Appeals from the Superior Court of the District of Columbia (Hon. Mary Ellen Abrecht, Trial Judge), (Nos. F-4374-98 F-2001-98 F-2332-98 F-4375-98 and F-2940-98).
The opinion of the court was delivered by: Ruiz, Associate Judge
Resubmitted February 24, 2009*fn1
Before WASHINGTON, Chief Judge,*fn2 RUIZ, Associate Judge, and KING, Senior Judge.
The five coappellants in this case, Luis A. Pérez, Carlos A. RoblesBenevides, Santos F. Bonilla, José R. Salamanca, and Oscar Villatoro, challenge their convictions arising out of a brutal murder and various assaults, in which an unidentified homeless man was beaten and a passerby who intervened to stop the beating of the homeless man was beaten and stabbed to death. A second passerby who then intervened to stop the assault on the first passerby was also assaulted. An eyewitness was later threatened and assaulted in an effort to intimidate her into not testifying.
Appellants challenge their convictions on multiple grounds, which can be grouped into the following eight claims: (1) the government abused the grand jury system to intimidate alleged eyewitnesses and suborned perjured testimony favorable to the government; (2) the government violated their right to due process by not disclosing to defense counsel evidence and witnesses that could have undermined the credibility of government witnesses; (3) the trial court improperly admitted hearsay statements in a joint trial under the exception for statements against penal interest; (4) the trial court should have granted their requests for severance because they were prejudiced by being tried jointly; (5) the prosecutor engaged in improper argument by alluding to the fact that the defendants would not testify, by using inflammatory language, and by making references to the defendants' gang membership; (6) the trial court improperly refused to grant a mistrial because some of the jurors were biased against them; (7) the trial court improperly denied the § 23-110 motions of two of the appellants, whose counsel, they claim, were constitutionally ineffective; and (8) the aiding and abetting instruction we held erroneous in Wilson-Bey, supra note *, 903 A.2d at 818, was given to the jury in their trial and tainted their convictions for first-degree murder. We agree that the erroneous aiding and abetting instruction constituted plain error and reverse the first-degree murder convictions of appellants Robles-Benevides, Bonilla and Villatoro, and remand to the trial court with instructions to vacate their first-degree murder convictions and enter convictions and resentence them for murder in the second degree. On remand, the trial court should consider whether Pérez's conviction for first-degree murder while armed based on aiding and abetting liability should be permitted to stand. We conclude that appellants' other challenges, singly and in the aggregate, do not require reversal, and we affirm their remaining convictions.
I. The Evidence Presented at Trial
Based on the testimony of four eyewitnesses,*fn3 each one of whom knew appellants personally, the government adduced the following evidence at trial. On the evening of March 14 and into the early hours of March 15, 1998, appellants were at the Diversité nightclub at 14th and Q Streets, Northwest. Appellants were members of a gang called "Mara R." At one point, government witness José Benítez, who was a fellow Mara R gang member, saw appellant Oscar Villatoro flash a gang sign in the nightclub at members of a rival gang, Mara Salvatrucha, commonly known as "MS-13." A fight then broke out in the night club. The night club operator shut the club down early as a result, and everyone was forced out onto the streets at approximately 3:00 a.m., March 15. Hostilities between the rival groups apparently ceased at that point, but the Mara R gang's aggressive attitude persisted.
Once outside, Benítez saw appellant Villatoro "jump" an unidentified, homeless man, and start to beat him up.*fn4 Benítez heard appellant Pérez shout "R, R" while making his gang's hand signal, and joined Villatoro in the assault.*fn5 The homeless man tried to escape, but ran into appellant Salamanca, who hit him, knocking him to the ground. Gang members Benítez, Navarette,*fn6 and "Abuelo"*fn7 joined in the assault by kicking the homeless man as he lay on the ground.
Greg Alexander was driving his maroon Oldsmobile on 14th Street past this scene with his two cousins and a friend, Warren Helm. When they noticed the assault, Alexander stopped the car and the four occupants got out to intervene on the homeless man's behalf. The attackers, however, left the homeless man and turned toward the four men. The intervenors retreated to the car when they saw that some of the men in the group had knives. The group followed them, throwing rocks and bottles at the Oldsmobile,*fn8 and surrounded Helm before he could get into the car. Alexander drove off with his two cousins, while Helm tried to escape by running north on 14th Street.
Benítez testified that he chased Helm on foot along with appellants Pérez and Salamanca, and others.*fn9 As they gave chase, Benítez saw appellant Bonilla driving his Honda north on 14th Street, with appellant Robles-Benevides and two other fellow gang members, Walter Velásquez ("Catinga")*fn10 and Douglas Ventura.*fn11 When the car reached Helm, Bonilla stopped the car and Robles-Benevides, Velásquez, and Ventura got out of the car.
It appeared to Benítez that when Helm saw Bonilla's car pull up, he initially thought they were strangers stopping to help him. Once they were out of the car, however, it became obvious they were not there to offer assistance: Robles-Benevides and Ventura started hitting Helm and Velásquez stabbed him. Benítez testified that Bonilla also got out of the car, but did not know what he did. When Helm tried to run away, Ventura grabbed him and threw him to the ground. Benítez testified that those who had been chasing Helm on foot arrived at that time and joined in the attack. Appellants Robles-Benevides and Pérez, along with Ventura, Navarette, and "Abuelo," all beat Helm. Benítez admitted that he also participated in the assault.
