Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Tann v. United States

Court of Appeals of Columbia District

November 19, 2015

Michael D. Tann, Lannell Cooper, Antonio Arnette, James Rushing, Saquawn Harris, and Dajuan D. Beaver, Appellants,
v.
United States, Appellee.

Argued March 25, 2014

Appeals from the Superior Court of the District of Columbia (CF1-22807-07, CF1-22940-07, CF1-22893-07, CF1-3359-08, CF1-22962-07, & CF1-22967-07) (Hon. Henry F. Greene, Trial Judge)

Judith A. Lovelace for appellant Tann.

Thomas T. Heslep for appellant Cooper.

Deborah A. Persico for appellant Arnette.

Steven R. Kiersh for appellant Rushing.

Christopher Kemmitt, Public Defender Service, with whom James Klein, Public Defender Service, was on the brief, for appellant Harris.

Stephen W. Riddell for appellant Beaver.

Elizabeth Gabriel, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth Trosman, John P. Mannarino, Laura Bach, and John Giovanelli, Assistant United States Attorneys, were on the brief, for appellee.

Before Glickman, Blackburne-Rigsby, and Thompson, Associate Judges.

OPINION

PER CURIAM.

After a nine-month jury trial, the six appellants in this case were convicted of conspiracy and a string of violent crimes, including homicides, that were committed in connection with their membership in a gang known as the 22nd Street Crew. They raise numerous challenges to their convictions in these consolidated appeals. With a few exceptions, however, we affirm the judgments of the Superior Court.

In view of the length of this opinion, before commencing our discussion of the proceedings below and appellants' claims, we set forth the following table of contents as an aid to the reader.

Table of Contents

I. The Leslie Jones Murder ............................................................................................ 7

II. The Terrence Jones Murder and Richard Queen Assault .......................................... 8

III. The James Taylor Murder and Bernard Mackey Assault .......................................... 10

IV. The Laquanda Johnson Murder and Keisha Frost Assault ........................................ 12

V. Obstruction of Justice – Witness Intimidation and Manipulation ............................. 15

VI. Procedural Developments .......................................................................................... 16

VII. Claims Concerning the Sufficiency of the Evidence ................................................. 19

A. Conspiracy ..................................................................................................... 19

1. Antonio Arnette .................................................................................... 25

2. Dajuan Beaver ....................................................................................... 27

3. Lannell Cooper ...................................................................................... 28

4. Saquawn Harris ..................................................................................... 29

5. James Rushing ...................................................................................... 30

6. Michael Tann ........................................................................................ 31

B. Terrence Jones-Richard Queen Incident ........................................................ 35

1. Tann's Convictions: Second-Degree Murder While

Armed of Terrence Jones, Armed Robbery of Richard

Queen, and Possession of a Firearm During the

Commission of a Crime of Violence ("PFCV") ................................... 35

2. Arnette's Convictions: Second-Degree Murder While Armed of Terrence Jones, Armed Robbery of

Richard Queen, and PFCV .................................................................... 42

C. James Taylor-Bernard Mackey Incident ........................................................ 50

1. The Government's Argument ............................................................... 56

2. Appellant's Argument ........................................................................... 58

3. Analysis ................................................................................................. 60

D. Beaver's Conviction: Obstruction of Justice ................................................. 87

E. Beaver's Conviction: Carrying a Pistol Without a License ("CPWL") ........ 94

F. Cooper's Conviction: Laquanda Johnson Murder Under Pinkerton ............. 98

VIII. Procedural and Evidentiary Issues Related to the Conspiracy And Appellants' Joint Trial ....................................................................................... 103

A. Cooper's Prior Convictions ............................................................................ 103

1. Error in Admitting Cooper's Convictions Against

Tann and Arnette ................................................................................... 106

2. Harmlessness ......................................................................................... 110

3. Admission Against Cooper ................................................................... 114

B. Tann's Severance Argument Unrelated to Cooper's

Prior Conviction ............................................................................................. 115

C. Laquanda Johnson's Statements Admitted Under a Forfeiture-by-Wrongdoing Theory ................................................................ 117

D. The Trial Court's Finding of a Predicate Conspiracy .................................... 121

E. Rap Lyrics and Beaver's Webpage ................................................................ 125

1. Authorship of the Rap Lyrics on the CD .............................................. 127

2. Whether Michael Smith was a Co-conspirator ..................................... 129

3. Statements in Furtherance of Conspiracy ............................................. 130

4. Unfair Prejudice .................................................................................... 133

F. Tann's Outburst ............................................................................................. 135

IX. Pretrial and Trial Issues Unrelated to the Conspiracy or Joint Trial .......................... 143

A. Evidentiary Issues .......................................................................................... 143

1. Search of Beaver's Jail Cell .................................................................. 143

2. Evidence of Uncharged Misconduct, Incarceration, and Fear

Testimony ............................................................................................ 149

a. Testimony of Andre McDuffie ...................................................... 149

b. Testimony of Darryl Travers ......................................................... 155

