United States v. McGill

• Decision Date: 01 March 2016
• Docket Number: Nos. 06–3190,07–3003,07–3124.,06–3193,07–3065,07–3001,s. 06–3190
• Citation: 815 F.3d 846
• Parties: UNITED STATES of America, Appellee v. Keith B. McGILL, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

815 F.3d 846

UNITED STATES of America, Appellee

v.Keith B. McGILL, Appellant.

Nos. 06–3190

06–3193

07–3001

07–3003

07–3065

07–3124.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 2, 2015.

Decided March 1, 2016.

Gregory Stuart Smith, Dennis M. Hart, Richard K. Gilbert, Manuel J. Retureta, David B. Smith, and Mary E. Davis, all appointed by the court, argued the causes for appellants. With them on the briefs was Kristen Grim Hughes, appointed by the court.

Leslie A. Gerardo, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Ronald C. Machen Jr., U.S. Attorney at the time of the filing, and Elizabeth Trosman and Chrisellen R. Kolb, Assistant U.S. Attorneys. Mary B. McCord, Assistant U.S. Attorney, entered an appearance.

Before: SRINIVASAN and MILLETT, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed PER CURIAM.

PER CURIAM:

In November 2000, a grand jury returned a 158–count superseding indictment against sixteen defendants. The indictment alleged that, during the late 1980s and throughout the 1990s, those defendants conspired to run a large-scale and violent narcotics-distribution business centered in Washington, D.C. The defendants were charged with an array of offenses including narcotics conspiracy and racketeering conspiracy, as well as numerous counts of first-degree murder, assault with intent to murder, tampering with a witness or informant by killing, continuing-criminal-enterprise murder, and violent crime in aid of racketeering conspiracy.

Many of the indicted defendants pleaded guilty to the charges, while the others went to trial in two separate groups. "Group One" consisted of six defendants, including the conspiracy's alleged leaders, Kevin Gray and Rodney Moore. The Group One trial culminated in guilty verdicts and substantial sentences for each defendant. We affirmed most of those verdicts and sentences in United States v. Moore, 651 F.3d 30 (D.C.Cir.2011)

, aff'd in part sub nom. Smith v. United States, ––– U.S. ––––, 133 S.Ct. 714, 184 L.Ed.2d 570 (2013).

"Group Two" consisted of five defendants from the November 2000 indictment: Deon Oliver, Franklin Seegers, Kenneth Simmons, James Alfred, and Ronald Alfred. Before their trial, the government obtained a separate six-count indictment against Keith McGill arising from his participation in the same conspiracy. The district court joined McGill for trial with the other Group Two defendants.

On October 16, 2003, the Group Two trial commenced. Nearly six months later, on March 31, 2004, the jury began its deliberations. In April and May 2004, the jury found Oliver, Simmons, James Alfred, Ronald Alfred, and McGill guilty on all counts and found Seegers guilty on seven of the charged counts. After denying their posttrial motions, the district court sentenced all defendants to lengthy prison terms. Each received at least one term of life imprisonment, with the exception of Seegers, whose combined sentence of imprisonment amounted to forty years to life.

The six Group Two defendants now appeal. Appellants challenge the sufficiency of the evidence against them on many of the charges. They also raise various claims concerning the conduct of the trial, including challenges to the district court's dismissal of a juror during deliberations and to certain of the court's evidentiary rulings. Appellants also allege prosecutorial misconduct and ineffective assistance of counsel, and one appellant (McGill) challenges his sentence.

Upon review, we conclude that the evidence was sufficient to convict on all of the challenged counts. We also reject most of the claims of error or find that the alleged errors were harmless under the appropriate standard of review. We reverse the convictions on two counts against Seegers, however, and we also remand to the district court to determine whether any of appellants' conspiracy convictions must be vacated because of a Confrontation Clause violation. Certain of McGill's sentencing arguments have merit, moreover, and we remand for examination of claims by Simmons and Ronald Alfred that they received ineffective assistance of counsel before the district court.

Appellants' consolidated briefing to this court is organized under discrete issue headings designated by Roman numerals. Our section headings conform to appellants' presentation of the issues (although we omit those section numbers denoting instances in which one appellant merely joined other appellants' arguments). Detailed discussions of the facts, evidence, and proceedings will be set forth as necessary to address each issue appellants raise.