At that moment, another passerby became involved. Barry Hallner, who worked as a medical assistant, was driving home with friends along 14th Street when he saw a "gang of people" chasing Helm. He saw the group eventually encircle Helm, beat him, and throw him to the ground. Hallner stopped his car and approached the group with a flashlight, yelling for them to stop, which only seemed to infuriate the assailants. Hallner saw a man in a blue jacket, whom he identified later that morning as Robles-Benevides, "kick [Helm] so hard in the chest you could just feel it." When Hallner jumped into the crowd to defend Helm, somebody hit him and knocked the flashlight out of his hand. As Hallner bent down to retrieve the flashlight, the man in the blue jacket (RoblesBenevides) kicked him in the throat. When the gang started to flee, Hallner yelled to his friends in the car to call 911. Hallner approached Helm, who was lying on the ground, and saw that Helm's "intestines were hanging out of his stomach," and that he had had suffered "quite a number of stab wounds."
When Greg Alexander, who had driven around the block after fleeing the scene, came back to 14th Street, he saw Helm stabbed to death and an "older, white guy" (Hallner) standing over him.
Three other government witnesses corroborated various parts of Benítez's testimony. Appellant Luis Pérez's brother, José ("Chino") Pérez, saw a fight outside the club after it had closed. José Pérez testified that he saw a red car stop, and five African-American men came out of the car and approached the group fighting outside the nightclub. He then saw all but one of the men re-enter the car and drive off. José Pérez testified that the gang punched, kicked, and stabbed the man left behind (Helm). He saw Velásquez, Ventura, and "Abuelo" stab Helm. He saw his brother, appellant Luis Pérez, along with appellants Villatoro and Robles-Benevides punch Helm, and saw government witness Benítez punch and kick him (as Benítez had admitted).
When Rosa ("China") García left the club, she saw appellant Villatoro across the street 8 arguing with a homeless man. She then walked north on 14th Street with her friends, Sandy Leonzo, Blanca Buruca, Mayra Rivera, and José ("Chino") Guevara.*fn12 At the intersection of 14th and Swann Streets (two and a half blocks north), she heard a "black male" crying out, "no, no, no." When she looked back, García saw Velásquez stabbing the man (Helm), and appellant Villatoro, along with Ventura, Benítez, and others, punch and kick Helm.*fn13 She also saw Bonilla inside a car with the doors open, watching and waiting. García testified that she drank only club soda at the nightclub, but that her vision was not good, and because she was not wearing her glasses, she had to squint ("blink") in order to see the assault that occurred half a block away. She further testified that later that same day (March 15), appellant Salamanca choked her and threatened to kill her if she cooperated with the police's investigation.
Hugo Alemán ("Loco Hugo") also testified for the government, although reluctantly. He initially testified that all he saw were some people running up 14th Street, but that he could not remember seeing the assault because he was very drunk. When the prosecutor confronted him with his grand jury testimony, Alemán acknowledged that he saw appellant Pérez hit a homeless man; that the gang threw bottles at a car; and that the car left one of its occupants behind. He affirmed that he had testified at the grand jury that appellant Salamanca, along with Ventura and Velásquez, took off with appellant Bonilla in a car, while others, including Villatoro and Pérez, pursued Helm on foot. Alemán affirmed that he had told the grand jury the names of Helm's assailants: Pérez and Benítez hit him; Villatoro pulled him to the ground and hit him; Robles-Benevides hit him while he was on the ground; Bonilla hit him, and went back to his car; and finally, Velásquez and Ventura made stabbing motions.*fn14 But Alemán then recanted his grand jury testimony by saying that he only saw the gang catch Helm, and that he did not see what happened next because he was drunk, too far away, and the group was huddled in a pile.
Officer Torres testified that Benítez, José Pérez (brother of appellant Luis Pérez) and appellant Robles-Benevides were detained on the scene. Appellants Bonilla, Pérez, Salamanca and Villatoro were arrested later pursuant to a warrant.
The defense offered two witnesses, as well as the testimony of appellants Bonilla, Salamanca, and Pérez. Mayra Rivera contradicted Rosa García's testimony. Rivera testified that when she and García left the nightclub on March 15, they caught a taxi and went home and saw nothing of the assault. Rivera also contradicted García's testimony that she had only had a club soda, saying that she had seen García drink four glasses of liquor at the nightclub.
Rivera testified that on two separate occasions the prosecutor called her to the U.S. Attorney's Office and pressured her to identify appellants, but that she refused to go before the grand jury. On cross-examination, the prosecutor reminded her that when he had shown her a picture of the deceased Helm, she started to cry, saying that "they were animals." Rivera explained that she named the assailants at the interview because the prosecutor "pressur[ed] me a lot," and threatened to "put me in jail." In court, Rivera did not identify appellants as the assailants.
Gilfredo López, who met Benítez and Robles-Benevides in jail, testified for RoblesBenevides. He testified that Benítez told him that he, Benítez, had given Velásquez the knife he used for the stabbing, but that the government had pressured him to say that it was Robles-Benevides who gave Velásquez the knife.
