Appeal from the Superior Court of the District of Columbia (CF3-10320-11) (Hon. Ann O‟Regan Keary, Trial Judge)
The opinion of the court was delivered by: Thompson, Associate Judge:
Before THOMPSON and OBERLY, Associate Judges, and TERRY, Senior Judge.
This matter is an interlocutory appeal from the trial court‟s denial of a motion by appellant Pedro Joya to dismiss a charge of contributing to the delinquency of a minor (CDM), on which appellant is awaiting trial. Appellant contends that the government is barred by collateral estoppel, as embodied in the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, from prosecuting him on that charge, which arose in connection with robbery, assault, and weapons offenses of which appellant was acquitted in an earlier trial. The government contends that appellant waived the issues of double jeopardy and collateral estoppel when he successfully sought severance of the CDM charge from the charges on which he was tried earlier. Although we conclude that appellant did not waive the shield of collateral estoppel, we affirm the trial court‟s denial of the motion to dismiss.
The background of this appeal is as follows. A September 21, 2011, indictment charged appellant with armed robbery,*fn1 assault with significant bodily injury,*fn2 carrying a dangerous weapon (CDW),*fn3 possession of a prohibited weapon (PPW),*fn4 and CDM.*fn5 Four other men - Kelvin Parada, Edvin Ramirez, Lester Flores, and Pablo Joya (appellant‟s brother) - were also variously charged in the fifteen-count indictment with some or all of those and other offenses. All of the charges were in connection with a robbery that occurred on May 31, 2011, and all five men were scheduled to be tried together. As described in more detail below, the robbery victim reported that after the robbery, his assailants made "gang signs." The grounds for the CDM charge are that (1) Parada was a minor on the date of the charged offenses, and (2) according to the government‟s theory, appellant, Ramirez, and Pablo Joya "invite[d], solicit[ed], recruit[ed], assist[ed], support[ed], cause[d], encourage[d], enable[d], induce[d], advise[d], incite[d], facilitate[d], permit[ted], or allow[ed]"*fn6 Parada‟s involvement in a gang-related felony (robbery), as part of Parada‟s induction into gang membership.
As the parties were preparing for a joint trial of the group of defendants on all of the charges, the government filed a motion seeking leave to present expert testimony regarding the practices of the gang known as Mara Salvatrucha, or "MS-13" (according to the government, the gang to which the defendants belonged or with which they associated). There followed appellant‟s opposition to the government‟s motion to permit the introduction of gang evidence and defendants‟ written or oral motions for severance. At a hearing before the court on November 14, 2011, appellant‟s trial counsel argued that, as to the CDM charge, joinder would mean that he would "have no way of confronting the [government‟s gang] expert on what Kelvin Parada‟s state of mind is other than to use [co-defendant] Kelvin Parada, who‟s unavailable" (because, presumably, Parada would not testify).
After hearing from counsel at length, the trial court ruled from the bench that the gang evidence was "highly inflammatory" and would not be admissible in the government‟s case-in-chief as to the robbery, assault, weapons possession, and other nonCDM charges, because its probative value was far outweighed by the risk of unfair prejudice. The court reasoned, however, that the gang evidence would be of "some probative value" if Ramirez, Pablo Joya, and appellant were tried separately on the CDM charge.*fn7 The court also acknowledged appellant‟s argument "that it really puts the defendants in an - a nulla situation where the defendant is both on trial as a co-defendant and the alleged victim of Mr. Ramirez, Mr. Joya and Mr. Joya, and what is on that person‟s mind, what his actual role was, what he believed was happening . . . becomes unavailable to them as testimony or evidence that they could use[,] because of his status as a co-defendant." The court therefore concluded that "for a couple of reasons," there was "a good basis to sever" the CDM counts from the other counts.
Thereafter, trial (the "first trial") proceeded on the non-CDM charges. The government presented evidence that on May 31, 2011, complainant Maximiliano Garcia-Lopez was robbed at knife point. Garcia-Lopez testified that at around 10:30 p.m., he was walking down 16th St., N.W., when Pablo Joya confronted him and demanded money.*fn8 When Garcia-Lopez said that he did not have any money, Pablo Joya went behind him and stood about six or seven feet away. Ramirez and Parada then approached Garcia-Lopez. Appellant, who joined the men and also stood about six to seven feet behind Garcia-Lopez, was looking from "side to side."
Ramirez then demanded money from Garcia-Lopez. Garcia-Lopez attempted to run away, but Ramirez caught up with him and held a knife to Garcia-Lopez‟s throat. Parada then took Garcia-Lopez by the arm and guided him to a nearby park, while Ramirez held the knife to Garcia-Lopez‟s back. In the park, Ramirez pushed Garcia-Lopez to the ground, with the knife to his back, while Parada took his wallet and bag. Garcia-Lopez testified that, meanwhile, he could see appellant watching him. He testified that he thought appellant was "the eyes" and was "watching out[.]"
After threatening that they would kill Garcia-Lopez if he reported the incident to the police, Ramirez and Parada ran off. Garcia-Lopez testified that as they ran away, they were making "motions with [their] hands" that looked like gang signs. Two days after the robbery, Garcia-Lopez spotted five men - appellant, Pablo Joya, Ramirez, Parada, and Flores - sitting together near the location where the robbery had occurred. Garcia-Lopez notified the police, who found, under the staircase where the men had been sitting, a knife that Garcia-Lopez identified as the one used in the robbery.
The government‟s theory, which it argued to the jury, was that appellant aided and abetted the robbery. Specifically, in opening argument, the prosecutor told the jury that appellant and Flores came over to Garcia-Lopez and stood behind him, joining the other men in surrounding him and "blocking the way he just came." In closing argument, the prosecutor argued that appellant and Flores "t[ook] up their positions behind Mr. Garcia" and had "an integral role in the robbery," in that they stood on the corner of 16th and Lamont Streets as "lookouts" and "performed the acts of blocking off, surrounding, intimidating, [and] scaring Mr. Garcia, and then looking out for the police to make sure that no one could stop this robbery[.]" In rebuttal, the prosecutor argued that appellant and the other lookouts were "standing about 7 feet behind him," "facing toward the street with their backs to him looking back and forth, up and down 16th Street," "blocking [Garcia-Lopez‟s] escape and . . . watching for cops" or "for anybody who might be able to help" and "looking back to make sure that the robbery is going according to plan."
Before sending the jurors to deliberate, the court gave them an aiding and abetting instruction.*fn9 On December 2, 2011, the jury delivered its verdict, acquitting appellant of all charges.*fn10
The government then proceeded with the CDM charge against Ramirez, Pablo Joya, and appellant and with the (to-be-retried) robbery charge against Pablo Joya, with the trial court denying Pablo Joya‟s motion for severance of the robbery charge. As specified in the indictment, the CDM charge against appellant and his co-defendants is that "[o]n or about May 31, 2011, within the District of Columbia, . . . being four years or more older than Kelvin Parada, a minor, [the defendants] invited, solicited, recruited, assisted, supported, caused, encouraged, enabled, induced, advised, incited, facilitated, permitted, and allowed Kelvin Parada to [commit a felony, robbery]." Appellant moved to dismiss the charge, asserting that, in acquitting appellant, the jury in the first trial had rejected the government‟s evidence that appellant participated in the robbery of Garcia-Lopez. Appellant argued that any "presentation of evidence, witness testimony, or arguments" that appellant had done so "would violate [appellant‟s] constitutional right not to be placed in jeopardy twice for the same offense," since "the Double Jeopardy Clause [of the Fifth Amendment to the Constitution] precludes the Government from ...