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United States v. Williams

United States Court of Appeals, District of Columbia Circuit

September 2, 2016

United States of America, Appellee
Rico Rodrigus Williams, Appellant

          Argued December 10, 2015

         Appeals from the United States District Court for the District of Columbia (No. 1:09-cr-00026-1)

          A.J. Kramer, Federal Public Defender, argued the cause and filed the briefs for appellant. Jonathan S. Jeffress, Assistant Federal Public Defender, entered an appearance.

          Lauren R. Bates, Assistant U.S. Attorney, argued the cause for appellee. On the brief were Vincent H. Cohen, Jr., Acting U.S. Attorney, and Elizabeth Trosman and Stratton C. Strand, Assistant U.S. Attorneys.

          Before: Henderson, Griffith, and Kavanaugh, Circuit Judges.



         Army Sergeant Juwan Johnson died in July 2005 after participating in a violent hazing ritual near Ramstein Air Force Base in Germany. A jury convicted appellant Rico Williams of second-degree murder and witness tampering for his role in the hazing and in covering up information about Johnson's death. We affirm Williams's conviction for witness tampering, but we reverse his murder conviction.


         Rico Williams was stationed at Ramstein Air Force Base as an Airman in the United States Air Force starting around 2001. He was discharged for medical reasons in May 2005 but remained at Ramstein as a dependent of his wife, Octavia, who was also an Airman. Williams was the leader, or "governor, " of a group that went by various names: "BOS, " "Brothers of the Struggle, " or "Gangster Disciples." (For simplicity, this opinion will refer to the group as the BOS.) The BOS was made up of members of the U.S. Army and Air Force at Ramstein but was not affiliated with the military. Expert evidence at trial connected the BOS to the Gangster Disciples, an American gang with roots in Chicago and individual "sets, " or local groups, around the world. Although members of the BOS often got into fistfights, the government's witnesses testified at trial that they did not engage in any other criminal activity.

         The BOS did, however, regularly initiate new members by beating them up in a ritual known as a "jump-in." During a typical jump-in, approximately six members of the BOS hit the initiate for about six minutes. Blows were to be landed only between the neck and the waist, and the initiate was forbidden from defending himself in any way. During the jump-in, the initiates were asked repeatedly if they wanted to proceed. If they said no, the initiation ended. After a jump-in, the new member would be hugged, kissed on the cheek, shown the BOS handshake, and taken out to celebrate. The BOS had performed around fifteen to eighteen jump-ins before Johnson's; in none had a new member been hospitalized or killed.

         Johnson's jump-in took place on the night of July 3, 2005, at a brick-floored hut near the Ramstein base. Nicholas Sims, who was second in command to Williams in the BOS, testified for the government that nine people participated in Johnson's jump-in-more than the usual six. Sims recalled that Williams asked Johnson whether he wanted to begin. Johnson responded: "Hell yeah." Williams asked him again, and he again replied: "Hell yeah." Then Williams punched Johnson in the face. Johnson fell immediately, but stood again. Asked if he wanted to continue, he repeated: "Hell yeah." Williams again punched him in the face. The group then began hitting him below the neck and above the waist. After two or three minutes, the group stopped while Williams and Sims, as the top-ranking members of the BOS, continued to pummel Johnson for the next minute. The other members then joined in again on the beating.

         Another government witness, Themetrious Saraglou, similarly testified that Williams asked Johnson before the beating began if "he was sure he wanted this, " and that Johnson said: "Hell yes." Saraglou further testified that throughout the jump-in, when Johnson fell, he was asked: "Do you want this?" He "would reply and say, 'yeah, ' or 'hell yeah, ' or even 'f*** yeah.'" Saraglou testified that by about halfway through the beating, Johnson wasn't as "hyper" as he had been at the beginning; he began responding simply "yeah, " instead of "hell yeah." At some point, Johnson was held up as members continued to hit him repeatedly. At another point, members kicked Johnson while he was on the ground. No kicking had occurred at prior jump-ins. When the six minutes were up, the timekeeper had to yell "time" three times before the beating stopped. As a result, the jump-in lasted longer than usual.

         Johnson never lost consciousness during the jump-in and though his mouth was bleeding, Johnson showed no other visible sign of serious injury when it ended. According to Sims, Johnson was exhausted and walking "like a drunk person, but by himself." Saraglou testified that Johnson was walking slowly and said he was too sore to go out to celebrate with the others. Williams directed BOS members to take Johnson home and charged Florentino Charris with watching him overnight. Charris testified that around midnight, Johnson was slurring his speech and having trouble walking. Sometime later, Johnson asked to go to the hospital. Instead of taking him to the hospital, Charris relayed Johnson's request to another BOS member, who called Williams. Williams said not to take him. Charris followed Williams's direction, but told Johnson to let him know if he needed anything. Charris fell asleep in the room with Johnson. When he woke up in the morning, Johnson was dead.

