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United States v. Adams

United States District Court, District of Columbia

August 4, 2016

JAMAL A. ADAMS, a/k/a Ishmael Heru-Bey, Defendant.


          JAMES E. BOASBERG United States District Judge.

         Defendant Ishmael Heru-Bey, formerly Jamal Adams, was convicted by a jury in October 2015 of corruptly endeavoring to obstruct and impede the internal-revenue laws. This Court sentenced him in April 2016 to eleven months’ incarceration, followed by twelve months of supervised release, and ordered him to pay restitution of $45, 712. He now moves for release pending his appeal of this conviction on the ground that such appeal raises at least one substantial question of law or fact likely to result in an appellate decision in his favor. More specifically, Heru-Bey argues that this Court erred in holding that: (1) he had forfeited his right to request a jury instruction concerning unanimity; (2) such a unanimity instruction is not required as a matter of law in his case; and (3) the government did not violate Batson v. Kentucky, 476 U.S. 79 (1986), through its use of peremptory strikes of black jurors during voir dire. Because none of these challenges meets the required threshold, the Court will deny his Motion.

         I. Background

         Defendant was charged in a Superseding Indictment filed on August 19, 2015. See ECF No. 17. (Because Heru-Bey legally changed his name from Jamal Adams only after many of the relevant acts had occurred, the Indictment refers to him as Adams. Given that his name is now Heru-Bey, that is what the Court will call him.) The Indictment charged Defendant with one count of corruptly endeavoring to obstruct and impede the internal-revenue laws by various means - including the submission of false income-tax documents to his employer, the IRS, and a federal bankruptcy court - in violation of 26 U.S.C. § 7212(a), and two counts of attempting to evade or defeat taxes, in violation of 26 U.S.C. § 7201. Id. at 2-5. The case proceeded to trial on October 5, 2015, and a jury ultimately convicted him of the first charge and acquitted him of the latter two. See ECF No. 38.

         Following his conviction, Defendant filed a motion for a new trial on the ground that the Court had improperly responded to a jury note during deliberations. See United States v. Adams, 150 F.Supp.3d 32, 33-34 (D.D.C. 2015). Specifically, Heru-Bey argued that the Court should have instructed the jury that it had to unanimously agree on at least one of the specific means by which he had acted to obstruct or impede the internal-revenue laws. Id. The Court denied this motion both because Defendant had not sought such an instruction during the charge conference and because one would not have been legally correct. Id. The Court then sentenced him on April 14, 2016, to eleven months’ incarceration, followed by one year of supervised release, and ordered him to surrender himself to the Bureau of Prisons upon subsequent notification. See ECF No. 57.

         On April 28, 2016, Defendant filed a Notice of Appeal. See ECF No. 59. Following up, he has now filed a Motion for Release Pending Direct Appeal under 18 U.S.C. § 3143(b). The government opposes his request. The Court, meanwhile, has held his prison reporting in abeyance pending determination of this Motion. See Minute Order of April 26, 2016.

         II. Legal Standard

         Under 18 U.S.C. § 3143(b)(1), the Court must detain a defendant pending appeal unless it finds: (A) by clear and convincing evidence that he is not likely to flee or pose a danger to the safety of any other person or the community if released; (B) that the appeal is not for the purpose of delay; and (C) that the appeal raises a substantial question of law or fact likely to result in: (i) reversal, (ii) an order for a new trial, (iii) a sentence that does not include a term of imprisonment, or (iv) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process. Because the government does not dispute that Heru-Bey has satisfied subsections (A) and (B), the sole question here relates to subsection (C).

         An analysis of that subsection is generally construed as a dual inquiry: (1) Does the appeal raise a substantial question of law or fact? (2) If so, would the resolution of that question in Defendant’s favor be likely to lead to any of the results listed above? See United States v. Perholtz, 836 F.2d 554, 555 (D.C. Cir. 1988) (per curiam). As the government concedes the second prong, the Court’s focus is on the first.

