The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
By verdict returned June 1, 2007, Larry Gooch was found guilty of a narcotics conspiracy, participation in a Racketeer Influenced Criminal 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. His counsel filed a Motion to Vacate the Judgment of Guilt on August 10, 2007*fn1 [Dkt. # 844] ("Def.'s Mot."), which was opposed by the Government on September 6, 2007 [Dkt. # 850]. With sentencing set for September 14, 2007, the Court issued an Order on September 11, 2007 [Dkt. # 852], denying the motion. This Memorandum Opinion explains the Court's rationale for that Order.
I. Severance of the Cunningham-Lane Murders
Mr. Gooch was convicted of the murders of William Cunningham and Christopher Lane on or about August 1, 2000, in connection the burglary of Mr. Cunningham's apartment. See Verdict Form [Dkt. # 812] ("Verdict") at ¶ III, Counts 112 & 113. He argues, as he did in a pre-trial motion to sever, that the evidence related to these murders had no connection to the larger narcotics and RICO conspiracies. Before trial, the Government "'proffer[ed], albeit vaguely, that trial testimony [would] demonstrate that Messrs. Gooch, Dorsey, and J. Robinson 'banded together as early as 1997 to commit crimes to further the goals of the drug trafficking enterprise,' suggesting that the Cunningham/Lane home invasion and murders are illustrative of that joint activity.'" Order Denying Motion to Sever [Dkt. # 692] at 31. At trial, however, the Government's main witness, Herbert Jones, testified that he heard that Mr. Cunningham and others planned to rob him, that it made him mad, and that he planned to rob Mr. Cunningham instead (with the help of Messrs. Gooch, Dorsey, and Robinson) "'[b]ecause I got my feelings.'" Trial Transcript ("Tr.") of 4/12/07 (a.m.) at 88. In other words, Mr. Jones wanted to protect his own reputation by robbing Mr. Cunningham before Mr. Cunningham could rob him. See Tr. of 4/12/07 (p.m.) at 31.
Mr. Gooch argues that "no evidence connected the Cunningham-Lane crimes and the other alleged crimes" other than the commonality of participants. Def.'s Mot. at 4. It was, at best, "a tenuous connection suggested prior to trial whose flimsiness became stark when put to the test at trial." Id. at 5 (quoting United States v. Nicely, 922 F.2d 850, 854 (D.C. Cir. 1991)). Mr. Gooch was not convicted on Counts 118 and 119, which charged him with VICAR, 18 U.S.C. § 1959, in relation to the murders of Messrs. Cunningham and Lane. He argues that his acquittal means that the only connection between the murders and the M Street Crew (and its narcotics/RICO conspiracies) has evaporated. Inasmuch as "[t]he [G]overnment's case for [Mr.] Gooch's guilt of the VICAR murder of [Messrs.] Cooper and Miller, and the state law murder of [Messrs.] Cunningham and Lane, was not strong," Mr. Gooch argues that he was terribly prejudiced.
The [G]overnment's case for [Mr.] Gooch's murder of [Messrs.] Cunningham and Lane depended on a single, substantially discredited cooperator who had given multiple versions of events, combined with meager support from two other witnesses. The [G]overnment did not have a single independent eyewitness or shred of forensic evidence for the Cunningham-Lane crimes. The [G]overnment's case for [Mr.] Gooch's murder of [Mr.] Cooper and [Ms.] Miller was even weaker, resting on the evidence of two impeached cooperators and one of two fingerprints present on the murder weapon. The [G]overnment's case for the VICAR murder of [Mr.] Cooper and [Ms.] Miller was so weak as to be almost non-existent. By combining unrelated offenses, the [G]overnment was able to bolster its weak evidence of each individual charge by the strength of the evidence as a whole.
