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United States v. Adams

United States District Court, D. Columbia.

December 15, 2015


          For Jamal A. Adams aka: ISHMEAL HERU-BEY: Gregory W. Gardner, LEAD ATTORNEY, LAW OFFICE OF GREGORY GARDNER, Washington, DC, USA; Kenneth E. McPherson, LEAD ATTORNEY, KENNETH E. MCPHERSON, CHTD., Riverdale, MD, USA.

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         JAMES E. BOASBERG, United States District Judge.

         Defendant Ishmael Heru-Bey, formerly known as Jamal Adams, was named in a superseding indictment charging him with one count of corruptly endeavoring to obstruct and impede the internal-revenue laws and two counts of attempting to evade or defeat taxes. A jury ultimately convicted him of the first and acquitted him of the latter two. He now moves for a new trial on the ground that the Court improperly responded to a jury note during deliberations. More specifically, Heru-Bey contends that the Court should have instructed the jury that it must unanimously agree on at least one of the specific

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means by which he acted to obstruct or impede the laws. Because Defendant did not initially seek such a unanimity instruction and because one would not have been legally correct, the Court will deny his Motion.

         I. Background

         The count at issue here is the first in the superseding indictment, which is labeled " Corrupt Endeavor to Obstruct and Impede the Internal Revenue Laws," in violation of 26 U.S.C. § 7212(a). See ECF No. 17 at 1, 2-3. (Because Heru-Bey legally changed his name from Jamal Adams only after many of the charged actions had occurred, the indictment refers to him as Adams. Given that his name is actually Heru-Bey, that is what the Court will call him.) Count I alleges that, from 2005-15, Defendant, then an officer with the Metropolitan Police Department, " did corruptly obstruct and impede, and endeavor to obstruct and impede, the due administration of the internal revenue laws by various means, including, but not limited to . . ." submitting false W-4 forms to his employer in four separate years, filing false documents in the U.S. Bankruptcy Court, and filing U.S. Individual Tax Returns in two years that falsely claimed unreimbursed employee expenses. See id. at 2-3. Counts II and III, furthermore, charged Heru-Bey with attempting to evade or defeat taxes in two different years. See id. at 4-5.

         The case eventually proceeded to trial on October 5, 2015. At the close of the evidence on October 8, the Court, having previously handed out to the parties a draft of the jury instructions, held a charging conference and permitted both sides to raise objections and propose changes. The instruction ultimately given for Count I read as follows:

The defendant is charged with Corruptly Endeavoring to Obstruct and Impede the Internal Revenue Laws by various means, including (1) submitting false Forms W-4 to the Metropolitan Police Department on or about February 1, 2006, February 3, 2008, January 1, 2009, and March 11, 2010, in which he falsely claimed he was exempt from federal income tax withholding; (2) filing documents with the United States Bankruptcy Court for the District of Columbia on or about June 10, 2010, in which he failed to report his income tax debts due and owing the United States and the fact that the IRS was a creditor; and (3) filing false U.S. Individual Income Tax Returns, Forms 1040, with the Internal Revenue Service for the years 2011 and 2014, in which he falsely claimed that he incurred unreimbursed employee expenses.
The elements of this count, each of which the government must prove beyond a reasonable doubt, are that:
1. Mr. Heru-Bey endeavored to obstruct or impede the due administration of the internal revenue laws. To " endeavor" means to act knowingly and intentionally -- that is, not by mistake or accident. " The due administration of the internal revenue laws" means the Internal Revenue Service's efforts to fulfill its lawful functions, which includes determining the defendant's income and calculating, assessing, and collecting taxes on that income;
2. The defendant's actions -- even if not successful -- had a reasonable tendency to obstruct or impede the due administration of the internal revenue laws; and
3. The defendant acted corruptly -- that is, with the purpose of obtaining an unlawful benefit for himself or someone else. The specific actions taken by the defendant need not be illegal, but they must have been done with the purpose of securing an unlawful benefit.

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The government does not have to prove that the defendant's actions achieved their desired result or had an adverse effect on the Internal Revenue Service.