         In determining whether Defendant has raised a substantial question, the Court keeps in mind that there is a presumption of a valid conviction when assessing motions for release pending direct appeal. See id. at 556. Defendant bears the burden of rebutting this presumption. United States v. Libby, 498 F.Supp.2d 1, 3 (D.D.C. 2007); see also United States v. Shoffner, 791 F.2d 586, 589 (7th Cir. 1986) (finding defendant must “demonstrate that he has a substantial question to present [on appeal] before he may be admitted to bail”). To determine whether a substantial question exists, the Court must inquire whether the defendant has raised an issue that is “a close question or one that very well could have been decided the other way.” Perholtz, 836 F.2d at 555 (finding that “close question” standard is “more demanding” than one that requires the inquiry to be “fairly debatable, ” “fairly doubtful, ” or simply “not frivolous”).

         III. Analysis

         In seeking his release, Defendant asserts that his appeal will raise three substantial questions of court error that are likely to result in a new trial. See Mot. at 2-3. These questions are (1) whether he forfeited his right to request a means-unanimity jury instruction; (2) whether unanimity within means is required as a matter of substantive or constitutional law for a § 7212(a) conviction; and (3) whether the government violated Batson during voir dire through its use of peremptory strikes. Id. Although the Court recognizes that it is far from infallible, it believes that it appropriately disposed of these three issues and that Defendant’s challenges are insufficient to warrant release. It considers each in turn.

         A. Forfeiture of Right to Jury Instruction

         Defendant first contends that whether he forfeited his right to a means-unanimity jury instruction - that is, a directive that all jurors must agree on which specific means (or acts) he took to obstruct or impede the internal-revenue laws - constitutes a substantial question. See Mot. 2-3. During the charge conference, Defendant concededly did not seek such an instruction. Adams, 150 F.Supp.3d at 35. Yet when the jury sent out a note during deliberations relating to the first count, Heru-Bey then requested that the Court include a means-unanimity directive in its response. Id. The Court refused, ruling in part that Defendant had forfeited his right to request such an instruction by failing to do so at the charge conference. Id. at 35-36 (although the Court and parties initially termed this failure a “waiver, ” the Court noted in its ruling on Defendant’s motion for a new trial that “it actually appears to be [a question] of forfeiture”). The Court also emphasized during this mid-deliberations colloquy that the note did not specifically raise the unanimity issue; as a result, including such an instruction in its response would be inappropriate. Id. Finally, as will be discussed below, the Court explained at trial that such a unanimity instruction would be legally incorrect. Id.

         The Court considered the forfeiture question for a second time in response to Defendant’s motion for a new trial. See id. at 36-37. Heru-Bey there maintained that, although he “did not object to [the jury] instructions” at the close of evidence, he did not forfeit his right to ask for a means-unanimity instruction because he timely requested one during arguments on how the Court should respond to the jury note. See Motion for New Trial at 2, 4-5. In other words, Defendant believed that the jury note presented him with a “second bite at the apple, ” Adams, 150 F.Supp.3d at 37, and that his timely request in response to that note vitiated his silence at the charge conference. The Court rejected Defendant’s argument on the same grounds that it relied on at trial - namely, because Defendant had forfeited his right to such instruction by never asking for it before the jury retired to deliberate, as required under Federal Rule of Criminal Procedure 30(d), and because the aforementioned jury note had “never actually posed the unanimity question” and thus did not present the “second bite” Defendant sought. Id. at 36-37 (quoting Fed. R. Crim. P. 30(d)); see also United States v. Hernandez, 146 F.3d 30, 35 (1st Cir. 1998) (“A party’s failure properly to preserve an objection to a jury instruction contained in the original charge forfeits the point, and the defaulting party cannot resuscitate [that] point by objecting to the Court’s later repetition of the same instruction in response to a jury question.”); United States v. Ladd, 885 F.2d 954, 961 (1st Cir. 1989) (stating that “trial court should confine its response to the approximate boundaries of the jury’s inquiry”).