Eugene Wimbush, who was working as a security guard at the Diversité nightclub, testified that when he saw a crowd beating up a homeless man, he broke up the fight and dispersed the crowd. He saw one African-American man and "about twelve" Hispanic men running up 14th Street.
Contrary to Benítez's testimony, Salamanca testified that he was not part of the group that chased Helm up the street on foot. Rather, he testified, he was asleep in Bonilla's car (Bonilla having offered to give him a lift home after the nightclub closed), and did not wake up until Bonilla later dropped him off at home.*fn15 He did corroborate, however, that Robles-Benevides, Velásquez and Ventura were in the car with him.
Salamanca admitted that he talked to Rosa García the following day, but denied choking or threatening her. His neighbor, Stanislao Robles-Fuentes, testified that he was an eyewitness to 11 this conversation and corroborated appellant Salamanca's version.*fn16
Appellant Bonilla took the stand and testified that, though he did give a ride to appellants Salamanca and Robles-Benevides, as well as others (Velásquez and Ventura), he had no idea at the time that they were pursuing Helm, or that they had knives with them when they entered his car. He had often given the men rides home, and thought he was merely doing so again. Bonilla admitted on cross-examination, however, that he had told the police that "when the two black guys ran off, they went and got their knives. I think they had their knives when they got in my car."
According to Bonilla, when they reached the corner of 14th and S Streets, Velásquez ordered him to stop the car. He complied, and Robles-Benevides, Velásquez, and Ventura got out of the car. Bonilla testified that he got out of the car only to close the doors that his passengers had left open, and tried to drive off immediately because he saw Velásquez "knifing" Helm. While he was waiting at a red light up the street, Velásquez returned to the car -- knife still in hand -- and ordered Bonilla to drive him to a gambling hall. Bonilla testified that although he did not want Velásquez in the car, he drove him out of fear of what he had just seen.
Appellant Luis Pérez also took the stand in his defense. Pérez testified that he had left the nightclub at 1:00 a.m., two hours before everything happened, and did not know of the assaults until he was arrested two months later, in June, for murder.
Appellants were indicted by the grand jury on June 17, 1998 on a number of charges related to the assaults on the homeless man, Helm, and Hallner; the murder of Helm; and threats on García. Trial began on October 27, 1998, and on November 6 the jury returned convictions on each of the appellants.
For the attack on the homeless man, each appellant was charged with one count of assault, pursuant to D.C. Code § 22-504 (1996 Supp.). The jury found Pérez, Villatoro and Salamanca guilty of this charge. The jury also found Bonilla and Robles-Benevides guilty, but the trial court granted a directed verdict of acquittal as to them, because it found that the government had not adduced any evidence to support the conviction.*fn17
For the killing of Helm, appellants Pérez, Villatoro, Bonilla, and Robles-Benevides were charged with conspiracy to assault and to commit murder,*fn18 in violation of D.C. Code §§ 22-105 (a), -2401, -3202 (1996 Supp.), as well as with first-degree premeditated murder while armed, in violation of D.C. Code §§ 22-2401, -3202 (1996 Supp.). The jury convicted all four appellants of these charges.
For kicking Barry Hallner when he tried to assist Helm, Robles-Benevides was charged with and convicted of assault with a dangerous weapon (shod foot), in violation of D.C. Code § 22-502 (1996 Supp.).
Salamanca was charged with and convicted of assaulting and threatening Rosa García, in violation of D.C. Code § 22-504 (1996 Supp.), and with obstruction of justice, in violation of D.C. Code § 22-722 (a)(3)(B) (1996 Supp.).
Appellants were sentenced in January 1999, to various periods of incarceration, after which each appellant filed a timely notice of appeal. (Nos. 99-CF-107, 99-CF-207, 99-CF-212, 99-CF-226, and 99-CF-257). For the assault on the homeless man, appellants Pérez and Salamanca were sentenced to 180 days of imprisonment, and Villatoro was sentenced to 100 days. Appellants Pérez, Robles-Benevides, Bonilla and Villatoro were sentenced to 20 to 60 months of imprisonment for their conspiracy convictions to be served concurrently with their 30 years to life sentence for first-degree murder. Salamanca was additionally sentenced to 90 days in work release for assaulting García, and 180 days of imprisonment for threats, to be served concurrently with 4 to 12 years for obstruction of justice.
In November 2001, Bonilla filed with the trial court a motion for a new trial, pursuant to Super. Ct. Crim. R. 33, based on newly-discovered evidence that the government had improperly subpoenaed and pressured witnesses and Brady violations.*fn19 The claim of newly-discovered evidence, supported by an affidavit, was that Hugo Alemán had been threatened by the government into testifying falsely before the grand jury. The government filed an opposition to appellant's motion in March 2002, proffering an affidavit from the prosecutor attesting that the government had not unduly coerced Alemán. Appellants claimed that the prosecutor abused the grand jury system and violated their due process rights by repeatedly issuing subpoenas to interview potential witnesses, paying witnesses even when they did not testify before the grand jury, and pressuring witnesses into testifying before the grand jury. In addition to abusing the subpoena power, appellants claimed that the government had violated Brady v. Maryland, 373 U.S. 83, 87 (1963), by withholding not only its coercive use of subpoenas but also the names of impeachment witnesses. This evidence, they claim, would have undermined the credibility of two important government witnesses, Hugo Alemán and Rosa García.
