionately usedits peremptory strikes to remove black persons from the jury pool. The District Court asked the Government to articulate reasons for its strikes of black females from the pool of persons available for jury duty. The Government responded by offering explanations for each of its peremptory challenges.
Gooch challenged the Government's explanations with respect to Jurors 408, 854, and 1940. The District Court denied his challenges, finding that the Government had "fully explained in a race neutral way each of its strikes." Tr. 2/5/07 at 1029. Counsel for Gooch then requested leave to raise "similarly situated" objections, indicating that he would like time to perform a comparative analysis of stricken black jurors with those who remained in the jury pool and that he would do so that night. The trial judge granted Appellant's request but instructed counsel to be prompt if he intended to raise any similarly situated objections. Gooch's counsel never raised the issue again, so it was not among the Batson claims raised by Appellant with the District Court.
On January 17, 2007, after the jury had been selected but before trial, Dodd, Robinson, and Dorsey each entered plea agreements and were no longer co-defendants. Docket, App. to Appellant's Br., Vol. IA at 149. Gooch proceeded to trial as the sole defendant.
Trial began on February 7, 2007. The evidence adduced at trial documented Gooch's role in the gang and implicated him in two double homicides. Gang members coordinated their drug-dealing efforts, cooperated with one another to avoid arrest and imprisonment, and maintained a reputation for violence. The evidence at trial further established that Gooch served as the "muscle" for the M Street Crew, enforcing the gang's rules, engaging in violence, and punishing disloyalty to the gang.
During trial, a great deal of testimony centered on the August 1, 2000 robbery and murders of Cunningham and Lane.Herbert Jones ("Jones"), the uncle of Bonita Jones (who was the mother of Gooch's child), asked Gooch to rob Cunningham and Elijah Walker. Jones had heard that Cunningham and Walker planned to rob him, and he wanted to take preemptive action against his adversaries. Gooch, along with fellow M Street Crew members Dorsey and Robinson, picked up Jones in Gooch's car. After they arrived at the place where Cunningham lived, Gooch, Jones, and Dorsey went to the residence while Robinson waited at the car. When Cunningham came to the door, Gooch pulled out a gun and told Cunningham to get on the floor. Cunningham refused and tried to grab the gun. But Gooch turned Cunningham around and shot him in the head. Dorsey then shot Lane, who was also in the residence.
After the murders, Robinson entered the residence and stole money from the bedroom, where Jones instructed him that he could find it. Gooch, in turn, took crack cocaine from Cunningham's dining room table. The next day, Gooch attempted to give Jones some of the money from the heist, but Jones refused. Gooch later discussed the incident with Michael Abney and Carleton Wills, who were either members or associates of the M Street Crew.
The Government charged the August 1, 2000 Cunningham/Lane incidents (burglary, robbery, and murder) as substantive offenses under the D.C. Code, as well as overt acts in furtherance of both the narcotics and RICO conspiracies. In a pre-trial motion, Appellant claimed misjoinder under Rule 8 of the Federal Rules of Criminal Procedure and sought severance of these charges on the grounds that the Cunningham/Lane incidents had no connection to the larger narcotics and RICO conspiracies. The District Court denied Gooch's motion.
In the course of the trial, the Government also presented evidence on the February 21, 2003 murders of Cooper and Miller. Apparently, the "word on the street" was that Cooper and Miller were "snitching" and "stealing stashes." Trial Tr.,March 27 p.m., 2007 ("3/27/07 p.m."), App. for Appellee at 58. Miller even admitted to stealing stashes. Trial Tr., Mar. 22 p.m., 2007 at 66-67, 69. On the night of the murders, Wills heard gunshots and witnessed both Gooch and Cooper running out of an alley onto 17th Street, N.E. Cooper fell to the ground, but Gooch kept running and disappeared between two buildings. Officer Keith McAbee also saw two men coming out of the alley. Officer Duane Davis saw Cooper near the alley and Gooch running from the scene. Davis testified that he recognized Gooch, because he had spoken to Gooch in the same alley earlier that day. Later that night, Gooch told Wills that he had shot Cooper. Two days after that, Gooch again spoke to Wills, expressing concern that Cooper had uttered Gooch's name before dying and that the police had found the murder weapon. Gooch also told Abney that he had murdered Cooper and Miller; at trial, Abney offered details from that conversation which corroborated Wills's and Davis's testimony. The gun was found near the crime scene, and law enforcement officials retrieved a fingerprint from the gun that implicated Gooch.
On June 1, 2007, the jury convicted Gooch on a variety of charges, including narcotics conspiracy, RICO conspiracy, burglary, felony murder, first- and second-degree murder, assault, various narcotics and weapons offenses, and the VICAR counts arising from the Cooper/Miller murders. On August 10, 2007, after the jury returned its verdict, Appellant filed a Motion to Vacate the Judgment of Guilt, which was opposed by the Government. Gooch, 514 F. Supp. 2d at 64. On ...
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