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April 3, 1991


Appeal from the Superior Court of the District of Columbia; Hon. Robert A. Shuker, Trial Judge

Belson and Farrell, Associate Judges, and Gallagher, Senior Judge.

The opinion of the court was delivered by: Belson

Appellant Wayne Powers entered three pre-indictment guilty pleas to one count of assault with intent to rob while armed, D.C. Code §§ 22-501, -3202 (1989), and two counts of armed robbery, D.C. Code §§ 22-2901, -3202 (1989). *fn1 Powers' only contention on appeal is that in sentencing him the trial Judge violated his right to due process of law by considering unreliable information submitted by the government concerning an uncharged fourth robbery set forth in its Memorandum in Aid of Sentencing. We affirm.


We begin by setting forth the facts underlying the three charges to which Powers pleaded guilty. At approximately 10:45 a.m. on March 21, 1989, Powers hailed a taxicab driven by Mr. Edward Brooks and directed him around the corner onto the 1400 block of Morris Road in Southeast, Washington, D.C. When Mr. Brooks turned the corner, Powers placed a knife to Mr. Brooks' neck and said "give me your money and get out, old man." Powers then took thirteen dollars from Mr. Brooks' breast pocket whereupon Mr. Brooks jumped out of the cab. Powers drove away in the cab and abandoned it in the 2100 block of 14th Street, Southeast.

On March 24, 1989, before 11:40 a.m., Powers entered the taxicab of Jean Sabbat at the Bethesda, Maryland Metro station. Although Powers did not give an exact address, he asked to be taken to Fifty-Third and Dix Streets, Northeast, Washington, D.C. Upon reaching this area Powers, who was in the backseat of the cab, yoked Mr. Sabbat around the neck and at knife point demanded his money and valuables. Powers stabbed Mr. Sabbat in the chest, forced him from the cab, and drove and abandoned it in the 2300 block of Green Street, Southeast.

Two days later, on March 26, 1989, at approximately 11:40 p.m., Powers once again hailed a cab, this time driven by Edward Jones. After an unrelated female passenger exited the cab, Powers directed Mr. Jones to Seventeenth Place and Erie Street, Southeast, Washington, D.C. Powers, sitting in the front passenger seat, attempted to rob Mr. Jones at knife point when he reached Powers' destination. Mr. Jones, after sustaining an injury to his forehead from Powers' knife, pulled a pistol and shot toward Powers. Powers received four gun shot wounds as he struggled for the gun. When the police arrived on the scene they found Mr. Jones and Powers still struggling for control of the gun in the front seat of the cab.

On May 12, 1989, Powers pleaded guilty to committing the Brooks armed robbery, the Sabbat armed robbery, and the Jones assault with intent to rob while armed, and in exchange the government agreed not to prosecute Powers for three related charges arising from these incidents, for two other cab driver robberies that occurred during this same period, or for several other charges including another robbery and four counts of assault on police officers.

The government submitted a Memorandum in Aid of Sentencing to the trial court prior to the sentencing hearing. In it the government presented information concerning Powers' criminal record, the seriousness of the crimes to which he pleaded guilty, and the two uncharged robberies. The memorandum urged the trial Judge to impose "a series of consecutive life sentences in light of the violent nature of the crimes and Powers' long criminal history." Unpersuaded, the Judge imposed three consecutive sentences of eight to twenty-four years.

The first uncharged robbery occurred on March 17, 1989, at an unspecified hour and involved cab driver George Watties. According to the government's memorandum, Powers entered the rear seat of Mr. Watties' cab and asked to be taken to Thirty-Seventh Street, Southeast, Washington, D.C. When Mr. Watties reached the 3700 block of Bangor Street, Southeast, Powers ordered Mr. Watties to stop, whereupon Powers yoked Mr. Watties about the neck, demanded his money and repeatedly stabbed him. Powers forced Mr. Watties from the cab and drove away. Mr. Watties' cab was later recovered in the 2300 block of Green Street, Southeast. The government urged the trial court to consider the Watties offense when passing sentence because the modus operandi of the robbery matched almost precisely that of the Sabbat robbery and Mr. Watties' cab was abandoned in the same block as was Mr. Sabbat's cab. Mr. Watties was unable to make a positive identification of his assailant.

The second uncharged robbery occurred on March 21, 1989, at 12:20 p.m., the same day Powers robbed Mr. Brooks. The government's memorandum stated that Powers, after entering Mr. Allen West's cab and directing him to 324 Fifty-Sixth Street, Southeast, Washington, D.C., menaced Mr. West with a knife, took loose money, and drove away in his cab. The memorandum also stated that Powers told Mr. West that Powers was the individual who had stabbed a cab driver the previous week. The government inferred that Powers was referring to the robbery of Mr. Watties.

During plea negotiations, Powers denied his involvement in the Watties robbery but never contested the allegations concerning the West robbery. Prior to sentencing on August 15, 1989, Powers' counsel submitted a letter to the trial court that contained, among references to other presentence matters, Powers' denial of his participation in the Watties' incident and his argument opposing the government's use of uncharged crimes in its Memorandum in Aid of Sentencing. In the letter, however, neither Powers nor his counsel disputed Powers' involvement in the West robbery.

Powers' counsel acknowledged at the sentencing hearing that the trial Judge could consider a wide range of information when sentencing but maintained that Powers did not commit the Watties robbery and expressed concern with the government's focus on this uncharged crime in its memorandum. Responding to Powers' concerns, the trial Judge stated, "I know the law. I know how to weigh things that have not been adjudicated, that are only allegations, and that are contested. And, I don't think it is improper for them to be raised. I think it is important that I put them in the right ...

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