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Bost v. United States

Court of Appeals of The District of Columbia

February 15, 2018

Robert L. Bost, Jeffrey Best, Lamar J. Williams, Sanquan Carter, and Orlando Carter, Appellants,
United States, Appellee.

          Argued November 16, 2016

         Appeals from the Superior Court of the District of Columbia (CF1-7155-10, CF1-7370-10, CF1-7157-10, CF1-5176-10, and CF1-5677-10) (Hon. Ronna Lee Beck, Trial Judge)

          Kristina A. Crooks for appellant Robert L. Bost

          E. Benton Keatley, with whom Jeffrey T Green, Lowell J. Schiller, Karen S. Smith, and Blair J. Greenwald were on the brief, for appellant Jeffrey Best.

          Thomas T Heslep for appellant Lamar J. Williams.

          Joshua Deahl, Public Defender Service, with whom James Klein and Samia Fam, Public Defender Service, were on the brief, for appellant Sanquan Carter.

          R. Trent McCotter, with whom Jessie K. Lin and Michael W. Khoo were on the brief, for appellant Orlando Carter.

          Stephen F. Richard, Assistant United States Attorney, with whom Charming D. Phillips, United States Attorney at the time the brief was filed, and Elizabeth Trosman, John P. Mannarino, Michael D. Brittin, and T. Anthony Quinn, Assistant United States Attorneys, were on the brief, for appellee.

          Before Blackburne-Rigsby, Chief Judge [*] Fisher, Associate Judge, and Ferren, Senior Judge.


         Table of Contents

         I. Factual Background.....................................................................................5

         A. First Conspiracy: Alabama Avenue Shooting................................5

         B. Retaliatory Shooting of Orlando......................................................9

         C. Second Conspiracy: Murder of Tavon Nelson and South Capitol Street Shooting..........................................................10

         D. Government's Evidence of the Crimes.........................................13

         E. Convictions and Sentences.............................................................18

         II. Pretrial Issues...........................................................................................19

         A. Change of Venue...........................................................................19

         B. Joinder and Severance....................................................................26

         III. Issues Arising During Trial.....................................................................50

         A. Prosecutor's Statements During Opening and Closing.................50

         B. Technical Issues with Husher........................................................62

         C. Statements Against Penal Interest..................................................69

         D. Withdrawal From Conspiracy Jury Instruction.............................83

         E. Other Issues....................................................................................87

         IV. Juror's Note.............................................................................................90

         V. Best's Ineffective Assistance of Counsel Claim......................................98

         VI. Conclusion......................................................................116

         Following an extended months-long joint jury trial, appellants Robert Bost, Jeffrey Best, Sanquan Carter, Orlando Carter, [1] and Lamar Williams were each convicted of participating in at least one of two separate, but related conspiracies to commit murder that in total left five dead and eight injured. Specifically, Best, Sanquan, and Orlando were found guilty of murdering Jordan Howe and injuring two others on March 22, 2010, in retaliation for the theft of Sanquan's bracelet ("first conspiracy").[2] On March 23, 2010, to avenge Howe's murder, Howe's half-brother, Marquis Hicks, along with three friends, shot Orlando. In retaliation for Orlando's shooting, Bost, Orlando, Best, and Williams conspired to murder Howe's friends ("second conspiracy").[3] On March 30, 2010, Bost, Orlando, and Best murdered Tavon Nelson for his firearm and then the three co-conspirators, with assistance from Williams, conducted a drive-by shooting on the 4000 block of South Capitol Street, Washington, D.C., where some of Howe's friends had gathered in Howe's remembrance. The shooting left three dead and six wounded.[4]

         In their consolidated appeals, appellants - both jointly and individually - allege that several errors occurred during the course of their joint jury trial. For the forthcoming reasons, we affirm the judgments of the Superior Court. In light of the length of this opinion, we set forth below the following table of contents as an aid to the reader.