3. Evidentiary Rulings During Cooper's Case-in-Chief ........................... 157

a. Statements by Tamika Bradshaw .................................................. 157

b. Statements by Laquanda Johnson .................................................. 159

c. Statements by Cooper to Brandon Elzie ........................................ 160

4. Admission of Tann's Videotaped Statement ........................................ 162

B. Instructional Issues ......................................................................................... 163

1. Obstruction of Justice Instruction ......................................................... 163

2. Lesser-Included Offense Instruction: Relationship

Between Felony and Second-Degree Murder ....................................... 173

3. Attitude and Conduct Instruction .......................................................... 175

C. Closing and Rebuttal Argument ..................................................................... 176

1. Government's Closing Argument ......................................................... 176

2. Government's Rebuttal Argument ........................................................ 179

3. Analysis ................................................................................................. 182

D. Discovery ....................................................................................................... 186

1. Loss of Cooper's Jail Phone Calls ........................................................ 186

2. Dewey Chappel ..................................................................................... 191

3. Kyara Johnson ....................................................................................... 196

E. Grand Jury Claims ......................................................................................... 199

1. Pre-Indictment ....................................................................................... 203

2. Post-Indictment ..................................................................................... 206

X. Merger ............................................................................................................... 208

XI. Conclusion ............................................................................................................ 212

The government presented evidence at appellants' trial showing that there was a criminal street gang operating in the area of 22nd Street, Southeast, Washington, D.C. The investigation of this gang revealed a violent, drug-trafficking organization functioning in the blocks of 22nd Street that sat between Southern Avenue and Savannah Street, and influencing areas around the gang's base of operations. The goals of the organization were centered on the purchase, storage, packaging, and resale for profit, of illegal drugs within the community.

Members of the gang committed numerous criminal acts in an effort to protect the territory of the gang and integrity of its operations. This misconduct took the form of acts of violence designed to safeguard the organization. Often, the violence was directed at perceived rivals who might threaten the gang's territory and drug trade or witnesses who might undermine its operations through cooperation with law enforcement.

The gang was called various names, including the "22nd Street Crew, " "The Deuce, " "Deuce-Deuce, " "Shipley Market, " "Young Gunz, " and "Deuce Squad Mafia." For simplicity, it will be referred to in this opinion as the "22nd Street Crew." The 22nd Street Crew had a loose rank structure wherein members would play different roles according to the level of authority and respect they had gained over time through demonstrations of loyalty to the gang. Members that had achieved a sufficient level of respect would be referred to as "OGs" or "original gangsters." More junior members were labeled "baby gangsters" or "little locs."

The government's evidence tended to demonstrate the involvement of all six appellants in the 22nd Street Crew. Lannell Cooper had been part of the 22nd Street Crew since the 1990s and achieved an unmatched level of authority within the gang. Michael Tann was part of the gang for a similar period and was close behind Cooper in the hierarchy. James Rushing, Dajuan Beaver, and Antonio Arnette carried less weight in the organization; however, evidence was presented showing their long-standing involvement in the 22nd Street Crew and its operation. Saquawn Harris was a newer member, having been introduced by another high-ranking gang member.

The indictment in this case charged the six appellants with conspiracy and with committing serious acts of violence as part of their participation in the 22nd Street Crew. Specifically, the indictment articulated that each appellant entered into a conspiracy to "knowingly and willfully . . . agree together to obstruct justice and to assault and kill anyone whose interests were contrary to those of [appellants] and their associates." In a nine-month joint trial of appellants from November 2008 to July 2009, the government endeavored also to show that four murders were committed, as part of the charged conspiracy, at or near 22nd Street between 2003 and 2006. The government contended that these murders were directed toward maintaining the turf and authority of the 22nd Street Crew, either by eliminating perceived rivals or killing government witnesses. Each appellant was involved in at least one of these murders; appellant Tann was alleged to have played a role in three of the four. The essential facts of each major incident are briefly recited here.

I. The Leslie Jones Murder

Leslie Jones was a drug dealer who sold his product near 22nd Street, specifically in the Shipley Market area. He had a long-running feud with Tann that revolved around competition for drug sales and a prior incident in which one of his relatives assaulted Tann and had stolen his weapon.

