A rational actor should not be overeager to join “Brothers of the Struggle” or “Gangster Disciples” (“BOS”), primarily comprised of a group of servicemen with too much idle time on their hands who were stationed at Ramstein Air Force Base in Germany. BOS is said to be related to the Gangster Disciples, an American gang with roots in Chicago and corresponding individual “sets,” or local groups, around the world. (The BOS group was said to engage in fistfights but supposedly didn’t engage in other criminal activities.) “Initiation” in BOS meant that a new member would be beaten up in a “jump-in,” during which approximately six BOS members would hit the initiate for about six minutes, striking blows between the neck and the waist. The initiate could not defend himself in any way. During jump-ins initiates were asked repeatedly if they wanted to proceed. If the initiate declined, the initiation ended; otherwise if the initiate acceded, it continued. After a jump-in, the new member would be hugged, kissed on the cheek, shown the BOS handshake, and taken out to celebrate. In the past, about fifteen to eighteen jump-ins had occurred and no one had been hospitalized or injured.
Rico Williams changed the rules of the “game” during Army Sergeant Juwan Johnson’s hazing. Williams was an ex-serviceman who was living at Ramstein as a dependent of his wife, who was also an Airman. Williams struck Johnson several times in the face during a jump-in that nine, not the usual six, BOS members joined in. As events transpired, the hazing continued, even though Johnson kept saying he was all right, and went on after Johnson had fallen to the ground and was kicked by members. Although Johnson never lost consciousness, he died within hours of the beating. (The sad details are at pages 3-4 of Circuit Judge Griffith’s majority opinion.)
Williams was charged under the Military Extraterritorial Jurisdiction Act of 2000 (“MEJA”), which provides federal jurisdiction over crimes committed by a civilian accompanying the Armed Forces outside the United States (18 U.S.C. § 3261 et seq.), with second degree murder on an American installation. In addition he was accused of witness tampering (18 U.S.C. § 1512(b)(3)). (Slip Op. at 5-6). An autopsy revealed “blunt force injuries” to Johnson’s brain and heart, which the Government’s medical expert opined had caused Johnson’ death. The defense medical expert, in turn, asserted that the cause of death was sickle-cell trait, a typically asymptomatic genetic condition, and that “superficial blunt impact injuries” were merely a “contributing” cause of death. (Slip Op. at 5). Williams was convicted of the murder count and received a 22-year sentence and a concurrent ten-year sentence on one of the tampering counts. (Id. at 6-7).
On appeal, Williams maintained that the evidence was insufficient to convict him of murder and that a prosecutorial misstatement of law during closing argument substantially prejudiced his trial. He further challenged several evidentiary rulings by the district court and asserted various other alleged prosecutorial errors. A split panel Circuit rejected all claims other than the one focusing on the closing argument, of which more momentarily. Readers interested in the law governing appellate review of insufficiency of evidence claims, MEJA issues, and the mental state required to be convicted of murder are urged to read Judge Griffith’s masterful discussion at pages 7-16 of the Slip Opinion. One such example is the law applicable to resolving questions that arise “‘[w]hen the existence of an object, condition, quality, or tendency at a given time is in issue,’” in which case “its ‘prior existence’ can indicate that it ‘persist[ed] or continu[ed] at a later period.’” (Slip Op. at 10-11) (quoting United States v. Stuart-Caballero, 686 F.2d 890, 893 (11th Cir. 1982) (internal citation omitted) (emphasis original).
The key issue over whether the Government’s rebuttal closing argument had tainted the murder conviction (but not the witness tampering charge) divided the panel sharply. Judge Griffith found prejudicial error (Slip Op. at 17-31), Circuit Judge Kavanaugh specifically agreed on that point (Slip Op. at 1-3) (Kavanaugh, J., concurring), and Circuit Judge Henderson issued a strongly worded partial dissent. (Slip Op. at 1-264) (Henderson, J., concurring in part and dissenting in part). The error in the closing argument here was not of the usual genre: no vouching, no inflammatory remarks, no flagrant misstatement of the evidence. Rather Judge Griffith explained that “the government misstated the law in its closing argument. Because the misstatement implicated a central issue—the state of mind with which Williams acted —and was not sufficiently cured, it requires reversal of Williams’s murder conviction.” (Slip Op. at 16-17).