         I. Factual Background

         A. First Conspiracy: Alabama Avenue Shooting[5]

         On the night of March 21, 2010, Sanquan was at a party with a group of acquaintances, including Andre Morgan and Jordan Howe, who were godbrothers, in the basement apartment of Jam'ya Wilkins, located at 1333 Alabama Avenue, Southeast, Washington, D.C. At the party, Sanquan showed off his fake diamond bracelet to numerous individuals, including Howe. After the party, Sanquan realized that his bracelet had been stolen. He became upset and rampaged through Wilkins's apartment looking for the bracelet, which he suspected that one of the men at the party had stolen. Sanquan, with assistance from Morgan, then went to find Howe at Howe's apartment, where Sanquan confronted Howe about the bracelet. In response, Howe told Sanquan, "[M]an, nobody got that fake bracelet, not nobody, " and Sanquan responded, "[Y]'all motherfu**ers playing. Y'all need to come up with the bracelet." Morgan and Sanquan then attempted to find and confront the other men at the party, but were unable to locate them. Undeterred, on his way back to the apartment building on Alabama Avenue, Sanquan called his older brother Orlando and told him that he had been robbed and to "bring everything."

         When Sanquan called, Orlando was with his friend, Nathaniel Simms, in a silver Kia Spectra, which belonged to Simms's girlfriend, Brittany Young. Orlando told Sanquan on the phone, "[W]e about to be on our way up there" and he then told Simms that Sanquan had just been robbed and that they needed to pick up their other friend, Best, to ride with them to meet Sanquan. Simms and Orlando first went to the home of Orlando's godmother, Shiree Little, where Orlando picked up his AK-47 rifle, and afterwards, they picked up Best from his home. The three men then went to Williams's home, where Williams gave them Simms's .380 pistol and Williams's shotgun. Orlando told the group, "[M]otherfu**ers robbed my little brother[;] they going to see." Best replied, "[O]h, yeah, I love this sh**. I love this sh**." Williams then showed Best how to use the shotgun. In preparation for the encounter, Orlando switched from his bright red jacket into a black jacket that was in the Kia's trunk and Best also switched into another jacket. Williams got out of the car before the men drove off toward 1333 Alabama Avenue, Southeast.

         When Simms, Orlando, and Best arrived at Alabama Avenue, Sanquan approached the car and Orlando told him to "come on." Sanquan replied, "You think I brought [you] all the way over here for nothing?" Sanquan then took the .380 pistol from Simms. Sanquan, Orlando, and Best approached the apartment building where the party had occurred earlier and where numerous individuals who had attended the party were still standing outside. Sanquan brandished the .380 pistol, Orlando brandished the AK-47, and Best held the shotgun, while Simms remained in the car.

         Sanquan held the individuals in front of the apartment at gunpoint while he patted them down and demanded the return of his bracelet. After one of the individuals refused to be patted down, Sanquan turned to Orlando and Orlando asked Sanquan if he should, "Go ham?", i.e., whether they should start shooting, to which Sanquan replied, "Go ham." The three men then started shooting at the group indiscriminately. Sanquan fired all five rounds that had been in the .380 pistol, Orlando fired all twenty-eight rounds from the AK-47, and Best fired the shotgun three times. During the shooting, Howe, who was in a car nearby, was hit by a stray bullet and died, while two others, juvenile V.K.M. and Tavon Lambert, were injured by the gunfire.

         After seeing Howe's body and realizing that Howe was dead, Morgan, who had supported Sanquan up to that point but who was Howe's godbrother, left the scene vowing revenge on the Carter brothers. He immediately went to meet with other friends and told them what had occurred, and they all formed an agreement to murder Sanquan and Orlando in retaliation. Jordan Howe's cousin, Kalisha Howe, who had been present during the shooting, remained on the scene and identified Sanquan that night to the police from a photograph. She also identified Orlando from a nine-person photo array the following day, saying it "could be" him. Wilkins, the woman who hosted the party in her basement apartment, also identified Sanquan on the night of the shooting.