On the evening of April 11, 2003, Tann attended a small party with his future wife Tracey at his cousin's house in Southeast, Washington, D.C. At some point during the evening, Tann told Tracey that he was going to 22nd Street and left the party. Tann found Leslie Jones at a pay phone near Shipley Market and shot him from behind. 22nd Street Crew member Alphonce Little was an eyewitness to the murder. Another witness, Tyrone Curry, heard the gunfire and saw Tann running away from the scene of the crime. Tann later confessed to Tracey, and another 22nd Street Crew member named Donald Matthews, that he had committed the murder.

II. The Terrence Jones Murder and Richard Queen Assault

The murder of Terrence Jones on April 17, 2004, began with an argument on 22nd Street between gang member Donald Matthews and a 22nd Street resident, Kyara Johnson, apparently about the type of liquor that was to be served at Kyara's birthday party. The verbal quarrel threatened to become violent before it was broken up by Kyara's sister, Shaunta Armstrong. Shaunta called her close friend Terrence Jones and asked him to come to 22nd Street to make sure that the situation was under control. Terrence Jones went to 22nd Street with his friend, Richard Queen. Terrence Jones approached Matthews and had a brief conversation with him. Matthews explained that he "just had an argument [with Kyara] but it wasn't nothing." Witnesses reported that their interaction ended peacefully and without incident.

According to Kyara Johnson, appellant Arnette learned of the exchange between Donald Matthews and Terrence Jones and yelled, "Doe" [referring to appellant Cooper] Kyara heard Cooper respond, "Where at?" Shaunta Armstrong then heard someone (believed to be Cooper) ask, "Squirt [appellant Arnette's nickname], who's faking?" Arnette nodded in the direction of Terrence Jones and Richard Queen and told Cooper to go up the street with his "hammer, " which was the street name for a gun. Cooper approached Terrence Jones and pointed a gun at him while Arnette hit Terrence Jones with his hands. Then, according to several witnesses, Cooper said words to the effect of "Pat them niggers' pockets." Arnette proceeded to pat Terrence Jones's pockets and hit him in the face. Witnesses stated that at some point Terrence Jones resisted by hitting Cooper, and Cooper shot him in response. When Terrence Jones tried to crawl away, Cooper shot him again.

Witnesses further testified that at approximately the same time as Terrence Jones was under attack, appellant Tann and other unidentified males appeared, pinned Richard Queen against a car, and began beating him and going through his pockets. According to Donald Matthews, Tann picked up a gun off the ground in the midst of the fight with Queen and shot him in the back as he tried to run away, wounding Queen but not badly enough to prevent his escape. Several days later, Tann told Matthews that he had shot Queen. At trial, Queen testified that his assailants had stolen cash and cigars that he was carrying that night.

III. The James Taylor Murder and Bernard Mackey Assault

A third murder occurred on 22nd Street a little over two years later, in the early evening of May 4, 2006. Again, the events were precipitated by an argument. This time it was a disagreement between Omar Harrison and Ashley Tyndle during which Harrison may have struck Tyndle. Harrison was an outsider to 22nd Street, and Tyndle was the girlfriend of gang member Alphonce Little.

As the dispute climaxed, Harrison made reference to his lack of fear of Little by telling Tyndle to "go get your baby['s] father" or words to that effect. At the time of the argument between Harrison and Tyndle, various members of the 22nd Street Crew were dispersed in different places on 22nd Street; one witness testified that one "little crew, " including appellants Tann and Harris, as well as Little and several other gang members, was gathered near a basketball court. When word of the Harrison-Tyndle dispute, and Harrison's challenge to Little, spread by word of mouth to the gang, Little, Harris, Tann, and other gang members raced toward Harrison from different directions on 22nd Street.

Then, multiple witnesses saw Harris and Tann open fire at Omar Harrison. Seven witnesses testified that they saw Harris shooting. Four witnesses saw Tann shooting. One witness testified that between five and ten gang members were shooting en masse with Tann and Harris although this testimony was conflicting. Two witnesses testified to seeing gang member Antonio Blaylock with a gun drawn during the incident. According to another witness, "a lot of people" in addition to Tann and Harris were shooting.

Alphonce Little, who denied firing a weapon, stated that immediately after the first waves of gunfire ended, he heard a separate set of gunshots coming from another location "across the street." These shots were fired by Robert Foreman, who Little testified was a very junior member of the 22nd Street Crew. Foreman saw and heard Tann and Harris firing at Harrison, felt compelled to join in the attack, and started shooting as well.

Once the firing started, Omar Harrison jumped into his truck and drove away safely. However, James Taylor, a 22nd Street resident who had been standing near Harrison's truck, was hit by a bullet in the head and died. Bernard Mackey, another innocent bystander, was also standing nearby and was grazed by a bullet in the back.