Wishing does not make a thing so. Counsel's argument is the best that might be made from a strong record of guilt. The guilty verdicts against Mr. Gooch for the murders of Messrs. Cunningham and Lane rested, quite properly, on the essentially uncontested testimony of Mr. Jones that he enrolled Mr. Gooch and his friends to rob Mr. Cunningham, see Tr. of 4/12/07 (a.m.) at 87-88, and that Mr. Gooch shot Mr. Cunningham in the face at the doorway to his apartment, killing him. See id. at 99. Mr. Jones also testified that when Mr. Lane tried to hide in the kitchen area of the apartment "Pinball"*fn2 shot Lane in the back of the head. See Tr. of 4/12/07 (p.m.) at 9-10 & 27. Mr. Gooch's cross examination of Mr. Jones focused on attempting to disconnect the M Street Crew, and its narcotics and RICO conspiracies, from the Cunningham/Lane murders to avoid the VICAR counts. See id. at 32-69; Tr. of 4/16/07 (a.m.) at 3-119; Tr. of 4/16/07 (p.m.) at 19-61. It did not shake Mr. Jones's basic testimony about the commission of the crimes. Indeed, evidence from the mother of two of Mr. Gooch's children (Bonita Jones), and her sister (Lakisha Jones), as to Mr. Gooch's activities on the night of the murders also supported the jury verdict. See, e.g., Tr. of 4/11/07 (a.m.) at 96-134; Tr. of 4/11/07 (p.m.) at 3-102. Similarly, the evidence as to Mr. Gooch's guilt on the Miller/Cooper murders was solid.
Acquittal of the VICAR counts related to the Cunningham/Lane murders does not mean that there was no logical nexus between those murders and the racketeering enterprise: it just means that the jury did not find that the Government proved its case on those counts beyond a reasonable doubt. The narcotics conspiracy was alleged to have started as early as 1997 and, indeed, the Government produced evidence on which Mr. Gooch was convicted of the narcotics conspiracy "from on or about at least 1997 and continuing until November 2004." Verdict Form ¶ I [Dkt. # 812]. Similarly, the jury found sufficient evidence to convict Mr. Gooch of a "pattern of racketeering activity from at least 1997 and continuing until November 2004." Id. ¶ II. Further, the jury entered a special finding that the felony murders committed by Mr. Gooch, see id. ¶ III, were "related to the activities of the racketeering enterprise." Id. ¶ II. The evidence persuaded the jury, beyond a reasonable doubt, that Mr. Gooch was guilty of both the narcotics and RICO conspiracies from sometime in 1997 to 2004, a period that clearly encompassed the August 2000 burglary that resulted in the murders of Messrs. Cunningham and Lane. The Motion to Vacate the Judgment as to the murders of William Cunningham and Christopher Lane will be denied.
II. Testimony on the Sentencing Guidelines After Booker
During the trial, witnesses cooperating with the Government testified that they hoped to receive a motion for a downward departure under U.S. Sentencing Guidelines § 5K1.1. "To expose the bias inherent in such an expectation, [Mr.] Gooch sought to cross-examine cooperating witnesses on the structure of the guidelines, the sentences under the Guidelines, and the benefits of a 5K motion." Def.'s Mot. at 8. The Court limited such questioning. For instance, Herbert Martin signed his plea agreement in March 2004, and in January 2005 the Supreme Court determined that the Guidelines could not be both constitutional and mandatory. United States v. Booker, 543 U.S. 220 (2005). The remedy was to make the Guidelines advisory. Id. at 245-46 ("So modified, the [Sentencing Reform Act] makes the Guidelines effectively advisory. It requires a sentencing court to consider Guidelines ranges, but it permits the court to tailor the sentence in light of other statutory concerns as well.") When Mr. Gooch attempted to have Mr. Martin explain that legal history, the Court told counsel at the bench, "I don't think that you can have this witness who spent all of that time in jail necessarily answer the legal question what are the guidelines, were they mandatory then and are they mandatory now." Tr. of 2/13/07 (a.m.) at 91. The Government expressed "a standing objection to asking this witness to try to give his legal opinion as of [sic] the impact of all of the Supreme Court case law," to which James Connell, counsel for Mr. Gooch, responded, "I won't do that." Id. Later, however, defense counsel asked Mr. Martin:
Q: And you understand that there have been some changes in the law which change the way that the sentencing guidelines are applied, correct?
A: What do you mean by that? I don't understand the question.
Mr. Dominguez: We object thereafter.
The Court: Right. I just --
Mr. Connell: That's all right. We'll do that part through ...