         After the shooting, Simms drove Sanquan, Orlando, and Best to the apartment of one of the Carter brothers' relatives by marriage, Ronald Ray. At the apartment, the men hid their weapons and boasted about the shooting. Sanquan explained to the men what had happened before their arrival and complained that he was given a gun with only five bullets. Best said that he was not sure if he had successfully fired the shotgun, but thought he may have once. Orlando bragged that he had shot Howe and shot at a "nosy" woman on the top floor of the apartment building.[6] After the discussion, Simms alone left Ray's apartment. The next day, while Simms was in the Kia with his girlfriend, Young, he met Orlando and Best and allowed Orlando to get his red jacket and Best to get his black jacket from the trunk of the car, all of which Young later testified to witnessing.

         B. Retaliatory Shooting of Orlando

         On March 23, 2010, police arrested Sanquan for his involvement in Howe's murder. Meanwhile, Morgan planned his retaliation for Howe's murder with Howe's half-brother, Marquis Hicks, and two friends. Morgan and the three others drove to Sixth and Chesapeake Streets, Southeast, a location where Orlando was known to hang out, and recognized Orlando in his red jacket. Hicks approached Orlando on foot and shot him, resulting in a graze to Orlando's head and a bullet in his shoulder. Best and Bost, who was another friend of Orlando's, were present during the shooting. At the hospital, Orlando told Best, Bost, and Simms that Sanquan had been arrested, and that the guns had to be moved from Ray's apartment. Simms and Best moved the shotgun and the AK-47 from Ray's apartment to Williams's apartment.

         C. Second Conspiracy: Murder of Tavon Nelson and South Capitol Street Shooting

         The next day, Simms and Best visited Orlando at his mother's house, where Orlando told them that he believed his shooter was one of Howe's friends, and that he wanted to attack Howe's funeral in revenge (which was to take place on March 30). In conjunction with Simms, Best, Bost, and Williams, Orlando decided to procure more guns and to rent a minivan for the shooting. On March 27, 2010, Orlando, Simms, Best and Bost obtained a 9mm pistol from Orlando's father and Bost independently obtained a .45 pistol. Simms and Best bought and delivered two boxes of ammunition to Williams. On March 29, Simms, Orlando and Best tried three times to rent a minivan, but no one had sufficient credit to successfully rent the minivan. Orlando then asked his godmother to rent the minivan from a rent-a-car facility and, after two failed attempts, they successfully rented a silver Chrysler Town & Country minivan at about 5:45 p.m. on March 30; however, Howe's funeral had already taken place by that time.

         Undeterred, Orlando set into motion a new plan to shoot Howe's relatives. First, Orlando, Best, Bost, Simms, and Williams retrieved the firearms and ammunition. Once the weapons were recovered and the co-conspirators were driving in the van, however, Williams told the others, "Y'all about to go commence. Y'all can let me out right here, " and he exited the van. Because they only had three guns (AK-47, 9mm Glock, and .45 pistol) amongst the four of them, Orlando drove to the Wingate Apartments to rob a man, Tavon Nelson, who he knew carried a gun. Orlando sent Best and Bost to rob Nelson. Best took the 9mm and Bost took the .45 and both wore masks rolled-up to the top of their heads. Best and Bost attempted to rob Nelson and a shootout occurred at which Nelson was killed. Bost admitted to his cohorts back at the van that he was the one who dealt the killing blow, stating, "Yeah, [Best] hit him, but I finished him." When Orlando asked where the gun was, however, Best replied that it was left behind with Nelson, which upset Orlando but he decided nonetheless to drive away without Nelson's gun. Police responded to the scene within minutes and a witness informed them that, after the shooting, she saw a man run and enter a silver Chrysler Town & Country minivan. Police recovered seven 9mm shell casings and three .45 shell casings from the scene of Nelson's murder.

         Orlando then drove the van immediately to the 4000 block of South Capitol Street, where many of Howe's friends were gathered in a front yard, wearing remembrance shirts from Howe's funeral. Orlando drove up close to the crowd and lowered the van's windows. Orlando told the other men, "When I pull over, have them guns hanging out the window." All of the men then pulled down their masks and began firing their weapons. As Orlando drove, Bost fired the .45 pistol from the front passenger window, Simms fired the AK-47 from the rear passenger window, and Best fired the 9mm Glock from both the rear passenger window and the rear driver's side window. Numerous individuals were shot.