Alphonce Little ran with appellant Harris to the house of Harris's girlfriend and watched him pack his bags in preparation to go into hiding. Robert Foreman found Harris and Little at Harris's girlfriend's house. Little testified that Foreman told Harris and Little that he believed he had fired the shot that killed James Taylor. There was no evidence to show that either Harris or Tann, although aware of each other's role in the shooting and the presence of other gang members during the event, knew of Foreman's involvement in the murder. Following the incident, Harris fled the area and lived in disguise for several weeks until his arrest.

IV. The Laquanda Johnson Murder and Keisha Frost Assault

Notably for purposes of this appeal, appellant Cooper was tried for and convicted of the murder of Terrence Jones in 2006. At the time of the instant 2008-2009 trial of the appellants in this case, Cooper was serving a lengthy prison sentence for that crime. At Cooper's 2006 trial, the government listed Kyara Johnson and her older sister, Laquanda Johnson, as potential witnesses. Kyara testified about Cooper's shooting of Terrence Jones following her argument with Matthews. Laquanda was not an eyewitness to the Terrence Jones murder; however, Cooper had made several incriminating statements to her in the aftermath of that incident. Ultimately, Laquanda did not testify at the 2006 trial, but she could be seen at the courthouse during the trial supporting her sister. Laquanda was protective of her younger sister and was known by reputation to be a "gatekeeper" for those seeking access to Kyara.

Cooper was convicted at the end of June 2006. Approximately two weeks later, in the early morning of July 11, 2006, the sisters (who had been relocated from 22nd Street because of Cooper's trial) returned to 22nd Street to visit friends. Appellant Beaver saw the sisters and told Alphonce Little that they were back. Little investigated their presence and confirmed that the sisters were hanging out at a 22nd Street house with Keisha Frost, Laquanda Johnson's friend. Beaver and Little met with Dwayne Wright, another 22nd Street Crew member. The three men discussed the sisters and agreed that they "got to go" – meaning that they should be killed – because of their cooperation with the government. Beaver and Little further discussed which one of them was going to do the killing. Beaver, arguing that he had already done his duty to the gang by testifying in Cooper's defense at his 2006 trial, persuaded Little that he had an obligation to eliminate the Johnson sisters. Wright retrieved a gun for Little, and Beaver gave Little a pair of sunglasses as a partial disguise. Preparations were completed when Little secured a "hoodie" from Robert Foreman, and an escape route from appellant Rushing, who agreed to drive Little and Beaver away from the scene of the anticipated shooting.

Alphonce Little walked up to the house where he had seen the Johnson sisters. Kyara Johnson was inside, but Laquanda was on the porch with Keisha Frost. Little opened fire and shot both women, believing that Keisha was Kyara. Laquanda died, but Keisha lived. Kyara, looking out of an upstairs window, witnessed the shooting. Little ran away from the scene toward 23rd Street and Southern Avenue. Rushing collected Little and Beaver in his car and instructed Little to get rid of the hoodie. Beaver directed the gang members to his mother's house in Maryland where he hid the gun that Dwayne Wright had given Little to commit the murder.

V. Obstruction of Justice " Witness Intimidation and Manipulation

In the aftermath of these incidents, several appellants, and other gang members, approached witnesses in efforts to prevent their cooperation with law enforcement. Karen Bolling, the mother of Laquanda and Kyara Johnson, testified that while appellant Cooper was still on the street, he approached Laquanda and offered her drugs and money if she would keep Kyara off the stand during his 2006 trial for the murder of Terrence Jones.

After his arrest, Cooper sent out overtures from prison to numerous individuals in an effort to have them persuade (by force if necessary) the Johnson sisters and others not to testify against him. Cooper reached out to members of an allied street gang on 17th Street, including Brian Gilliam and Tyrell Hargraves, to have them search 22nd Street for Kyara. Gang member Travis Honesty and gang ally Dewey Chappell also testified that Cooper, from jail, instructed them and others (including appellants Tann, Beaver, Harris, Rushing, and gang member Alphonce Little) to find the sisters at various points. Karen Bolling also testified that after Cooper was arrested, Laquanda implored her not to let Kyara testify against Cooper, explaining that Tann had "talked to [Cooper]" and that "[Cooper] wanted to know was [Laquanda] going to help him by not letting her sister testify."

Tann approached other witnesses after the James Taylor-Bernard Mackey incident. He threatened Zartia Anderson, the sister of witnesses to the James Taylor murder, and stated that he was going to "straighten things out" regarding their cooperation with the government. Tann also confronted Donnise Harris, another James Taylor murder witness, and urged her to testify falsely that appellant Harris (no relation to Donnise Harris) had not been involved in the incident.