On June 18, 2002, the trial judge held a post-trial hearing on these motions and heard testimony from both Alemán and the prosecutor, Assistant United States Attorney ("AUSA") Anthony Asunción. The judge found that Alemán's post-trial recantation was incredible, and that AUSA Asunción had not abused the grand jury system or unduly coerced witnesses, nor had the government withheld evidence in violation of Brady. The court denied the motions for a new trial. Appellants then filed timely appeals from the trial court's denial of their new-trial motions and related § 23-110 claims. (Nos. 02-CO-1242; 02-CO-1205; 02-CO-1385; 01-CO-1019).
Appellants Villatoro and Salamanca filed § 23-110 motions claiming that they had received ineffective assistance from their trial counsel. The trial court denied their motions without a hearing, and appellants filed timely appeals. (Nos. 02-CO-1231; 02-CO-1253). As previously noted, see supra note *, following this court's limited remand in light of the government's belated disclosure of Rosa García's potential bias, appellants Pérez, Bonilla, Salamanca and Villatoro filed new § 23-110 motions for new trial. The trial court denied these motions after a hearing, and timely appeals were filed. (Nos. 06-CO-341; 06-CO-1164; 06-CO-1563; 06-CO-1170). All of the appeals have been consolidated. Moreover, appellants Robles-Benevides, Bonilla, and Villatoro added new claims of instructional error challenging their convictions for first-degree murder while armed as aiders and abettors following our decision in Wilson-Bey, supra note *, 903 A.2d at 818. We now consider, in turn, each of the arguments made by appellants.
A. Alleged Grand Jury Abuse and Subornation of Perjury by the Prosecutor
Appellants argue that the prosecutor corrupted the trial process by coercing witnesses into testifying falsely against them. They allege that the prosecutor improperly manipulated the grand jury process by serving subpoenas to force witnesses to come into the U.S. Attorney's Office for repeated questioning without presenting them before the grand jury, and by paying them witness fees even though they had not testified before the grand jury. Through these tactics, appellants claim, the prosecutor intimidated and wore down the witnesses into giving false testimony to the grand jury that was favorable to the government. While this argument also figures in appellants' claim of Brady violations (discussed infra), appellants argue that the government's abuse of the grand jury process resulted in false grand jury testimony from Hugo Alemán -- which the government then used to impeach Alemán when he would not implicate appellants at trial -- in contravention of the government's due process obligations under Giglio v. United States, 405 U.S. 150 (1972); Napue v. Illinois, 360 U.S. 264 (1959); and Mooney v. Holohan, 294 U.S. 103 (1935). For reasons that follow, we conclude that although the prosecutor's use of subpoenas and payment of fees intended for grand jury witnesses was improper, the trial court did not abuse its discretion in rejecting appellants' motions for new trial because the abuse did not lead to subornation of perjured testimony that was presented at trial by the prosecutor.
Appellants claim that the prosecutor issued grand jury subpoenas multiple times to Hugo Alemán in order to force him to appear at the U.S. Attorney's Office for questioning. Alemán initially told the prosecutor that he was drunk and saw nothing, but, appellants claim, the prosecutor harassed and threatened Alemán into changing his story to one more favorable to the government by issuing repeated subpoenas requiring him to return to the U.S. Attorney's Office, but did not present Alemán before the grand jury until he agreed to implicate appellants. In support of this claim, appellants produced affidavits not only from Alemán, but also from others -- Mayra Rivera, Blanca Buruca, Sandy Leonzo, and Erica García -- stating that they too were subpoenaed by the government multiple times and pressured to give testimony implicating appellants. When they refused to comply, the prosecutor did not present them before the grand jury.
At trial, Alemán reverted to his original story: that he had been drunk on the night in question. Although he did not deny seeing the assaults, he stated that he could not remember seeing them. When the prosecutor confronted him during direct examination with his grand jury testimony, Alemán affirmed having seen appellants participate in the assaults. Three years later -- in his affidavit in support of appellants' motion for a new trial -- Alemán recanted his grand jury testimony that he had reluctantly adopted at trial, reverting again to his original story. Alemán claimed in an affidavit that he had lied to the grand jury as a result of the prosecutor's coercive measures, that he had been drunk at the time of the assaults, did not see what happened, and had left in a taxi before the assaults occurred. The government filed an opposition to appellant's motion proffering an affidavit from the prosecutor attesting that the government had not unduly coerced Alemán.
During the post-trial hearing on the new trial motions, Alemán testified that he lied to the grand jury because he was "afraid . . . that they could put me in jail without having done anything." When asked how he managed to testify with such detail about what he did and did not see, he said he used information he had overheard from conversations among the lawyers at the U.S. Attorney's Office, and in some instances simply made up the details. He also testified that his memory of the grand jury testimony was fuzzy because he had suffered a blow to his head shortly before the 2002 post-trial hearing, an injury which had required hospitalization.
The trial prosecutor, AUSA Asunción, testified at the post-trial hearing that his logbook showed that he had five appointments with Alemán, but that he remembered only two of those meetings consisted of substantive conversation about the assaults. According to the prosecutor, because he knew from other witnesses that Alemán had been on the scene, but had not been involved in the assaults,*fn20 he had urged Alemán to testify to the truth, but denied that he had threatened Alemán with prosecution or provided Alemán with details about the assaults. AUSA Asunción explained that he did not present Alemán to the grand jury the first time he was subpoenaed because he had good reason to think that Alemán was lying when he said he did not remember seeing the assaults. The prosecutor did not recall how many additional subpoenas he served on Alemán. At their next substantive conversation, Alemán told the prosecutor that he had seen part of the assault on Helm. It was at that point that the prosecutor presented Alemán before the grand jury.