         Following the shooting, Metropolitan Police Department ("MPD") Sergeant Laswuan Washington and his partner, Sergeant Cowan, pursued the minivan because it matched the lookout description officers had received from the witness at the scene of Nelson's murder. During the pursuit, Sergeant Washington caught a glimpse of Orlando. As the police pursued the minivan, Simms threw the AK-47 out of one of the windows. Orlando then hit a police car in a nearby alley and all four men jumped out of the van and started running in different directions. Officer Christopher Dyke chased Orlando and Best and observed them both remove and throw their jackets to the ground as they ran. When the two men split up, Officer Dyke followed Orlando and caught him, while another officer recovered Best's jacket. Meanwhile, Simms, who had been running in a different direction, was chased down by Officer Jeremy Bank and eventually surrendered. Officer Daniel Egbert saw Bost flee from the van and pursued him, but was unable to catch him. Best and Bost were both later apprehended by the police in connection with the murders.

         At the scene of the South Capitol Street shooting, the police found the dying and injured victims "piled up on top of each other." Brishell Jones, Devaughn Boyd, and William Jones died from their injuries, while six others survived their injuries, but one of whom suffered a severe brain injury.

         D. Government's Evidence of the Crimes

         At the subsequent joint trial of the five co-defendants, [7] the government presented considerable evidence linking all five appellants to one or both of the mass shootings. The government's strongest evidence in proving its case, included:

         1. Testimonial Evidence

         Testimony from Nathaniel Simms regarding both conspiracies: Simms testified as a government witness to the events leading up to and during the three shootings on Alabama Avenue, at the Wingate Apartment complex, and on South Capitol Street. Simms testified that, around midnight on March 22, 2010, he, Orlando, and Best gathered firearms and drove to Alabama Avenue after learning that Sanquan had been robbed. Simms testified that he stayed in the car, while Orlando, Best and Sanquan approached a group on Alabama Avenue and opened fire. With regard to the shooting on March 30 on South Capitol Street, Simms testified that he, Orlando, Bost, and Best had planned to shoot Howe's associates in retaliation for the prior shooting of Orlando. He testified that, before the South Capitol Street shooting, the four of them rode in a minivan to the Wingate Apartment complex, where Bost and Best unsuccessfully attempted to rob Nelson of his firearm. Simms further testified that he, Orlando, Bost and Best then rode to South Capitol Street, where he, Bost, and Best all fired weapons into a crowd of people wearing remembrance shirts for Jordan Howe.

         Best's confession to Martaraina Salazar: The government presented testimony from Martaraina Salazar, Simms's girlfriend, that, at about midnight on the night of the South Capitol Street shooting, Best came to her home and picked up a bag that Simms had left there. Salazar testified that Best later returned and, as they smoked marijuana, he told her details of the shooting. He told her that Simms shot the AK-47 while Bost shot the .45 pistol, that Orlando drove the van, and that a girl had been shot in the head. Best also told Salazar that he hoped that Orlando and Simms would not implicate him. Salazar testified to Best's confession at trial.

         Best's confession to his mother and arrest: On April 22, 2010, police executed a series of search warrants based in part on the information the officers received from Simms. One of the searches was conducted at the home of Best's mother, Laverne Best. Best called and told his uncle about the search and his uncle picked him up. Best denied any involvement in the shootings to his uncle, but was crying and nervous. Best's uncle urged him to turn himself in, but Best got out of the car and ran away. Best's mother Ms. Best, also spoke to Best on the phone and urged him to turn himself in, but Best refused. On April 26, police located and arrested Best. The police brought Ms. Best to the police station, where she, Best, and a detective spoke in an interrogation room. Once the detective left the room, Best and his mother had a private conversation, which was captured on video. Ms. Best asked her son, "[Y]ou didn't hurt no one, huh? . . . Did you? . . . Huh? ... So that's true out there, huh? Huh?" There was a dispute as to whether Best nodded in response, but the recording of the conversation demonstrated that Best did appear to slightly lower his head and raise it back up, and then look at his mother and move his head again. After this non-verbal response, she asked him, "What for? Cause he shot Orlando?" Best then started crying, lowered his head again, and asked his mother for a hug, and she responded, "Yea Jeffrey, but I don't know why you would do something like that ... see what Orlando got you into." At trial, Ms. Best was shown the video of her conversation with her son, but she testified that she had not seen her son nod his head or admit involvement. She was impeached with her grand jury testimony, however, during which Ms. Best stated that she had observed her son nod his head.[8]