VI. Procedural Developments

A grand jury investigating these criminal activities in the area of 22nd Street handed down its original indictment in September 2007. A second grand jury followed with a superseding indictment in February 2008. The superseding indictment charged appellants with conspiring "to obstruct justice and to assault and kill anyone whose interests were contrary to those of [appellants] and their associates, " and numerous crimes related to that overall conspiracy, including involvement in the four murders described above. The jury returned general verdicts against all six appellants, finding each guilty of conspiracy.[1] In addition, each appellant was convicted on multiple other counts, as follows:

Tann was convicted of first-degree premeditated murder while armed[2] of both Leslie Jones and James Taylor, second-degree murder while armed[3] of Terrence Jones, armed robbery[4] and assault with intent to kill while armed[5] ("AWIKWA") of Richard Queen, AWIKWA of Bernard Mackey, two counts of obstruction of justice, [6] one count of threatening a person, [7] and a host of weapons offenses[8] related to these underlying crimes. Harris was convicted of first-degree premeditated murder while armed of James Taylor, AWIKWA of Bernard Mackey, and several related weapons offenses. Beaver was convicted of first" degree premeditated murder while armed of Laquanda Johnson, assault with a dangerous weapon[9] ("ADW") of Keisha Frost, and obstruction of justice, carrying a pistol without a license, unlawful possession of a firearm in connection with that event. He was also convicted of an additional count of obstruction of justice related to his prior attempts to influence the testimony of the Johnson sisters. Cooper was convicted of first-degree premeditated murder while armed of Laquanda Johnson and ADW of Keisha Frost on a conspiracy theory of liability pursuant to Pinkerton v. United States, 328 U.S. 640 (1946). He was also convicted on two counts of obstruction of justice related to the Johnson sisters and several weapons offenses. Rushing was convicted of first-degree premeditated murder while armed of Laquanda Johnson, ADW of Keisha Frost, and obstruction of justice and weapons offenses related to that shooting. Finally, Arnette was convicted of second-degree murder while armed of Terrence Jones, armed robbery of Richard Queen, and weapons offenses related to that incident.

Appellants followed with these appeals. In our discussion of their manifold claims of error, we first analyze the claims relating to the sufficiency of the government's evidence. Next, we deal with procedural and evidentiary issues affected by the alleged conspiracy and flowing from appellants' joint trial. Then, we address pretrial and trial matters not directly tied into the conspiracy or appellants' joinder. We conclude with our merger analysis and instructions to the trial court upon remand.

VII. Claims Concerning the Sufficiency of the Evidence

A. Conspiracy

Appellants argue that the evidence failed to establish their membership in the single conspiracy charged by the superseding indictment.[10] Instead, they contend, the evidence merely established, at best, only several short-term and discrete conspiracies, and the trial judge erred in failing to grant their motions for judgment of acquittal ("MJOA") as to the conspiracy count. "The standard by which we review a denial of a MJOA is de novo, and we, like the trial court, determine whether the evidence, viewed in the light most favorable to the government, was such that a reasonable juror could find guilt beyond a reasonable doubt." (Vashon) Howard v. United States, 867 A.2d 967, 972 (D.C. 2005) (internal quotation marks and alterations omitted).

"To prove conspiracy, the government must establish that an agreement existed between two or more people to commit a criminal offense; that the defendant[s] knowingly and voluntarily participated in the agreement, intending to commit a criminal objective; and that, in furtherance of and during the conspiracy, a co-conspirator committed at least one overt act." Hairston v. United States, 905 A.2d 765, 784 (D.C. 2006) (internal quotation marks 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." Castillo-Campos v. United States, 987 A.2d 476, 483 (D.C. 2010) (internal quotation marks and alterations omitted). Gang membership may be circumstantial evidence probative of the offense of conspiracy. Id. (citing Perez v. United States, 968 A.2d 39, 82-83 (D.C. 2009)).

"In determining whether the evidence supports a finding of a single conspiracy, the court looks at whether the defendants shared a common goal, any interdependence between the alleged participants and any overlap among the alleged participants." McCullough v. United States, 827 A.2d 48, 60 (D.C. 2003). "The existence of a single conspiracy or multiple conspiracies is primarily a question of fact for the jury." Hairston, 905 A.2d at 784 (quoting United States v. Tarantino, 846 F.2d 1384, 1391 (D.C. Cir. 1988)).

The superseding indictment charged that between April 2003 and July 2006, appellants and others conspired as follows:

[D]efendants Lannell N. Cooper . . . Stephen R. Gray . . . Michael D. Tann . . . Antonio D. Arnette . . . Saquawn L. Harris . . . Robert J. Foreman . . . Brian K. Gilliam . . . Dwayne A. Wright . . . James E. Rushing . . . [and Dajuan D. Beaver], [11] and other persons whose identities are both known and unknown to the grand jury, did knowingly and willfully combine, conspire, confederate, and agree together to obstruct justice and to assault and kill anyone whose interests were contrary to those of the defendants and their associates, in violation of 22 D.C. Code Sections 401, 402, 722, 2101.

