USA v. Weathers

• Decision Date: 06 August 1999
• Docket Number: No. 98-3006,98-3006
• Citation: 337 U.S. App. D.C. 362,186 F.3d 948
• Parties: (D.C. Cir. 1999) United States of America, Appellee v. Marc K. Weathers, Appellant
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 948

186 F.3d 948 (D.C. Cir. 1999)

United States of America, Appellee v. Marc K. Weathers, Appellant

No. 98-3006

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 14, 1998

Decided August 6, 1999

Appeal from the United States District Court for the District of Columbia(No. 97cr00165-02)

Beverly G. Dyer, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A.J. Kramer, Federal Public Defender.

Rachel Adelman-Pierson, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Wilma A. Lewis, U.S. Attorney, John R. Fisher and Elizabeth Trosman, Assistant U.S. Attorneys.

Before: Silberman, Rogers and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Garland.

Garland, Circuit Judge:

Defendant Marc Weathers was found guilty on all counts of a six-count indictment arising out of his attempts to arrange for the murder of several witnesses and a prosecutor. He contends that two of his six convictions should be vacated because each charges an offense also included in the remaining four counts. We conclude that defendant waived this claim by failing to raise it before trial. We find that defendant's further contention, that his attorney provided ineffective assistance by failing to assert this claim in a timely manner, must be remanded to the district court for an initial determination.

I

In a case filed in the Superior Court of the District of Columbia in 1996, Assistant United States Attorney (AUSA) Bernadette Sargeant obtained an indictment charging Weathers with thirty-seven counts of rape and related offenses involving five victims, including a thirteen-year-old child.¹The presiding judge ordered the five rape cases severed for separate trials. Prior to trial on the first rape case an informant told Sargeant that defendant had plotted to kill the five victims to prevent them from testifying. The trial was postponed, and after investigation Sargeant obtained a second Superior Court indictment charging Weathers with two counts of obstruction of justice.

In March 1997, just weeks before the rescheduled rape trial was set to begin, a second informant told the FBI that Weathers was trying to hire him to arrange the killing of both the rape victims and the prosecutor. At the government's request, the informant met with Weathers and recorded a conversation in which defendant said he would pay $1,000 in advance and $19,000 after AUSA Sargeant was killed. The plan required the informant to hire a hit man, and provided that defendant's friend on the outside, Maurice Logan, would make the necessary payments. 9/30/97 Tr. at 6-8, 10-11, 1519.

On March 19, 1997, Detective Larry Best of the Metropolitan Police Department, posing as a hit man, met with Weathers in jail and discussed the details of the murder-for-hire scheme. Weathers instructed Detective Best that he should first kill the victim in the upcoming trial, who lived on Hayes Street. "I need Hayes done first," defendant said. App. 19;9/29/97 Tr. at 138-40. "Maybe you can blow that [expletive deleted] up." App. 23. With respect to AUSA Sargeant, whom he referred to as the "DA," Weathers first said that killing her "ain't gonna do nothing but slow the proces[s] ... cause see if she gone they just put another one in." Id. at 19.Later, however, defendant said: "I just want her gone. You know what I'm saying. I just want 'em gone. Set an example.... I don't really got no ... special way. I just want it done. You know what I'm saying. Easiest way for you." Id. at 20, 22. Weathers told Best that he could get his payment for the killings from Weathers' friend Logan and a woman named Mattie. Id. at 15-19.

On March 26, 1997, the FBI conducted a search of Maurice Logan's apartment, in which it found a letter from defendant dated March 9. 9/29/97 Tr. at 150-53. In that letter, Weathers urged Logan to burn down the witnesses' homes to keep them from testifying. The letter read, in part:

[T]hese people are trying to give me life without parole, and we both know I can't do that number, so I need you to get at a couple of these bitches for me. You don't have to kill them, just burn they house down while the yin it, or something, so they won't come to court. You know if the situation was reversed, I'd do it for you....[T]hey don't have a case without these bitches, and they ain't going to spend no money hiding every body.

Id. at 180-81.