         2. Forensic Evidence

         Minivan: Police searched the minivan and recovered seven AK-47-type casings. Inside the front of the van, police found Orlando's cell phone, which contained a text message from a number associated with Simms, stating "Funeral on Tuesday." A mask and a hat containing DNA mixtures, including Orlando's DNA, were recovered from between the front seats. A cigarette butt containing Simms's DNA was found near the rear passenger seat. A swab from the front passenger side door of the minivan contained a single-source partial profile, from which Bost could not be excluded. DNA testing, however, did not reveal Best's nor Williams's DNA inside the minivan.

         Clothing: A DNA sample from the jacket that Officer Dyke recovered during the chase revealed a mixture of at least three individuals; while the swabbing revealed no major contributor, the major contributor of the cutting matched Best's DNA. A mouth cutting and forehead cutting from the mask recovered behind the church contained mixtures of at least two people's DNA, of which Bost was the major contributor.

         Forensic evidence of the shell casings and bullets: Shell casings from the .380 pistol that Sanquan fired were recovered from the scene of the Alabama Avenue shooting. The AK-47 thrown during the chase following the South Capitol Street shooting also matched the casings recovered from both the scene of the Alabama Avenue shooting and the South Capitol Street shooting. The 9mm and .45 caliber casings, recovered from the shooting of Tavon Nelson, were fired by the same weapons that left casings at the South Capitol Street shooting.

         3. Record Evidence

         Phone Records: An analysis of appellants' call records showed a web of completed and attempted communications between all appellants (other than Sanquan) in the months leading up to the South Capitol Street shooting on March 30, 2010. However, after the South Capitol Street shooting, Best, Bost, and Williams continued communicating, but none of the three tried to call Orlando or Simms. By April 3, 2010, all communications stopped amongst appellants' phones.

         E. Convictions and Sentences

         On February 21, 2012, appellants were jointly tried for their involvement in either one or both of the conspiracies.[9] Following a three-month trial, on May 7, 2012, the jury convicted Sanquan, Orlando, Bost, and Best of all counts. Williams was acquitted of any involvement in the first conspiracy regarding the Alabama Avenue shooting, but was convicted of lesser-included second-degree murder charges for his involvement in the second conspiracy related to the South Capitol Street shooting. On September 11, 2012, Orlando, Bost, and Best were sentenced to life imprisonment without release, Sanquan was sentenced to 54 years of imprisonment, and Williams was sentenced to 30 years of imprisonment. These consolidated appeals followed.

         II. Pretrial Issues

         A. Change of Venue

         Orlando, joined by all appellants, argues that the trial court erred in denying his motion for a change of venue to a federal court outside of the District of Columbia, and that, in doing so, the trial court violated his constitutional right to a fair trial.

         1. Additional Factual Background

         On January 19, 2012, Orlando filed a motion seeking a change of venue. He claimed that because of the "pervasive and irremediable adverse local pretrial publicity" regarding his charged role in the South Capitol Street murders, it was impossible for him to receive a fair trial in the District of Columbia, and that the Sixth Amendment required his case to be transferred to a federal district court outside of Washington, D.C. Orlando claimed that Super. Ct. Crim. R. 20 (a) authorizes a change of venue for such a purpose.[10]