         In his current Motion, Defendant offers no new arguments, and the Court’s findings and reasoning thus remain the same. Yet even if this forfeiture issue did present a substantial question, Defendant’s appeal would not result in a new trial unless a means-unanimity instruction was actually appropriate. As explained previously in response to Defendant’s motion for a new trial and again below, that is not the case.

         B. Unanimity Within Means

         Defendant’s second contention is that whether “unanimity is . . . required as a matter of substantive or constitutional law” is a substantial question. See Mot. at 2-3. As with the forfeiture question, Heru-Bey also previously raised this issue in his motion for a new trial. See Adams, 150 F.Supp.3d at 37-38. In that motion, he supported his position with “an unpublished opinion from the Tenth Circuit, United States v. Wood, 384 Fed. App’x 698 (10th Cir. 2010), in which the district court did give a unanimity instruction [where] the defendant was similarly charged with corruptly endeavoring to obstruct and impede the internal-revenue laws.” Id. at 37. This Court, however, ruled that Wood did not provide a basis for granting a new trial because the Tenth Circuit “never offered any opinion on [the] legal propriety” of the instruction in Wood and later found - in a different case - that “a unanimity instruction is improper in relation to the count on which Heru-Bey was convicted.” Id. (citing Wood, 384 Fed. App’x at 708, and United States v. Sorensen, 801 F.3d 1217, 1235, 1237 (10th Cir. 2015)). The Court also pointed out that the Supreme Court and other circuits have generally held that juries must be unanimous about the elements of offenses, but not the means by which defendant’s actions satisfy those elements. Id. (citing Richardson v. United States, 526 U.S. 813, 817 (1999) (“[A] federal jury need not always decide unanimously which of several possible sets of underlying brute facts make up a particular element, say, which of several possible means the defendant used to commit an element of a crime.”); United States v. Daniel, 749 F.3d 608, 614 (7th Cir. 2014) (upholding district court’s denial of request by defendant charged with scheme to defraud for unanimity instruction regarding specific fraudulent representations because such representations “were merely the means he used to commit an element of the crime”); United States v. Davis, 306 F.3d 398, 414 (6th Cir. 2002) (“[A]lthough there may have been various means by which Defendant aided and abetted in the underlying offenses for which he was convicted, no unanimity instruction with regard to these various means was necessary.”)); see also Schad v. Arizona, 501 U.S. 624, 626 (1991) (Scalia, J, concurring) (“[I]t has long been the general rule that when a single crime can be committed in various ways, jurors need not agree on the mode of commission.”).

         Defendant presents only one new argument in this Motion. He asserts that jury “unanimity” is a “fundamental concern” of the judicial system. See Mot. at 3-4 & n.3. This Court has never held otherwise, but that assertion does not answer the question of whether the jury must be unanimous in this case about both the elements of the offense and the means by which such elements are accomplished. The uniformity of the caselaw compels the Court to find that Heru-Bey has not presented a substantial question on this issue.

         C. Batson Challenge

         Defendant last maintains that his appellate challenge to the government’s use of peremptory strikes of black jurors during voir dire raises a substantial question. He did not discuss this issue in his prior motion for a new trial. The outcome is nonetheless the same as for the two issues that he did previously raise.

         Under Batson, a trial court must apply a three-step process to adjudicate a claim that a peremptory challenge was based on race: “First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race; second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question; and third, in light of the parties’ submissions, the trial court must determine whether the defendant has shown purposeful discrimination.” Snyder v. Louisiana, 552 U.S. 472, 476-77 (2008) (internal quotation marks and alterations omitted). It is worth noting that the Court at trial expressed its concern that the government had used all seven of its strikes on black jurors. See Trial Tr., attached as Appendix, at 11:17-18 (“And I'm loath[] to uphold all the strikes, given that I see that they're all black jurors.”). It reiterates here that prudent counsel typically do not even approach the Batson prima facie line.