The indictment proceeded to list thirty-three discrete overt acts, twenty-seven of which went to the jury, alleged to have been committed by at least one charged or uncharged coconspirator.

Because of the way that the indictment alleged the conspiracy, we review the sufficiency of the evidence to examine whether it properly established that each appellant knowingly participated in an agreement to obstruct justice, or to assault or kill anyone whose interests were contrary to those of the defendants and their coconspirators, [12] and whether at least one overt act was committed by a coconspirator. At trial, the government offered testimony about the structure and operations of the 22nd Street Crew through several gang "insiders" who testified as cooperating witnesses: former gang members Andre McDuffie, Devin Evans, Donald Matthews, and Alphonce Little. Their testimony tended to demonstrate that the gang had a geographical territory around 22nd Street where only authorized members were permitted to sell illegal drugs. In order be part of the 22nd Street Crew and enjoy the privileges associated with that membership, such as the right to partake in the profits of the gang's drug trafficking business, members had to be willing to further the common goals of the gang through the use of violence. McDuffie testified that to sell drugs as a member of the 22nd Street Crew:

You have to commit acts of violence; you have to stay loyal to one another; you got to help each other, if you need anything [like] guns or if you need more drugs. It's a commitment. It's like a way of life.

Appellants and other gang members used violence to protect their territory and to silence or retaliate against those who were believed to threaten the business and security of the gang and its operations. Devin Evans testified that an "outsider" was "considered somebody that's not from your neighborhood, somebody that's not welcomed" who would be "dealt with [by] acts of violence" if caught acting in a way adverse to the business interests of the crew. Andre McDuffie further explained: "[W]e had to enforce that no one can come into our area and try to take over our territory; no one can come in there and sell drugs [because] we wasn't having it." If an outsider tried to move in on the gang's drug market, McDuffie stated, "[The outsider] would have a problem [and] may end up losing [his life.]" Donald Matthews testified similarly. When asked what would happen if people from another part of the city "decided to set up shop and sell drugs" on 22nd Street, Matthews replied "[t]hey wouldn't last long" because gang members would "[r]un them away" using "[v]iolence."

The gang members treated "snitches, " meaning those "cooperating, telling authorities . . . about the activities of our organization, " in the same way. McDuffie testified that if someone was to cooperate with the government, "there would be violence inflicted."

The gang members played different roles in the operation according to the "different rank[s] and level[s] of respect " that members had earned over time through demonstrations of loyalty to the gang. Donald Matthews testified that the different roles assigned to gang members included selling drugs, storing money, stealing cars, and "committ[ing] acts of violence in order to protect the neighborhood." However, Andre McDuffie also testified that "everyone was an enforcer, " willing to handle a “beef' with “rival[s] in the street. The cooperating witnesses also revealed how 22nd Street Crew members shared weapons, warned each other about police activity in the gang's, and provided assistance to gang members who were in jail.

Such testimony sufficiently showed that no matter what role was played by a particular gang member at a given time, the 22nd Street Crew members were required to support the use of violence in order to advance the overall goals of maintaining the stability and reputation of the organization, its territory, and its illegal drug business. This testimony also established that the gang operated as a cohesive unit (albeit loosely coordinated), with a rank and leadership configuration that bound the gang together.

This testimony was the backdrop with which the jury examined the participation of appellants in the charged conspiracy and the facts of the murders in this case. The following subsections detail the evidence that more specifically demonstrated the knowing participation of appellants in the conspiracy alleged.

1. Antonio Arnette

Donald Matthews testified that appellant Antonio Arnette was a member of the 22nd Street Crew. According to Matthews, Arnette spent considerable time with appellants Cooper, Rushing, and fellow gang member Alphonce Little, on 22nd Street. Matthews testified that Arnette was also involved with other 22nd Street Crew members in packaging and selling illegal drugs in areas commonly used by the gang. Two other gang "insiders, " Devin Evans and Alphonce Little, also testified that Arnette was a member of the 22nd Street Crew. Little testified that Arnette sold drugs on 22nd Street and sometimes carried a gun. Several police officers also testified that they observed Arnette trafficking illegal drugs in the presence of other gang members and in areas known to belong to the 22nd Street Crew.

Arnette also played a leading role in the attack on Terrence Jones and Richard Queen. The evidence about this incident reasonably showed that Arnette perceived that Terrence Jones and Queen affronted the territory of the 22nd Street Crew by confronting fellow gang member Donald Matthews on the gang's turf. Arnette then called out Terrence Jones and Richard Queen for "faking" on 22nd Street, identified the two outsiders to Cooper (who Arnette knew was a leading member of the gang), and recommended that Cooper "bring his hammer" to deal with the situation. And the facts showed that Cooper (and Tann) responded accordingly, in reliance on Arnette's representations, resulting in a chain of events that led to Terrence Jones's death and Queen's shooting.