The U.S. Court of Appeals for the District of Columbia "has recognized that the term 'grand jury subpoena' is in some respects a misnomer, because the grand jury itself does not decide whether to issue the subpoena; the prosecuting attorney does." Lopez v. Dep't of Justice, 364 U.S. App. D.C. 274, 278, 393 F.3d 1345, 1349 (2005). As the court explained:
The prosecutor may issue the subpoena without the knowledge of the grand jury, but his authority to do so is grounded in the grand jury investigation, not the prosecutor's own inquiry. Federal prosecutors have no authority to issue grand jury subpoenas independent of the grand jury. . . . [We] also noted that "a grand jury subpoena gets its name from the intended use of the testimony."
Id. at 278-79, 393 F.3d at 1349-50 (quoting Doe v. DiGenova, 250 U.S. App. D.C. 274, 279 n.11, 779 F.3d 74, 80 n.11 (1985)).
In Durbin v. United States, 94 U.S. App. D.C. 415, 417, 221 F.2d 520, 522 (1954), the District of Columbia Circuit found an abuse of the subpoena power where the prosecutor caused a grand jury subpoena to be served, four times, requiring the person (later charged) to appear at the prosecutor's office on each occasion, without ever being presented to the grand jury. "Instead, appellant was taken each time to the office of the United States Attorney where he was questioned by the Assistant . . . . [T]he Assistant admitted that the reason he did not take appellant before the grand jury was because he was not satisfied with appellant's statement." Id. at 416, 221 F.2d at 522. The court concluded that the law did not support the use of the grand jury subpoena "as a compulsory administrative process of the United States Attorney's Office," and that "[i]t was clearly an improper use of the District Court's process for the Assistant United States Attorney to issue a grand jury subpoena for the purpose of conducting his own inquisition." Id. at 417, 221 F.2d at 522 (citing In re National Window Glass Workers, 287 F. 219, 225 (N.D. Ohio 1922) ("The process by which witnesses are compelled to attend a grand jury investigation is the court's process and not the process of the grand jury, nor of the district attorney.")). The Durbin court further concluded that it was not a sufficient justification for the prosecutor to argue that he had a duty to be satisfied that the witness would testify truthfully before placing the witness before the grand jury. See id.*fn21
Following Durbin, the U.S. District Court for the District of Columbia has enjoined the U.S. Attorney from sending witnesses a "summons" or any other request to appear for questioning that is designed to look like a subpoena. See United States v. Thomas, 320 F. Supp. 527, 530 (D.D.C. 1970).
Although we have not previously been presented with this issue, we note that the Superior Court has followed the D.C. Circuit's analysis, and held that "the grand jury subpoena cannot be used to compel attendance anywhere but at a grand jury proceeding." In re Grand Jury Subpoenas to Witness X, SP-2802-00, slip op. at 4-5, 7 (D.C. Super. Ct. Oct. 23, 2001) (King, C.J.) (citing Durbin, 94 U.S. App. at 417, 221 F.2d at 522, and M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971)).
In addition to the D.C. Circuit, other federal appellate courts have similarly held that it is improper for a prosecutor to use the subpoena power to secure a potential witness for investigatory questioning. See United States v. Wadlington, 233 F.3d 1067, 1075 (8th Cir. 2000) (holding it to be an "improper use of grand jury subpoenas" for the prosecutor to have brought witnesses in from out of state a day ahead of their scheduled grand jury testimony in order to question them extensively beforehand); United States v. Villa-Chaparro, 115 F.3d 797, 804 (10th Cir. 1997) ("Undoubtedly, the government's practice of using the court's subpoena power to compel witnesses to attend ex parte interviews is improper. Courts have consistently interpreted FED. R. CRIM. P. 17(a) to permit the issuance of subpoenas only to compel attendance at formal proceedings such as hearings and trials."); United States v. LaFuente, 991 F.2d 1406, 1411 (8th Cir. 1993) ("The practice of using trial subpoenas to compel witnesses to attend pretrial conferences is improper under Rule 17 of the Federal Rules of Criminal Procedure" (citing several federal cases holding that subpoenas may only be issued to compel attendance at a formal proceeding, such as a grand jury)); United States v. Elliott, 849 F.2d 554, 557 (11th Cir. 1988) ("The court's subpoena power may not . . . be used by the United States Attorney's office as part of its own investigative process."); United States v. DiGilio, 538 F.2d 972, 985 (3d Cir. 1976) (stating that grand jury subpoenas may not be issued to facilitate interrogation by prosecutor).
