United States District Court, District of Columbia
E. BOASBERG United States District Judge.
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.
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
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.
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.
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).
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.
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
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
Forfeiture of Right to Jury Instruction
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.
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”).
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.
Unanimity Within Means
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.”).
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.
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.
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.
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).
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.
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
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)’
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.
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
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.
COURT: Let me have counsel approach.
GARDNER: Your Honor, at this point, the defense would make a
Batson challenge. The prosecution has struck entirely
African-Americans from the jury.
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.
me hear the government's explanation. We'll start
with 0286. That's the juror in seat five.
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.
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.
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.
next juror is 0909. That's the juror who is now in seat
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.
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 ...