Although Arnette and Cooper may have been mistaken about whether Terrence Jones or Richard Queen was a true threat to the interests of the 22nd Street Crew, the evidence was sufficient to show that Arnette and Cooper believed that the outsiders, who they thought were "faking" by challenging Donald Matthews, had territorial aspirations adverse to the interests of appellants and their 22nd Street Crew associates. The evidence surrounding this incident, especially in the context of Arnette's active membership in the 22nd Street Crew and its illegal activities, was sufficient to demonstrate his knowing participation in an agreement with Cooper and other gang members "to assault and kill" those whose goals were contrary to those of the gang.

2. Dajuan Beaver

Appellant Beaver was identified by Devin Evans, Donald Matthews, and Alphonce Little as a member of the 22nd Street Crew who sold illegal substances with other gang members on 22nd Street. Alphonce Little also testified that he shared weapons with Beaver and that Beaver carried a gun.

Beaver also played a role in the crimes against the Johnson sisters, who were known by the gang members to be government cooperators. Beaver was involved in assisting Cooper with his attempt to alter Kyara's testimony in the period leading up to his trial. Moreover, Beaver was a key player in Laquanda Johnson's murder. Beaver found the Johnson sisters on 22nd Street the evening of the murder, convinced Alphonce Little to murder them in retaliation for their cooperation with the government in Cooper's 2006 trial, and then assisted Little by helping him put together a disguise before the shooting and covering up the crime afterward. The evidence was clear that Beaver was motivated to aid in this crime because of his membership in the 22nd Street Crew and his belief that the objectives of the membership were contrary to those of "snitches." Thus, the evidence was sufficient to show Beaver's knowing participation with other gang members in a conspiracy to "obstruct justice and to assault and kill" persons with aims contrary to those of his codefendants.

3. Lannell Cooper

Government witnesses testified that appellant Cooper was a long-standing and high-ranking member of the organization who by 2004 "could tell everybody [in the gang] what to do." He was also deeply involved in the illegal drug trade on 22nd Street. Cooper was a principal in the murder of Terrence Jones for perceived threats to the gang's reputation and territory on 22nd Street. And he was the instigator of a series of attempts to obstruct justice with regard to the cooperation of the Johnson sisters with the government in his 2006 prosecution – attempts which were ultimately connected to Laquanda Johnson's murder by Alphonce Little. Clearly, the evidence was sufficient to show his knowing participation in an agreement with other members of the 22nd Street crew to commit obstruction of justice and murder of individuals possessing interests conflicting with those of the gang.

4. Saquawn Harris

Alphonce Little testified that appellant Harris was a member of the 22nd Street Crew, although he was a newer member of the gang who had been introduced to the gang and encouraged to sell drugs on 22nd Street by influential gang member Eric Dreher. Little further stated that he sold illegal drugs with Harris and shared weapons with him. The testimony of several police officers bolstered Little's testimony about Harris's connection to the 22nd Street Crew by establishing that Harris was seen regularly with Tann, Beaver, Arnette, Rushing and other gang members on 22nd Street.

In light of these relationships, the James Taylor-Bernard Mackey incident was probative evidence of Harris's participation in the conspiracy. The facts of that incident showed that Harris, Tann, and many other gang members, responded to an insult by an outsider, Omar Harrison, to Alphonce Little's girlfriend on 22nd Street – in the heart of the gang's territory – and to Harrison's instruction to Little's girlfriend to "go get your baby['s] father." Harris and Tann opened fire in the direction of Omar Harrison in a sequence of events that resulted in the death of

James Taylor and the wounding of Bernard Mackey. Like the Terrence Jones-Richard Queen incident, Harris's active participation in an event where he violently reacted to a perceived threat to the reputation of the gang (and to the girlfriend of a fellow gang member) was sufficient evidence of his knowing participation in an agreement "to assault and to kill" those whose interests ran contrary to those of his gang associates.

5. James Rushing

Andre McDuffie testified that appellant Rushing had been a member of the 22nd Street Crew since the early 1990's; McDuffie was a senior gang member at the time of Rushing's entry into the gang, and McDuffie was responsible for teaching Rushing gang-related skills. McDuffie also testified that he saw Rushing sell crack cocaine on a regular basis on 22nd Street. Matthews's testimony additionally provided supporting evidence of Rushing's drug trafficking activities with other members of the gang.