On April 22, 1997, Weathers was indicted in United States District Court for plotting against the witnesses and prosecutor in his Superior Court cases. The indictment charged him with: (1) using facilities of interstate commerce in the commission of murder-for-hire, in violation of 18 U.S.C. § 1958;(2) threatening to injure a person (the rape victims), in violation of D.C. Code § 22-2307; (3) obstructing justice (based on the threats against the rape-victim witnesses), in violation of D.C. Code § 22-722(a)(6); (4) threatening a federal official (AUSA Sargeant), in violation of 18 U.S.C. § 115;(5) threatening to injure a person (Sargeant), in violation of D.C. Code § 22-2307; and (6) obstructing justice (based on the threats against Sargeant), in violation of D.C. Code § 22-722(a)(6). App. 11-14.² The defendant was convicted on all counts, and was sentenced to: (1) ten years imprisonment on Count One; (2) 80-240 months on each of Counts Two and Five; (3) fifteen years to life on both Counts Three and Six; and (4) five years imprisonment on Count Four. The court ordered Counts Two, Three, Five, and Six to run consecutive to each other, but concurrent with consecutive sentences on Counts One and Four.

II

Defendant contends that his indictment charged the same offense in more than one count, a problem known as "multiplicity." See 1A Charles Alan Wright, Federal Practice & Procedure §§ 142, 145, at 7-8, 86 (3d ed. 1999). Because the Double Jeopardy Clause protects not only against "a second prosecution for the same offense" after acquittal or conviction, but also against "multiple punishments for the same offense," North Carolina v. Pearce, 395 U.S. 711, 717 (1969), defendant contends that two of his convictions must be vacated. See Jones v. Thomas, 491 U.S. 376, 381 (1989). Whether defendant has in fact been punished twice for the same offense, however, depends upon what "the legislature intended." Id.; see Missouri v. Hunter, 459 U.S. 359, 366-68 (1983).³

Defendant's first contention is that his conviction on Count Four for threatening a federal official (AUSA Sargeant) in violation of 18 U.S.C. § 115, and his conviction on Count Five for threatening to injure a person (also Sargeant) in violation of D.C. Code § 22-2307, constitute two convictions for the same offense. To determine whether Congress intended two statutory provisions to proscribe the same offense, the Supreme Court has applied the rule set forth in Blockburger v. United States: "[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." 284 U.S. 299, 304 (1932); see Rutledge v. United States, 517 U.S. 292, 297 (1996); Hunter, 459 U.S. at 366-67. Defendant contends that the offenses charged under 18 U.S.C. § 115 and D.C. Code § 22-2307 constitute a single offense under Blockburger.

Section 115(a) makes it a crime to "threaten[ ] to assault, kidnap, or murder, a United States official, ... with intent to impede, intimidate, or interfere with such official, ... while engaged in the performance of official duties...." D.C. Code § 22-2307 makes it a crime, within the District of Columbia, to "threaten[ ] ... to injure the person of another."As is apparent from a reading of the two statutes, some facts required to prove Count Four are not required to prove Count Five (for example, that the threatened person is "a United States official" and that the threat was made with "intent to impede"). Defendant contends, however, that there is no fact required to prove Count Five that is not also required to prove Count Four. If true, this would make the local crime charged in Count Four the equivalent of a "lesser included offense" of the federal crime charged in Count Five. Therefore, an indictment charging both would fail the Blockburger test. See Rutledge, 517 U.S. at 297.

The government disputes this conclusion. It contends that the D.C. statute does have an additional element not contained in the federal statute. Pointing to model jury instructions for D.C. Code § 22-2307, and to United States v. Baish, 460 A.2d 38, 42 (D.C. 1983), the government argues that the D.C. statute requires a threat of serious bodily harm. By contrast the federal statute is violated by a threat of mere "assault," which, the government contends, may involve a threat of nothing more serious than being spat upon or hit with an egg. Gov't Br. at 15-16 & n.14. Since (if correct) this means the D.C. law has an element not found in the federal statute (the threat of serious harm), the government contends that charging and convicting defendant of both does not fail Blockburger.

Defendant's second contention is that we must vacate either his conviction on Count Three, for violating D.C. Code § 22-722(a)(6) by obstructing justice based on the threats he made against the rape-victim witnesses, or his conviction on Count Six, for violating the same statute based on the threats he made against Sargeant. He argues that these also constitute a single offense. Where two violations of the same statute rather than two violations of different statutes are charged, courts determine whether a single offense is involved not by applying the Blockburger test, but rather by asking what act the legislature intended as the "unit of prosecution" under the statute. See Sanabria v. United States, 437 U.S. 54, 70...