         The trial court summarily denied Orlando's motion to change venue during a pretrial hearing on January 27. The court later explained its decision on February 9, observing that the Court of Appeals already "has said that there is no ability for change of venue in the District of Columbia, " and that "[m]ore . . . significantly" the court was "confident [that it could] pick a fair jury" for the case. The record reflects that the trial court conducted an extensive jury selection process that spanned four days, and that during the voir dire, the court questioned the prospective jurors regarding what, if anything, they had heard about the South Capitol Street murders, including their exposure to any media coverage of the mass shooting. Ultimately, of the selected jury, nine jurors did not recall media coverage of the shooting, while three of the jurors[11] were exposed to only minimal coverage such that the court and all of the defendants[12] were confident that it would not have an effect on the jurors' ability to be fair and impartial. Further, the trial court admonished the jury both during preliminary and final jury instructions to avoid any outside publicity on the shooting and to decide the case based solely on the evidence presented at trial.

         2. Analysis

         The trial court did not err in denying Orlando's motion for a change of venue because that relief is not available for cases tried before the Superior Court of the District of Columbia.[13] It is a fundamental Sixth Amendment right that defendants are entitled to "a fair trial by a panel of impartial, 'indifferent' jurors, " Welch v. United States, 466 A.2d 829, 834 (D.C. 1983) (quoting Irvin v. Dowd, 366 U.S. 717, 722 (1961)), and ordinarily a change of venue is "an appropriate remedy" "[w]hen a threat to this constitutional protection is posed . . . ." Id. However, because the Superior Court of the District of Columbia "sits as a single unitary judicial district, " a change of venue is not available in the District of Columbia. Id. (citing United States v. Edwards, 430 A.2d 1321, 1345 (D.C. 1981) (en banc)). Accordingly, we have said that the trial court's denial of a motion for a change of venue is "required." Id. Because it is a "fundamental" rule "in our jurisdiction that 'no division of this court will overrule a prior decision of this court'" Washington v. Guest Servs., Inc., 718 A.2d 1071, 1075 (D.C. 1998) (quoting M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971)) (footnote omitted), absent en banc rehearing, the trial court's denial of Orlando's motion for a change of venue was likewise "required, " in this case. Welch, supra, 466 A.2d at 834.

         Further, Orlando's constitutional right to a fair trial was not violated.[14]"Appellant's right to a fair trial by an impartial jury is not defeated . . . merely because the requested remedy is unavailable." Welch, supra, 466 A.2d at 834. "Instead, other measures must be employed to assure that appellant's right to a fair trial is preserved." Id. at 834-35. "[I]n the absence of extreme circumstances, the Sixth Amendment inquiry [usually] turns on the adequacy of the voir dire." Id. at 835 (citations omitted). In Welch, we explained:

[T]he test we apply in scrutinizing the effectiveness of the voir dire examinations is not whether a juror had been exposed to the facts and issues of the case nor whether he or she has formed an opinion as to the guilt or innocence of the accused but rather whether the nature and strength of the opinion formed are such as to raise the presumption of partiality.

Id. at 836. Key considerations in making this determination include the juror's own assertion of whether he or she "is able to lay aside his or her impressions" and the trial court's assessment of the juror's demeanor, which is a decision "particularly within the province of the trial judge." Id. (citations and internal quotation marks omitted).

         Here, admittedly, the initial pretrial publicity surrounding the South Capitol Street murders was high, which is not surprising given the number of casualties involved. However, the record also demonstrates that the trial court carefully ensured that appellants' rights to a fair and impartial jury were protected through the voir dire process. Jury selection took place over the course of four days and each prospective juror was individually asked by the court about his or her knowledge of the South Capitol Street murders. The government and defense counsel for each appellant were given the opportunity to further question and strike jurors. The trial court also excused jurors who indicated that they may have been influenced by media coverage.