We now proceed to address each issue raised by appellants. While certain of their arguments on each issue do not merit separate discussion, any arguments not directly addressed were fully considered and their disposition is so directly dictated by precedent as to not merit individualized discussion.

I. Removal of Juror

In their first joint argument, appellants challenge the district court's dismissal of a juror for misconduct during deliberations. Appellants argue that the dismissed juror was inclined to vote for acquittal and that his dismissal violated their Sixth–Amendment right to conviction only by a unanimous jury. We find no error. We review the circumstances giving rise to the juror's dismissal in some detail because the facts bear substantially on our review of the district court's decision and our rejection of appellants' challenge.

A.

1.

The circumstances leading to the juror's dismissal are as follows. On April 1, 2004, one day after its deliberations began, the jury sent a note to the district court indicating that it was experiencing some difficulties with one juror. The note reported that "[o]ne juror has stated categorically that he does not believe in any testimony from any of the cooperating witnesses." J.A. 1049. That juror had also told the others "that there is no other evidence presented by the prosecution either direct, circumstantial, non-cooperating [witnesses], et[c]. that would likely lead to an unanimous decision." Id. The district court instructed the jury to continue its deliberations.

After the next day of deliberations, the jury sent another note to the court relating to "one juror." Id. at 1052. That note relayed that the juror "ha [d] stated from the beginning of our deliberation that he does not believe any testimony of or by the prosecution, defense or any law enforcement witness." Id. Once again, the district court told the jury to continue its deliberations.

On April 8, the jury sent a third note to the court, stating that it had "had serious and productive discussion." Id. at 1064. The note further reported that "[o]ne juror continues to refuse to accept any evidence and discuss or consider any verdict but not guilty or not proven for any count or charge for any defendant." Id. In response, the court instructed the jury that, although "each juror is entitled to his or her opinions[,] [e]ach juror should ... exchange views with his or her fellow jurors[,] ... discuss and consider the evidence, ... consult with one another, and ... reach an agreement based solely and wholly on the evidence." Id. at 1076.

On April 14, the jury sent back two more notes in quick succession. The first note requested portions of the trial testimony. It also stated: "In addition, we have one juror # 9, that refuses to participate in any and all deliberations for this trial." Id. at 1078.

The second April 14 note raised a separate issue concerning the same juror (Juror # 9). It stated:

On April 13, 2004, I Juror [# 12] observed Juror # 9 throughout deliberations writing notes or things out of his jury book [with] all defendants['] charges, then at (April 13) the end [of] deliberations he pull[ed] 3 pieces of paper from that tablet (yellow)[,] fold[ed] them in half and placed them in his eye glass case.

Id. at 1079. Another paragraph followed in different handwriting:

Note as Foreman [Juror # 10] I am very disturb[ed] and concern[ed] by th[ese] actions on Juror # 9. If an alternate is available that would make me feel safer.

Id.

The district judge read the notes aloud when defense and government counsel gathered in the courtroom that day. The judge also shared additional information about what had transpired the previous evening. The judge stated that, as the jurors exited the van that transported them to a secure location at the end of each day, the foreman, Juror # 10, took aside the accompanying marshal and told him that Juror # 12 had witnessed Juror # 9 removing notes from the jury room. According to the judge, Juror # 10 spoke with the marshal because the jurors had received instructions to take nothing out of the jury room. Juror # 10 suggested that the marshal search Juror # 9, which the marshal declined to do. Later that night, Juror # 10 called the marshal on his cell phone, expressing fear "[t]hat the jurors might be compromised by whatever it was that was taken out of the room." Id. at 554748.

The court asked the two sides for their views on how to proceed. The government expressed concern about Juror # 9's potential misconduct in removing notes from the jury room and the fact that Juror # 9 had apparently made the foreman "feel unsafe"; the government also worried that Juror # 9 may have "given the impression to the jurors that their anonymity ha[d], perhaps, been compromised." Id. at 5539–40. The government suggested that the court conduct individual voir dires of the three jurors involved: Juror # 12, who claimed to have witnessed Juror # 9 writing and hiding the notes; Juror # 10, whom Juror # 12 had told about the incident; and Juror # 9. The government stressed the heightened security precautions the court had employed for the trial and explained that maintaining a "continued sense of safety, security, and anonymity ... is all important as [the jurors] move forward in their deliberations." Id. at 5564. In addition, the government argued that the...