We adopt the views of the D.C. Circuit*fn22 and other federal appellate courts that the use of subpoenas intended for grand jury witnesses for the purpose of prosecutorial investigation is improper. We note that it is also improper for the government to pay fees to witnesses called to the U.S. Attorney's Office solely for prosecutorial interrogation. Under 28 U.S.C. § 1821, witnesses in federal court are to be paid a fee only for attending court or a deposition. Id. at (a)(1). By statute, "[t]he fees . . . to be paid any witness attending in a criminal case in the Superior Court of the District of Columbia shall be the same as those paid to witnesses who attend before the United States District Court for the District of Columbia." D.C. Code § 15-714 (a) (2001); see Super. Ct. Crim. R. 113 (a)(providing fees for witness "attending Court or a deposition pursuant to any rule or order of a court"). Moreover, the regulations of the Department of Justice specifically prohibit fees paid for "information or investigative proceedings conducted by a prosecuting attorney for the purpose of determining whether information or charge should be made in a particular case." 28 C.F.R. § 21.1 (c); see id. at § 21.4.
We do not mean to imply that prosecutors may not interview witnesses prior to their appearance before a grand jury in order to prepare the witness for giving testimony, provided there is no intimidation or abuse of the grand jury subpoena process for the purpose of conducting discovery. See In re Grand Jury Proceedings (PHE, Inc.), 640 F. Supp. 149, 153 (E.D.N.C. 1986) (holding it proper for the U.S. Attorney to "'interview witnesses before taking them to the grand jury in order to eliminate unnecessary material before the grand jury and save time of the grand jurors'" (quoting United States v. Mandel, 415 F. Supp. 1033, 1039 (D. Md. 1976) (holding prosecutor did not abuse process when he subpoenaed five witnesses for interviews, but did not have them testify before the grand jury because their testimony was cumulative), rev'd on other grounds, 591 F.2d 1347 (4th Cir. 1979))). While the prosecutor may organize the testimony of potential witnesses in order to present the government's case to the grand jury in an orderly and comprehensible manner and need not present all potential witnesses to the grand jury, "[t]he prosecutor may not conduct [preliminary] interviews for an improper purpose such as to harass witnesses or as a means to conduct criminal or civil discovery." In re Grand Jury Proceedings (PHE, Inc.), 640 F. Supp. at 153 (citing United States v. (Under Seal), 714 F.2d 347, 349 (4th Cir.), cert. dismissed, 464 U.S. 978 (1983)).
There was evidence in this case that the prosecutor caused several subpoenas to be served on Alemán, and conducted at least five interviews before presenting him to the grand jury.*fn23 The prosecutor's repeated use of the subpoena power in this case would therefore be considered abusive.*fn24 Moreover, Alemán testified that he received payments of "20 or 40 dollars" for each day he came to the U.S. Attorney's Office.*fn25 In denying appellants' motions for new trial, the court assumed that Alemán had been intimidated by the repeated subpoenas, but concluded that appellants failed to show any significant prejudice to them caused by any abuse of the subpoena power by the prosecutor:
Since the government submitted no affidavits contradicting the allegations of any witness other than Hugo Aleman, the Court accepts as true the witness affidavits about their contacts with the prosecutor. Of all the witnesses alleging that the prosecutor pressured witnesses to lie and that the prosecutor misused the subpoena power, no one except Hugo Aleman claims to have actually lied at trial. The only corruption of the trial specifically alleged is subornation of Aleman's alleged perjury, which the defendants have utterly failed to prove. Thus, the defendants show no nexus between the intimidation and the evidence at trial.
The trial court's conclusion that there was "no nexus" was based on its determination that Alemán "was telling the truth before the grand jury" and that his "current claim that he made up the details of his grand jury testimony is incredible." The court based its assessment on finding that Alemán's grand jury testimony had key indicia of truthfulness, specifically that Alemán (1) candidly admitted that he had been drinking; (2) saw some details but not others; (3) did not realize that night that he had witnessed a murder because he left before the attack was over; and (4) testified to seeing some of his acquaintances involved in the attack, but not others. The trial court noted that Alemán's testimony did not unequivocally help the government's case (for example, he contradicted other government witnesses by saying that only appellant Pérez had been involved in the assault on the homeless man), yet at the same time his was the only testimony that Bonilla actually hit Helm, a fact to which no other witness had attested. Because Alemán's grand jury testimony did not simply parrot what others had said, or fully implicate everyone the government sought to charge, the trial court did not credit his blanket recantation made three years after trial, following a recent serious head injury. Indeed, the trial court found his blanket recantation "nonsensical," because "[t]o almost every question about whether a particular statement to the grand jury was true or false, he answered that it was false even when his testimony had been that he had not seen something." Specifically, when Alemán was asked if his grand jury testimony was true -- that he could not see whether appellant Pérez attacked the homeless man -- he simply said it was false (implying that he could see Pérez attacking the homeless man, although he also testified that he could not implicate any of the appellants in the assaults). The trial court found that Alemán had been a reluctant government witness who was pressured to testify before the grand jury, but not to lie. As a result, the trial court denied the motion for a new trial based on Alemán's recantation.
"We will reverse the court's ruling on the credibility of the trial testimony and recantation only if it is wholly unsupported by the evidence." Godfrey v. United States, 454 A.2d 293, 301 (D.C. 1982). This court therefore reviews the trial court's findings only for clear error. Moreover, "only if the court credits the recantation, must it then apply one of the tests traditionally used to evaluate jury impact . . ." sitting as a "thirteenth juror."*fn26 Id. at 299. Like the trial court in Godfrey, the trial court here reasonably based its rejection of Alemán's recantation on detailed factual findings after seeing the witness testify at trial and at the post-trial hearing. "Any 'factual finding anchored in credibility assessments derived from personal observations of the witnesses is beyond appellate reversal unless those factual findings are clearly erroneous.'" Hill v. United States, 664 A.2d 347, 353 n.10 (D.C. 1995) (quoting United States v. McNeal, 955 F.2d 1067, 1072 (6th Cir. 1992)).