         In fact, it is noteworthy that, for such a high-profile case, of the twelve jurors eventually selected, nine had no recollection of relevant media coverage and three were exposed to only minimal coverage. All three jurors who were exposed to some pretrial publicity expressly stated that it would not influence their decision. Because we give weight to a juror's own assertion of his or her ability to be impartial and defer to the trial court's assessment of a juror's credibility, we hold that the trial court's safeguards during "voir dire served to protect the right to a fair trial by an impartial jury." Welch, supra, 466 A.2d at 837 (citations omitted). Our conclusion is bolstered by appellants' defense counsels' failure to object to any of the impaneled jurors, including the ones who had been exposed to some pretrial publicity, and the fact that Orlando on appeal has not presented any evidence that the jury was actually partial. See United States v. Haldeman, 559 F.2d 31, 60 (D.C. Cir. 1976) (en banc).

         B. Joinder and Severance

         Sanquan argues that, because he was only charged with participating in the first conspiracy (the Alabama Avenue shooting), the trial court erred in joining his case with his co-appellants' charges stemming from the second conspiracy that led to the South Capitol Street murders. Bost makes the same argument but in reverse; he argues that because he was only charged with participating in the second conspiracy, his case was misjoined with his co-appellants' charges relating to the first conspiracy. They each claim their individual case was prejudiced by the joinder of the two conspiracies. Further, they both alternatively argue that the trial court abused its discretion by refusing to grant their motions for severance.

         1. Additional Factual Background

         On April 20, 2011, the grand jury returned a superseding indictment that explained the government's theory of the case, including the causal relationship between the first conspiracy and the second conspiracy. The indictment first alleged that Sanquan, Orlando, Best, Williams, and Simms conspired "to assault and kill individuals believed to be responsible for taking" Sanquan's bracelet. Pursuant to this first conspiracy, the conspirators hunted for the individuals that Sanquan believed were responsible for the theft. Upon locating these individuals, Sanquan and his cohorts assembled and searched them for the missing bracelet and, when Sanquan could not find it, he became "infuriated" and told Orlando and Best to shoot them. Howe was killed in the ensuing hail of gunfire that also wounded V.K.M. and Lambert. Later, Howe's godbrother, Morgan, half-brother, Hicks, and two other friends shot Orlando in retaliation for Howe's murder.

         The indictment further alleged that Orlando, Best, Williams, Simms, and Bost next conspired "to assault and kill friends and associates of Jordan Howe . . . in retaliation for the shooting of Orlando Carter that occurred on or about March 23, 2010 . . . ." According to the indictment, Orlando "vowed to exact violent revenge and, to that end, recruited co-conspirators" Best, Williams, Simms, and Bost to assist him in killing "as many friends and associates of Jordan Howe as they possibly could . . . ." The conspirators gathered as many firearms as they could find and Orlando instructed Best and Bost to rob Tavon Nelson for his firearm. Best and Bost then shot and murdered Nelson. The conspirators then drove a rented minivan to the 4000 block of South Capitol Street, where Howe's friends and associates were congregated in remembrance of Howe, and fired multiple weapons, leading to the death of three people and the wounding of six others.

         Based on the government's theory of the case as articulated in the indictment, Sanquan and Bost filed pretrial motions to declare misjoinder and, alternatively, for severance.[15] The government filed a consolidated opposition to Sanquan's and Bost's motions, claiming principally that the joinder of the two conspiracies was proper because the first conspiracy "logically" led to the second conspiracy, and that the two conspiracies operated "so closely connected in time and place" that there was substantial overlap of evidence. The trial court denied Sanquan's and Bost's motions to declare misjoinder and grant severance on January 6, 2012. The court later explained its reasoning during the pretrial hearing on February 9, stating that joinder is proper under Super. Ct. Crim. R. 8 (b) "when one offense leads logically to another, " such as "when the subsequent offense is a sequel to the initial offense."