ECF No. 37 (Final Jury Instructions) at 7-8. At no point in the conference did Defendant ask for a unanimity instruction. That is, he never requested that the Court instruct the jury that all jurors must agree on which specific means (or act) specified in the first paragraph of the instruction was taken to obstruct or impede the laws. The Court thus gave the jury the above instruction on the morning of October 9.

         On that same afternoon at 2:08 p.m., the jury sent a written note to the Court, which stated:

Question on count 1[:]
The opening paragraph includes 3 " means" by which the defendant corruptly endeavored to obstruct and impede the Internal Revenue Laws, namely A) false W-4s[,] B) false documents to bankruptcy court, and C) false tax returns.
Our question is, do we need to find that all of A, B, and C each meet each of the 3 elements of the count to find him guilty? That is, if we find the defendant guilty of A, but not guilty of B and not guilty of C, must we find the defendant not guilty of count 1? Or. do we find him guilty of count 1 because we found him guilty of A?

ECF No. 34 (Jury Notes) at 2 (emphasis original).

         The Court summoned the parties to the courtroom to give them the note and to discuss a response. It first pointed out that the " government doesn't need to prove that he has committed all of the offenses here." Appendix to Opinion (Trial Transcript) at 1:20-21. Although the defense agreed with that premise, it argued that the jury nonetheless needed to be unanimous on which of the means was used. See id. at 2:6-7, 12-13. The Court then asked the Government about its position on giving such a response to the note. See id. at 2:20-3:3. The Government rejoined that there was a case that stood for the contrary position, which the Court identified as coming from the 10th Circuit. See id. at 3:4-9. (The Court initially called the case " Williams," but soon thereafter clarified that the case was Sorensen, which is discussed below. See id. at 5:23-6:7.) The Court then asked the Government how it wished to proceed, given that it might still tactically prefer the unanimity instruction for appellate purposes. See id. at 3:14-25. The Government indicated that it did not wish such instruction, see id. at 4:3-4, and the Court agreed that the law supported its position. See id. at 5:5-12. It thus responded to the note in this fashion: " The government must prove beyond a reasonable doubt all three elements of Count I. But the government need not prove all three of the means listed." Id. at 7:6-8. While the Court did not give a unanimity instruction, it also did not specifically tell the jurors that they could convict Heru-Bey even if they did not all agree on which means was employed.

         The jury did not reach a verdict on October 9 and returned to its deliberations on October 13 after the Columbus Day holiday weekend. It then issued its verdict that afternoon, convicting Heru-Bey of Count I but acquitting him of Counts II and III. With sentencing set for January 2016, he now moves for a new trial.

         II. Legal Standard

         Federal Rule of Criminal Procedure 33(a) provides: " Upon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." According to our Court of Appeals, " Trial courts enjoy broad discretion in ruling on a motion for

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a new trial." United States v. Wheeler, 753 F.3d 200, 208, 410 U.S.App.D.C. 87 (D.C. Cir. 2014) (citation omitted). This is true in part because " [t]he rules do not define 'interests of justice' and courts have had little success in trying to generalize its meaning." Id. (citation and internal quotation marks omitted). At bottom, the D.C. Circuit counsels that " granting a new trial motion is warranted only in those limited circumstances where a serious miscarriage of justice may have occurred." Id. (citation and internal quotation marks omitted). This Court nonetheless believes that a clearly erroneous and prejudicial jury instruction could well necessitate a new trial. See United States v. Vicaria, 12 F.3d 195, 198-99 (11th Cir. 1994) (holding that district court did not abuse its discretion in granting new trial after concluding that it had erroneously omitted particular jury instruction).

         III. Analysis

         In seeking a new trial, Heru-Bey contends that the Court erred by failing to give a unanimity instruction in connection with Count I. Although he concedes that he did not object to the instructions before they were delivered, see Mot. at 2, he asserts that he should have been given a second bite at the apple once the jury had submitted its note. See id. at 4-5. The Government retorts that waiver precludes his argument here and that, alternatively, the Court correctly decided, in ...

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