         In any event, the Court at step one easily agreed that Defendant had established a prima facie case of racial discrimination where the qualified jury pool was only 44% black - i.e., eighteen whites and fourteen blacks were qualified. Id. at 1:7-14; see United States v. Gooch, 665 F.3d 1318, 1327 (D.C. Cir. 2012) (finding prima facie case supported when prosecution “exercises a disproportionate share of its total peremptory strikes against members of a cognizable racial group compared to the percentage of that racial group in the venire”); id. at 1327-28 (finding prima facie case supported where prosecution used sixteen of twenty-two strikes on black venirepersons and qualified jury pool was only 50% black). This was true even though the twelve ultimately seated jurors included three black members. See App. at 16:9-10; see also Miller-El v. Dretke, 545 U.S. 231, 240-41 (2005) (finding prima facie case where one black juror remained on jury and prosecution used ten of fourteen strikes on blacks, eliminating 91% of eligible black jurors); Johnson v. United States, 545 U.S. 162, 168 (2005) (holding that “defendant must make out a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose”) (quoting Batson, 476, U.S. at 93-94).

         The Court next required the government to justify each of its strikes and then heard defense arguments on pretext. “[I]n considering a Batson objection, ” the trial court must consider “all of the circumstances that bear upon the issue of racial animosity.” Snyder, 552 U.S. at 477. This may include an office’s “specific policy of systematically excluding [a particular race] from juries, ” Miller-El, 545 U.S. at 263, “direct comparisons between ‘similarly situated’ venirepersons of different races, ” Coulter v. McCann, 484 F.3d 459, 465 (7th Cir. 2007) (quoting Miller-El, 545 U.S. at 247), and the veracity and logic of the challenged party’s justifications. Snyder, 552 U.S. at 482-483. Here, the Court carefully examined the government’s proffered basis for striking each black juror and determined whether it was truly race-neutral or could equally apply to white jurors in the pool who were not struck, thereby raising an inference of race-based decisionmaking. At no point did the Court find the government untruthful. For example, the Court accepted the government’s explanation that one struck juror had difficulty understanding English and thus might struggle to follow the evidence at trial. See App. at 4:7-5:18. Likewise, the government reasonably concluded that another struck juror might be biased against it because she believed her uncle had been treated unfairly by either the police or prosecution when he was convicted in a narcotics case. Id. at 6:17-8:5.

         Arguably the closest challenge concerned Juror 0857, a black woman whom the government struck because the father of her children was imprisoned. Id. at 9:21-10:7. The government stated that it was concerned that Juror 0857 might be biased against conviction as a result of this “family situation” because Defendant’s incarceration could “impact . . . the mother of his children who, for example, would not be getting child support.” Id. at 10:3-7. Defendant countered that there were white jurors who were not struck but had “cousins [who were] locked up.” Id. at 10:23-11:2. According to Defendant, “Presumably, those cousins had kids . . . who would [engender] the same sympathies” in those jurors. Id. at 11:2-4. The Court upheld the strike, noting the closer familial relationship. Id. at 11:5.

         Multiple courts across the country have considered the strength of jurors’ relationships to different types of imprisoned family members. They have largely held that a juror may be struck on the basis of an imprisoned relative even if there is an unstruck juror of another race who also has a relation in prison, so long as the “degree of familial relation” between the struck juror and her incarcerated family member is “closer” than that between the juror who was not struck and his family member. See State v. Dominguez-Rodriguez, 471 S.W.3d 337, 347 (Mo.Ct.App. 2015) (allowing strike of black juror on basis of husband’s imprisonment despite failure to strike white juror whose nephews had been incarcerated in part because “having a close family member previously incarcerated [(husband)] . . . is different than having . . . a distant relative [(nephew)] . . . go to prison”); see also Golphin v. Branker, 519 F.3d 168, 186-87 (4th Cir. 2008) (allowing strike of black juror based on father’s prior imprisonment where unstruck white juror had sister and brother-in-law in prison because “the potential effect on [Juror 1] of growing up without a father because he was in the criminal justice system is bound to be different than the effect on [Juror 2] of having a ne’er-do-well sister and brother-in-law”). In other words, a juror with a close family member imprisoned is not necessarily “similarly situated” to one who has a more distant relative incarcerated. In this case, similarly, the father of the struck juror’s children presents a much closer relationship than the unstruck juror(s)’ cousins.