Like Beaver, Rushing played a critical role in the Laquanda Johnson murder, which was evidence of his involvement in the conspiracy. Knowing that Little intended to murder the Johnson sisters because of their cooperation with the government, Rushing agreed to act as Little's getaway driver. Rushing drove Little and Beaver from the scene of the crime after Little killed Laquanda and wounded Keisha Frost. He also helped Little cover up the crime by instructing him to discard his clothing, and by driving Little to Beaver's mother's house in Maryland where Beaver stashed the murder weapon. Given Rushing's participation in the Laquanda Johnson murder, the killing of a known government cooperator, in light of Rushing's relationship with the 22nd Street Crew and its members, the evidence was sufficient to show his knowing participation in the conspiracy "to kill or assault" persons (such as Laquanda) whose interests were not aligned with those of Rushing or his associates.

6. Michael Tann

All of the government's "insider" witnesses (McDuffie, Evans, Matthews, and Little), as well as Tracey Tann (appellant Tann's wife), testified that Tann was a well-known and high-ranking member of the 22nd Street Crew. Matthews and Little also provided testimony about Tann's participation with other gang members in the gang's drug trade.

More than any other appellant, Tann was also closely involved in the acts of violence against outsiders who challenged the 22nd Street Crew's territory and reputation. Tann was a key player in the Leslie Jones, Terrence Jones, and James Taylor murders. Moreover, the facts point to Tann's repeated use of threats of violence against potential witnesses, who might testify against his coconspirators, in order to obstruct justice. These circumstances were sufficient to establish that Tann – sometimes acting alongside other gang members to commit acts of violence against perceived rivals (including Terrence Jones and Omar Harrison) – knowingly joined and participated in an agreement "to obstruct justice or assault or kill" persons whose interests ran counter to those of the gang.

In sum, the evidence was sufficient to show that appellants, all members of the 22nd Street Crew, entered into an agreement to obstruct justice by threatening or manipulating witnesses, or to assault or kill persons whose interests were at odds with theirs, such as rivals or cooperating witnesses, and knowingly and voluntarily participated in that agreement. Hairston, 905 A.2d at 784. Moreover, of the twenty-seven overt acts of the conspiracy that went to the jury, many were supported by sufficient evidence, and at least some were supported by overwhelming evidence.[13] See Lumpkin v. United States, 586 A.2d 701, 703 (D.C. 1991).

As to appellant's arguments that the proof at trial did not show a single conspiracy, but instead showed that appellants merely engaged in "discrete projects, which happened within a general community ethos, " and that the "indictment was so broad and unlimited as to be meaningless in a criminal context-, we find them unavailing. First, the evidence was sufficient to show that appellants were engaged in actions demonstrating a core common purpose, namely to inflict or threaten violence on rivals (real or perceived) and government cooperators. See United States v. Graham, 83 F.3d 1466, 1471-72 (D.C. Cir. 1996) (concluding that there was a single conspiracy where the court had "no doubt that [the] evidence was sufficient for a reasonable juror to conclude that appellants and others shared the common goal of distributing crack cocaine for profit" despite evidence of multiple drug-dealing "cliques" operating in a particular territory).

Moreover, it is clear that the appellants and other gang members acted together, relied on each other, and often coordinated their efforts, in order to more effectively achieve their common goal of inflicting (or threatening) violence on those opposed to the interests of the gang. See United States v. Gatling, 96 F.3d 1511, 1522 (D.C. Cir. 1996) (finding "interdependence" existing for purposes of a single conspiracy even when assistance provided by coconspirators to each other is "fairly minimal"); see also United States v. Richerson, 833 F.2d 1147, 1154 (5th Cir. 1987) ("Parties who knowingly participate with core conspirators to achieve a common goal may be members of an overall conspiracy."). The events of the Terrence Jones murder-Richard Queen assault (involving Tann, Cooper and Arnette), the James Taylor murder-Bernard Mackey assault (involving Tann, Harris, and other gang members), and Laquanda Johnson murder-Keisha Frost assault (involving Beaver and Rushing), are examples of such coordinated actions by all appellants to achieve the goals of the conspiracy.

Finally, we agree with the United States Court of Appeals for the District of Columbia Circuit that "a conspiracy's purpose should not be defined in too narrow or specific terms." Gatling, 96 F.3d at 1520. Our case law demonstrates the same principle. See Hairston, 905 A.2d at 784 (conspirators' aim was to "seek[] revenge against the 1400 block faction [of rival gang members]"); Castillo-Campos, 987 A.2d at 483 (conspiracy's objective was "to kill or otherwise 'get' the rival gang members"). Here, although the conspiracy to "obstruct justice and to assault and kill anyone whose interests were contrary" to the gang was indeed a broadly stated criminal objective, appellants have not cited any authority demonstrating that the conspiracy count as charged was legally deficient. Cf. United States v. Romero, 897 F.2d 47, 51-52 (2d Cir. 1990) ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.