At trial everyone agreed on a jury instruction that he defense of consent is not available for homicide or involuntary manslaughter. They differed over whether the jury could consider Johnson’s consent to the jump-in on the issue of whether Williams had the necessary malice aforethought to establish the crime of second-degree murder.” The defense unsuccessfully contended that Johnson’s willing participation in the initiation should be considered by the jury in assessing whether Williams consciously disregarded an extreme risk to human life. (Id. at 17).
In closing defense counsel urged the jury that Johnson’s saying “yes, yes” when asked if the beating could continue was a factor that had to affect the state of mind of the person who supposedly murdered him. (Id. at 18). The prosecutor then countered over the defense’s strenuous objection that “It is no defense to second degree murder or involuntary manslaughter, and you know what, the judge is going to tell you—[defense counsel] told you to consider it; don’t even consider it because you can’t consider it. It is not a defense . . . . You can’t even consider it in his intent or anything else. You just cannot.” (Id.) (emphasis original). Judge Griffith found that statement was error and the Trial Judge’s refusal to take any curative steps only compounded the error, for it “prevented the jury from considering crucial context when determining whether Williams acted with malice aforethought.” (Id. at 19-20).
Judge Griffith explained that under United States v. Watson, 171 F.3d 695, 700 (D.C. Cir. 1999), an erroneous statement need not have been deliberate or made in bad faith. To warrant reversal an erroneous statement requires a showing of substantial prejudice under United States v. Straker, 800 F.3d 578, 620(D.C. Cir. 2015). In turn, United States v. Gartmon, 146 F.3d 1015, 1026 (D.C. Cir. 1998), demands an examination of any curative steps taken by the trial court. (Slip Op. at 20).
Applying that test, the Government’s close was found prejudicial because it inaccurately “conflated two issues: (1) whether a victim’s consent can be a justification or excuse for the commission of a crime [it isn’t], and (2) whether it can bear on the presence or absence of an element of the crime [it may be].” (Id. at 21) (emphasis original). The distinction, Judge Griffith pointed out, is that “malice aforethought was an element of the crime with which Williams was charged; if he acted without this state of mind, he could not have been guilty of second-degree murder.” (Id. at 21). To illustrate the point, Judge Griffith postulated a counterfactual: “what if, instead of repeatedly affirming that ‘yes,’ he wanted to continue the initiation, Johnson had said ‘no,’ or ‘stop’? Surely this evidence would point in favor of a finding that Williams consciously disregarded an extreme risk of death or injury.” Thus “Johnson’s behavior was highly relevant—indeed, crucial—in determining whether Williams was guilty of murder or manslaughter. As such, Williams was entitled to have the jury consider that evidence.” (Slip Op. at 23) (citing quoting 5 ORFIELD’S CRIMINAL PROCEDURE UNDER THE FEDERAL RULES § 30:23 (West 2016) (“Intent is a question of fact which must be submitted to the jury in the light of all relevant evidence.”). Instead “the government characterized as incorrect the defense’s statement that Johnson’s behavior—his ‘yeses’—was probative of Williams’s degree of recklessness, and further suggested to the jury that it could not consider this behavior for any purpose,” which was error. (Slip Op. at 24).
Looking to the context, even though the Government’s error was not a lengthy misstatement, “there is a very real chance that the statement led some jurors to believe they could not consider Johnson’s consenting behavior at all,” for the district court’s administration of the ‘consent is not a defense’ instruction, after the government inaccurately interpreted it, may well have left jurors with the mistaken impression that they could not consider Johnson’s repeated statements that he wanted the initiation to continue.” (Id. at 25). And “[b]ecause the statement was made by the government, it carried particular weight,” the more so because it was delivered in rebuttal and bore on a central issue in the case. (Id. at 25-26). And perhaps most significantly, both the prosecution and the Trial Judge had characterized as “close” the question of whether Williams had crossed the line from manslaughter to second degree murder. (Id.at 26). Under Circuit precedent “‘the danger that an error will affect the jury’s verdict’ increases significantly ‘in a case where the evidence at trial is conflicting.”” (Id. at 26-27) (quoting United States v. Smart, 98 F.3d 1379, 1392 (D.C. Cir. 1996)).