At its heart, appellants' argument assumes, without actually proving, that the truth lies in Alemán's original story to the prosecutor that he saw nothing of the events in question, or at least could not remember what he saw because he was drunk. The only evidence appellants have offered is Alemán's belated recantation and his claim, corroborated by affidavits from others,*fn27 that the government pressured him and others into testifying falsely. The trial court, however, carefully weighed this evidence and evaluated the credibility of the witness. We cannot say, therefore, that on this record it was clearly erroneous for the trial court to have credited Alemán's grand jury testimony over his recantation.
Moreover, it does not necessarily follow, as appellants would have us conclude, that because Alemán testified under pressure that he must have lied. Appellants ignore that Alemán had as much reason, if not more, to fear from their retaliation as from the prosecutor.*fn28 It is therefore far from obvious that Alemán lied before the grand jury and at trial, but told the truth in his belated recantation.
Finally, we doubt that any abuse of process tainted appellants' trial. Defense counsel were able to present evidence to the jury of the prosecutor's pressure tactics. Just as she claimed in her 2002 affidavit in support of the motions for a new trial, Rivera testified at trial that the prosecutor had pressured her into lying, had threatened her with jail and the loss of her child and her job, and that a detective had "screamed" at her. Gilfredo López also testified that government witness Benítez told him that the government had pressured him into saying falsely that appellant Robles- Benevides gave Velásquez the knife. Finally, although Alemán's grand jury testimony, which was admitted into evidence, did not disclose that he came in for repeated questioning under subpoena, it did show the jury that he had never been firm about his eyewitness testimony; rather Alemán had always wavered between admitting that he did see the assaults or backtracking that he did not see the crime because he was drunk. Therefore, given that the jury saw that Alemán was impeached by the prosecutor with his grand jury testimony and heard from Rivera about the threats she received from the prosecutor, neither Alemán's post-trial testimony nor the affidavits filed with the motion for a new trial disclosed anything significantly new about prosecutorial pressure that had not already been presented to the jury at trial. Appellants were therefore not prejudiced by counsel's lack of knowledge at the time of trial that the government had repeatedly subpoenaed Alemán. Because appellants have failed to show abuse of process on the part of the prosecutor that actually suborned perjury against them, or otherwise prejudiced their ability to present a defense at trial, neither reversal of their convictions nor a new trial is warranted. See Wadlington, 233 F.3d at 1075 (declining to reverse for abuse of subpoena power because there was no resulting prejudice).
B. Brady Disclosure Obligation
Appellants Bonilla, Villatoro and Robles-Benevides claim that the government violated their due process rights by failing to turn over in a timely manner all exculpatory information in its possession. Specifically, they complain that the government failed to disclose before trial: (1) Alemán's conflicting statements to the prosecutor; (2) Alemán's statements to the grand jury that he was too drunk to recall the events on the night of March 14; (3) statements from Sandy Leonzo and Mayra Rivera that Rosa García had in fact drunk a large amount of alcohol that evening and had left with them in a cab before the assaults occurred; and (4) Rosa García's false statements to the prosecutor about her immigration status. In addition, Pérez claims that the prosecutor never disclosed a pending child neglect proceeding against Rosa García that would have biased her in favor of the government.
"[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady v. Maryland, 373 U.S. 83, 87 (1963). "There are three components of a true Brady violation: [t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-82 (1999). "[T]here is never a real 'Brady violation' [however] unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict." Id. at 281.
1. Hugo Alemán's Conflicting Statements and Grand Jury Testimony
Appellants contend that the government unlawfully withheld exculpatory as well as impeaching evidence when it failed to turn over, prior to trial, Hugo Alemán's statements to the grand jury that because he had been drunk at the time, he could not remember seeing any of the assaults. After trial had started, but just before Alemán took the stand to testify, the government gave defense counsel a copy of the transcript of Alemán's grand jury testimony, which showed that Alemán had told the grand jury that at two different meetings, including when he first spoke with the prosecutor, he had said that he could not remember seeing anything because he was drunk. He also told the grand jury, however, that he had been lying when he had claimed no memory of the assaults. Asserting that he was now telling the truth, Alemán testified to the grand jury that he saw appellants assault Helm and the homeless man.
At trial, during direct examination, the government introduced Alemán's grand jury testimony inculpating appellants after he reverted to his original story that he could not remember anything about the assaults. Following the government's direct examination, Robles-Benevides requested and was granted a recess to review the grand jury transcript he had just received. After a twenty-five minute recess, Bonilla's counsel cross-examined Alemán, followed by counsel for Villatoro (no other counsel chose to cross-examine Alemán). On cross-examination, Alemán repeatedly said that he had been drinking that evening, and that his memory of the events was impaired. Neither defense counsel, however, cross-examined him regarding his prior testimony before the grand jury when he initially denied any knowledge of the assaults, and then repudiated that claim. Instead, Bonilla's counsel was able to elicit testimony from Alemán that excluded Bonilla from the assault on Helm. On re-direct examination, the prosecutor brought out Alemán's grand jury testimony that he had originally told prosecutors that he had been too drunk and could not remember the assaults.