         As to all strikes, the Court relied on its own notes and recollections to verify the government’s statements and to assess and correct Defendant’s pretext arguments. See United States v. Moore, 651 F.3d 30, 41 (D.C. Cir. 2011) (approving of district court “question[ing] counsel, review[ing] its own notes, and correct[ing] mistakes by counsel” before “conclud[ing], based on the arguments and its personal observation of the prosecutors and of the prospective jurors’ demeanor, that the government’s race-neutral explanations were genuine”). It ultimately found that all the strikes were not based on race. See App. at 11:21-22.

         Although the government undoubtedly acts at its peril when it engages in such wholesale striking of jurors belonging to a particular group, the Court believes that no substantial question of a Batson violation exists here. See United States v. Clark, 747 F.3d 890, 894-95 (D.C. Cir. 2014) (affirming district court’s denial of Batson challenge when defendant could not show that strike justifications were necessarily inconsistent and therefore pretextual, and “comparative analysis provide[d] no ‘unmistakable’ evidence of the government’s discriminatory intent”) (quoting Gooch, 665 F.3d at 1332); Gooch, 665 F.3d at 1334 (rejecting Batson challenges because “the [g]overnment offer[ed] race-neutral reasons for [each] peremptory strike, and the defendant [could not] carry the burden of showing . . . discriminatory intent”); Moore, 651 F.3d at 44 (denying Batson challenge because defendant “failed to sufficiently undermine the government’s race-neutral explanations” and thereby failed to show that they were pretextual).

         IV. Conclusion

         Because the Court concludes that none of the issues presented by Defendant constitutes a substantial question of law or fact, it will deny his Motion for Release Pending Direct Appeal. An accompanying Order will so state.


         Batson challenge discussion



         JAMAL ADAMS.

         THE COURT: Let me have counsel approach.

         (Bench conference)

         MR. GARDNER: Your Honor, at this point, the defense would make a Batson challenge. The prosecution has struck entirely African-Americans from the jury.

         THE COURT: Let me take a look. Of the six the government strikes, all six are black jurors. Statistically, of the qualified jurors, there were 14 black jurors, 18 white jurors, black jurors are 44 percent of the venire and they constitute 100 percent of the strikes. So I believe the defense has made out a prima facie showing. Actually it is seven, because the alternate is also black.

         So let me hear the government's explanation. We'll start with 0286. That's the juror in seat five.

         MS. SISKIND: Your Honor, this individual stated that he works in the mental health field, including with individuals who may have criminal records. It is our position that individuals in the mental health field tend to be more sympathetic to defendants in criminal cases. So for that reason, we used a strike on him.

         MR. GARDNER: Your Honor, we would challenge that. I don't see any background for that. He doesn't have any history of working with police officers, our client doesn't have any criminal history. It is just not applicable to our client. I would ask him to be seated.

         THE COURT: It is applicable to a criminal defendant is the point. I think that's a race neutral reason. There weren't others in the mental health field who are white who weren't struck. So I will uphold that one.

         The next juror is 0909. That's the juror who is now in seat one.

         MS. SISKIND: Your Honor, when this juror came up, he expressed some confusion regarding some of the questions. And the government was concerned he might not have understood some of the questions, and therefore would not be able to understand the evidence at trial.

         MR. GARDNER: We would object to that one also. He seemed crystal clear to me up here. I would ask to go back and listen to the tape before you make a ...

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