Concurring, Circuit Judge Kavanaugh described the dispute over the closing argument as “not a hard call.” Observing that “[t]he facts of the case fit the crime of involuntary manslaughter to a T,” he pointed out that “the Government charged Williams with second-degree murder, a more serious offense with much heavier punishment. The jury was instructed on both manslaughter and murder, and a critical issue for the jury to decide was whether Williams was guilty of manslaughter or murder. To decide between the two offenses, it was essential for the jury to understand the difference between the two crimes.” (Slip Op. at 1) (Kavanaugh, concurring).
Dissenting in part, Circuit Judge Henderson wrote that “the prosecutor misstated nothing. The district court’s charge was correct and balanced. And the evidence of guilt was powerful.” (Slip Op. at 1) (Henderson, J., dissenting in part). Of plain importance to Judge Henderson was Williams’s behavior: after stomping on Johnson, he told the other gang members not to take him to the hospital, Johnson’s obvious trauma notwithstanding. And in the aftermath of the beating, he collected $600 in cash “dues” in the gang’s treasury, reportedly stating that “‘if anybody was going to come for anybody first, they were going to come for him, and he needed [the money] to get out of the country.’” (Id. at 2).
Focusing on the close and its effect on the murder conviction, Judge Henderson wrote that the majority failed to appreciate the scope of the defense argument. As she saw it, defense counsel had “also argued, incorrectly, that Johnson’s ‘consent’ could negate Williams’s criminal intent.” (Id. at 5). When the prosecutor responded, she “did not tell the jurors that they could not consider Johnson’s ‘behavior’ or his ‘yeses.’ She said they could not consider his consent,” and “Johnson’s consent—his state of mind—had nothing to do with Williams’s perception of risk.” (Id. at 6-7) (emphasis original). As Judge Henderson summarized the threshold point of whether the close was error, “contrary to the majority’s recounting, the prosecutor did not say that the jury ‘could not consider [Johnson’s] behavior for any purpose.’” (Id. at 8) (emphasis original).
Nor in Judge Henderson’s view did Williams suffer prejudice in light of what she saw as the Trial Judge’s fair instructions (Id. at 10-18) and the strong evidence of Williams’s callousness and mens rea, including his repeatedly punching the hapless Johnson in the face, the repeated blows and kicking after Johnson had fallen to the ground, and the length that this brutal initiation had continued, all of which made this jump-in stand apart from the norm. (Id. at 18-21). Seen in this light, “[a] gang leader who had delivered a severe beating with eight other men for over six minutes would not—unless extremely reckless—rule out major trauma. A reasonable jury could easily infer that Williams intended a serious injury because that is, after all, the natural and probable consequence of a serious beating.” (Id. at 21) (citing United States v. Mejia, 597 F.3d 1329, 1341 (D.C. Cir. 2010)). This was all the more true if one considers “Williams’s depraved refusal of Johnson’s request for medical attention,” which Judge Henderson characterized as a “spectacularly mistaken” oversight by the majority, for it shed light on his intent in committing the underlying offense. (Slip Op. at 21).
A reader interested in the law governing closing arguments and instructions and the elements of homicide will find all three judges’ decisions thoughtful and instructive.
A.J. Kramer, Chief Federal Defender, and John Jeffress, who recently left the Federal Defender’s Office and joined Matt Kaiser’s firm, won a very difficult appeal in a tragic and emotionally charged case.
–Steve Leckar, of counsel to Kalbian Hagerty LLP, enjoys following and occasionally arguing in the D.C. Circuit.