         Here, the court found the second conspiracy to commit murder was a sequel to the first conspiracy to commit murder because the "killing of Jordan Howe was the catalyst for the . . . retaliatory attempt on Orlando Carter's life" that led Orlando to conspire with others to embark on the murder of Nelson and the South Capitol Street murders. The court further noted that Sanquan's and Bost's motions for severance were "meritless" because they "have failed to rebut the strong presumption in favor of a joint trial after the defendants and offenses were properly joined." Because there was a "substantial overlap of evidence with respect to the two charged conspiracies, " the trial court explained, "severance would result in significant prejudice to the [g]overnment and the substantial expenditure of additional resources by the court." The court cited examples of this overlap, including: (1) "the relationship among the defendants"; (2) four individuals (Orlando, Best, Williams, and Simms) are alleged to have participated in both conspiracies; (3) the same AK-47 assault rifle was alleged to have been used in both conspiracies; and (4) the motive for the second conspiracy "grew out of a crime committed in retaliation for the first conspiracy." Lastly, the court emphasized that it was "confident that the case can be tried in a way that will enable the jury to make individual determinations about the guilt or innocence of each defendant." Accordingly, the court explained that, in its preliminary instructions to the jury, it would "point[] out who is or isn't charged in the first alleged conspiracy and who is or isn't charged with respect to Tavon Nelson, and who is or isn't charged . . . with respect to the second conspiracy."

         Several steps were taken during the course of trial to ensure that the jury was clear as to the charges pertaining to each individual appellant. As the court promised, it explained in its preliminary instructions to the jury that Sanquan was not charged under the second conspiracy and Bost was not charged under the first conspiracy, and that each defendant must be given "separate consideration." During Simms's testimony, in the middle of trial, the parties also agreed that the trial court would give the following jury instruction:

Any statement made by a defendant after March 22nd, 2010 is not to be used as evidence against Sanquan Carter. Sanquan Carter is not charged with any crime after March 22nd, 2010. Likewise, any statement made by a defendant before March 23rd, 2010 is not to be used as evidence against Robert Bost.

         The court then again instructed the jury during its closing instructions that "[e]ach [d]efendant is entitled to have the issue of his guilt as to each of the crimes for which he is on trial determined by his own conduct and from the evidence that applies to him as if he were being tried alone." And, following the government's rebuttal of Sanquan's closing argument in which the prosecutor alluded to the fact that Sanquan's initial shooting "started a chain of events" that led to the South Capitol Street murders, the trial court sua sponte gave a strongly worded curative instruction:

It's for you to determine what connection, if any, there is between the events that are alleged to have occurred at 1333 Alabama Avenue and the events alleged to have occurred at the Wingate and at South Capitol Street. But to be sure that there's no confusion from the argument that's been made I want to underscore that Sanquan Carter is not charged with the conspiracy that's alleged to have occurred between March 23rd and March 30th. He's not charged with any of the crimes alleged to have been committed at the Wingate or on South Capitol Street, but even more fundamentally, there's not a shred of evidence that he has any responsibility whatsoever for the events that are alleged to have occurred between March 23rd and March 30th. So I just want to underscore that.

(Emphasis added). Lastly, when the jury sent a note during deliberations that it was confused about how to evaluate evidence against each individual defendant and about the co-conspirator liability instruction, by the parties' agreement, the trial court explained to the jury that the instructions were not inconsistent, and that, while "evidence of the conduct of a co-conspirator could potentially be part of the evidence that applies to a defendant. . . you are expected to evaluate the issue of each defendant's guilt individually . . . ."

         2. Legal Principles

         "Joinder of two or more defendants and multiple offenses in one indictment for trial is authorized by Rule 8 (b) . . . ." Davis v. United States, 367 A.2d 1254, 1260 (D.C. 1976).[16] "We employ a 'strong policy favoring joinder' because it 'expedites the administration of justice' in numerous ways." Ball v. United States, 26 A.3d 764, 767 (D.C. 2011) (citation omitted). "Moreover, joinder is preferred in conspiracy cases . . . ." United States v. Eiland, 406 F.Supp.2d 46, 50 (D.D.C. 2005) (referencing Fed. R. Crim. P. 8 (b)). That said, "[m]isjoinder ... is an error of law . . . subject[] . . . to de novo review." Ray v. United States, 472 A.2d 854, 857 (D.C. 1984). Super. Ct. Crim. R. 8 (b) ("Rule 8 (b)"), [17] at the time the indictment was returned, stated in full:

Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in 1 or more counts together or ...

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