Appellants argue that the government should have disclosed the grand jury transcript before trial, including the information about Alemán's prior statements claiming he could not remember the assault, and that this belated disclosure right before Alemán testified at trial left counsel too little time to investigate the facts and prepare their cross-examination of the witness.
We are repeatedly confronted with complaints of tardy disclosure of exculpatory material, and we cannot emphasize too strongly that, unlike the obligation under the Jencks Act, 18 U.S.C. § 3500 (2000),*fn29 to turn over to the defense prior statements of a government witness before that witness testifies on direct examination, see id. at (b), for purposes of impeachment, see Jencks v. United States, 353 U.S. 657, 668-69 (1957), the due process obligation under Brady to disclose exculpatory information is for the purpose of allowing defense counsel an opportunity to investigate the facts of the case and, with the help of the defendant, craft an appropriate defense. See Edelen v. United States, 627 A.2d 968, 970 (D.C. 1993) ("[I]t is now well settled that the prosecution must disclose exculpatory material at such a time as to allow the defense to use the favorable material effectively in the preparation and presentation of its case . . . ." (internal quotation marks and citation omitted)). This necessarily implies timely, pretrial disclosure. See Curry v. United States, 658 A.2d 193, 197 (D.C. 1995) ("[A] prosecutor's timely disclosure obligation with respect to Brady material can never be overemphasized."). "Accordingly, this court has rejected any notion that disclosure in accordance with the Jencks Act satisfies the prosecutor's duty of seasonable disclosure under Brady, or that if such disclosure is made, the burden may then be shifted to the defendant, under pain of waiver, to request a continuance or similar remedy." Edelen, 627 A.2d at 970. See also James v. United States, 580 A.2d 636, 643 (D.C. 1990) ("If we were to impose upon defense counsel the obligation, every time Jencks material is disclosed . . . to evaluate -- or to request a continuance in order to evaluate -- the material's relevance not only to the witness who is testifying, but also to every witness who has previously testified, the result would be that a prosecutor's Brady obligations would extend no further than the requirements of the Jencks Act.").
There is no question here that Alemán's grand jury testimony should have been disclosed before trial. On this record, however, appellants "ha[ve] not demonstrated any prejudice by the delay in receiving [the] statement." Bellanger v. United States, 548 A.2d 501, 503 (D.C. 1988) (no Brady violation even though government disclosed Brady material after the beginning of trial, where there was no prejudice). Despite the delay in receiving the information, defense counsel was able to use the evidence to impeach Alemán's credibility and elicit exculpating testimony, at least with regard to Bonilla. As in United States v. Ingraldi, 793 F.2d 408, 412 (1st Cir. 1986) (cited with approval in Bellanger, 548 A.2d at 503 n.6), "[t]he record shows that defense counsel conducted an extremely effective cross-examination of [the witness], that he did succeed in using the tardily disclosed information to impugn [the witness's] credibility, and that there were so many other grounds for attacking [the witness's] credibility, which defense counsel exploited fully, that the [Brady material] was of minimal impact." Further undermining any prejudice, the prosecution itself brought out on redirect examination Alemán's prior statements that he could not remember the assaults, albeit in an apparent effort to salvage Alemán's credibility by showing his candor and honesty before the grand jury.*fn30 Finally, after having read the grand jury transcript, defense counsel did not indicate the need for additional time beyond the brief recess the court allowed.
Bonilla argues that he was prejudiced not merely by the untimely disclosure of the grand jury transcript, but also because the government never disclosed that Alemán had been subpoenaed multiple times. He claims that this information provided a separate ground for impeachment, and would have shown that Alemán was pressured by the prosecutor into changing his story and giving incriminating testimony to the grand jury. The grand jury transcript, however, put Bonilla and all of the other appellants on notice that Alemán had met with the prosecutor several times before he appeared before the grand jury, and that on several occasions he had denied remembering anything of the assaults. The transcript therefore alerted appellants not only to Alemán's initial statements denying any knowledge of the assaults, but also to the fact that he had done so over the course of several interviews with the prosecutor. From this, counsel could have inferred that (or questioned whether) Alemán's meetings with the prosecutor had not been voluntary, but pursuant to subpoena. The grand jury transcript could therefore have been used to argue that Alemán did not readily volunteer his incriminating grand jury testimony on his own initiative, but did so only under pressure from the prosecutor. This point was implicitly made at trial, where rather than directly testifying about appellants' participation in the attacks, Alemán reluctantly assented to his grand jury testimony when the prosecutor confronted him with it, after he claimed he could not remember the assaults. Since it was obvious from his testimony -- both at trial and before the grand jury -- that Alemán had initially resisted the government's persistent questioning regarding his knowledge of the assaults, additional information that Alemán had been repeatedly subpoenaed would have added too little to his impeachment for us to conclude that "there is a reasonable probability that, had the [multiple subpoenas] been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682 (1985). Moreover, as discussed previously, the jury was made aware that the government's investigation had been heavy-handed: Mayra Rivera testified that the government had called her into the prosecutor's office twice for questioning and threatened her, and López testified that Benítez told him that he had been pressured to falsely incriminate RoblesBenevides with respect to ...