United States District Court, D. Columbia.
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.
E. BOASBERG, United States District Judge.
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
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.
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.
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
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.
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.
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).
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.
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.
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
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).
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