Appeals from the Superior Court of the District of Columbia (F-6172-03, F-7085-02 & F-7536-02) (Hon. Patricia A. Broderick, Trial Judge).
The opinion of the court was delivered by: Thompson, Associate Judge
Before WASHINGTON, Chief Judge, and BLACKBURNE-RIGSBY and THOMPSON, Associate Judges.
After a joint trial that lasted almost two months, a jury convicted appellants Juan Castillo-Campos ("Castillo"), Oscar Chávez, and Enrique L. Morales of criminal conspiracy and of various murder, assault, kidnaping, burglary, destruction-of-property, weapons, and obstruction-of-justice charges.*fn1 In these consolidated appeals, each of the appellants challenges the sufficiency of the evidence as to several of the convictions. Castillo and Morales also contend that the trial judge erred in denying their motions for severance. In addition, Castillo argues that the trial court erred in permitting the government to elicit "other crimes" evidence. We agree with appellants Chávez and Morales (and with the government) that because the evidence did not show that victim Jose Diaz sustained serious bodily injury, their convictions for aggravated assault while armed (victim Diaz) must be vacated. In all other respects, we affirm the judgments of conviction.
The government presented evidence that appellants were members of Vatos Locos (VL"), a gang that, over a period of years, engaged in an escalating pattern of violence against members of the rival gang known as "Mara R" or "La Raza" and its splinter group known as "STC" (Street Thug Criminals). A government witness testified that during one gathering of VL members in late 1999 or early 2000, members agreed to go on the offensive against Mara R and STC. The result was a series of assaults and murders by VL members targeted at individuals who were affiliated with the rival groups. The government argued -- and the jury apparently was persuaded -- that because the various crimes were in furtherance of a criminal conspiracy, guilty verdicts were warranted as to some counts even though no evidence was presented that the defendant participated personally in the commission of the charged offenses.*fn2
II. Sufficiency of the Evidence
Appellants contend that the evidence was not sufficient to establish that they engaged in a criminal conspiracy. Citing the evidence that VL members largely were young men from the same neighborhood who were students at Bell Multicultural High School and whose families had immigrated from El Salvador, they contend that VL was a loose-knit group that "originated with family, school and community" and that "was incapable of forming an agreement, because it was simply too fragmented."*fn3 Appellants deride the government conspiracy case as based on "meetings between high school students on unknown dates." They also argue that the government failed to prove that they knowingly and intentionally joined any agreement to commit crimes. They urge that evidence of their "mere presence at the scene of the agreement or the crime, or merely being with the other participants" does not show that they knowingly joined in an agreement to commit any crime; that "unknowingly acting in a way that helps the participants or merely knowing about the agreement itself, without more" did not make them part of a conspiracy; and that the individual crimes that were charged were the only evidence that the conspiracy existed.
"The substance of the crime of conspiracy is knowing participation in an agreement to accomplish an unlawful act[.]" Irving v. United States, 673 A.2d 1284, 1288 (D.C. 1996) (italics omitted). The specific elements of criminal conspiracy are:
(1) an agreement between two or more persons to commit a criminal offense; (2) knowing participation in that agreement with intent to commit the criminal objective; and (3) during the life of the conspiracy, and in furtherance of its objective, the commission by at least one conspirator of at least one of the overt acts specified in the indictment.
Green v. United States, 718 A.2d 1042, 1057 (D.C. 1998) (quoting Gibson v. United States, 700 A.2d 776, 779 (D.C. 1997)) (italics omitted). A conspirator may be found guilty of a substantive crime committed by a co-conspirator if the substantive crime was "a reasonably foreseeable consequence of the agreement . . . ." Wilson-Bey v. United States, 903 A.2d 818, 840 (D.C. 2006) (en banc) (citation omitted).
We are satisfied that the government's evidence was sufficient to establish that a conspiracy existed and that each of the appellants knowingly participated in it. Government witness and admitted VL member Gilberto Vigil testified that, in late 1999 or 2000, at a gathering of about a dozen VL members (including appellants Chávez and Morales), members discussed Mara R and STC and agreed to "get them before they get you"*fn4 and to "kill or be killed." But, although the government emphasized the evidence of that agreement to go on the offensive against STC and La Raza, "participation in a criminal conspiracy need not be proved by [such] direct evidence[.]" Glasser v. United States, 315 U.S. 60, 80 (1942). Indeed, "the evidence supporting a conspiracy conviction nearly always is circumstantial because there is rarely in a conspiracy case direct evidence of the conspiracy or proof of declarations." Wheeler v. United States, 977 A.2d 973, 982 n.19 (D.C. 2009) (citation, alteration, and internal quotation marks omitted); see also People v. Zamora, 557 P.2d 75, 89 (Cal. 1976) (The agreement or "the unlawful design of a conspiracy may be proved by circumstantial evidence without the necessity of showing that the conspirators met and actually agreed to commit the offense which was the object of the conspiracy.") (citation omitted).
A conspiratorial agreement may be inferred from circumstances that "include the conduct of defendants in mutually carrying out a common illegal purpose, the nature of the act done, the relationship of the parties and the interests of the alleged conspirators[.]" Ramirez v. Almager, 619 F. Supp. 2d 881, 901 (C.D. Cal. 2008) (quoting People v. Superior Court (Quinteros), 16 Cal. Rptr. 2d 462, 467 (Cal. Ct. App. 1993)). Here, there was ample evidence of conduct by each of the appellants -- their acting alongside other VL members to commit assaultive acts on STC and Mara R members*fn5 -- from which the jury could infer that they joined in an agreement with fellow VL members to kill or otherwise "get" the rival gang members.
As appellants note, this court has acknowledged that "the sheer number and variety of criminal acts" carried out by gang members over an extended time period "might plausibly" leave a jury "uncertain whether the overt acts alleged revealed a conspiracy -- i.e., organized, planned, and concerted activity -- rather than the uncoordinated actions . . . of kids who grow up in the same neighborhood and do what they want to do[,] . . . some of them . . . involved in [doing] bad things," particularly if the criminal acts are directed not only against rival gang members but against others as well. Morten v. United States, 856 A.2d 595, 601 (D.C. 2004). Here, however, the government presented evidence of concerted attacks by VL members targeted only at STC or Mara R members. The evidence about injuries to individuals who were not affiliated with STC or Mara R showed that these individuals happened to be in the path of gunfire, not that appellants' and their cohorts' violence was targeted randomly.*fn6 In this case, the government's evidence allowed the jury to conclude that VL was not just a social organization, but "an integral factor in [appellants'] . . . conspiracy to assault" STC members. Perez, 968 A.2d at 83.*fn7
Appellant Castillo emphasizes the absence of evidence that he was present at the 1999 or 2000 VL gathering at which (according to the government's theory) the conspiracy was launched, and he argues that there was no evidence that he ever joined in any such agreement.*fn8 However, a conspirator can join a conspiracy at any time and need not have been involved at its inception. See United States v. Burchinal, 657 F.2d 985, 990 (8th Cir. 1981). For the jury to find that Castillo was a member of the charged criminal conspiracy, the government was not required to prove that he joined in a group deliberation from which there emerged agreement on a plan to assault STC members. Rather, the jury could find that Castillo participated in a conspiracy from the moment he knowingly joined in an effort to find and attack STC members -- of which there was ample proof. Cf. McCrae v. United States, 980 A.2d 1082, 1089 (D.C. 2009) (noting that "[w]hile one of these co-participants did testify . . . that there was 'no plan,' his description of the desire of the crew, including [appellant] to retaliate, as well as his testimony about how the group came together . . . ...