         An autopsy revealed injuries to Johnson's brain and heart. These "blunt force injuries" inflicted during the initiation caused Johnson's death, according to the government's medical expert at trial. By contrast, the defense's medical expert opined that the underlying cause of death was sickle-cell trait, a typically asymptomatic genetic condition, and that "superficial blunt impact injuries" were merely a "contributing" cause.

         Two days following Johnson's death, Williams moved back to the United States. He was arrested in Virginia in February 2009 and charged with four counts in relation to Johnson's death, one of which the district court dismissed partway through trial. Of the remaining three, the first count was second-degree murder under the Military Extraterritorial Jurisdiction Act of 2000 (MEJA), which provides federal jurisdiction over crimes committed by a civilian accompanying the Armed Forces outside the United States. See 18 U.S.C. § 3261 et seq.

         The two other counts charged that Williams had tampered with witnesses in violation of 18 U.S.C. § 1512(b)(3). One alleged that Williams made a threat to Sims and three other BOS members at a cookout the day after Johnson died. According to Sims, Williams told them that if questioned by the authorities, they were to say that Johnson died because "Turkish people jumped" him. Williams also threatened that they would be "basically done for" if they told the truth about Johnson's death. Sims testified that he took this threat to mean Williams would kill anyone who told the truth. Trial Tr. 36-37 (Oct. 25, 2010). The other tampering count alleged that Williams called Saraglou from the United States later that month and told him to order Sims to cover up a tattoo that signaled gang membership.

         In November 2010, a jury found Williams guilty of second-degree murder and one count of witness tampering based on his threat to Sims (but not to any others). The jury acquitted Williams of the tampering count related to Sims's tattoo. In April 2012, Williams was sentenced to 22 years' imprisonment on the murder conviction and a concurrent 10 years' imprisonment for witness tampering. The court also ordered restitution of $756, 000.

         Williams moved for judgment of acquittal on the murder and witness-tampering counts. As for the murder count, he argued that the evidence was insufficient to establish that the requirements of MEJA were met or that he had the state of mind required for a murder conviction. The district court denied that motion. See United States v. Williams, 825 F.Supp.2d 117, 118-19 (D.D.C. 2011). Williams also moved for a new trial on the grounds that the government misstated the law during closing argument and that the district court made several incorrect evidentiary rulings. The district court denied these motions, too.

         On appeal, Williams contends that the evidence was insufficient to convict him of murder. He also argues that a prosecutorial misstatement of law during closing argument substantially prejudiced his trial. He further challenges three evidentiary rulings by the district court and various other alleged prosecutorial errors. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).


         We begin with Williams's challenges to the sufficiency of the government's evidence at trial.[1] He maintains that the prosecution failed to prove that he was "residing with" a member of the U.S. military and that he was not a "national of or ordinarily resident in" Germany at the time the offense occurred, as required to establish federal jurisdiction under MEJA. 18 U.S.C. § 3267(2). Further, he argues that the evidence was insufficient to find that he had the requisite state of mind for second-degree murder.

         Our review is highly deferential: we must accept the jury's verdict if "any rational trier of fact" could have found the elements of the crime beyond a reasonable doubt. United States v. Battle, 613 F.3d 258, 264 (D.C. Cir. 2010). We view the evidence in the light most favorable to the government, drawing no distinction between direct and circumstantial evidence, and "giving full play to the right of the jury to determine credibility, weigh the evidence and draw justifiable inferences of fact." Id. Examined through this deferential lens, Williams's sufficiency-of-the-evidence arguments fail.


         At trial, the government was required to prove beyond a reasonable doubt that Williams met the elements of MEJA, which provides for federal jurisdiction over crimes committed by civilians accompanying a member of the Armed Forces abroad. See 18 U.S.C. §§ 3261, 3267(2). A defendant meets the statutory criteria for "accompanying" a military member if, at the time the crime occurred, he was: (1) a dependent of a member of the Armed Forces; (2) "residing with" that member outside the United States; and (3) "not a national of or ordinarily resident in the host nation." Id. § 3267(2). Williams contends that the government failed to prove the second and third elements of MEJA.

         Although the question is close, the evidence was sufficient for a rational juror to find beyond a reasonable doubt that Williams was "residing with" his wife Octavia, a member of the Air Force, when the crime occurred on July 3, 2005. Three of the government's witnesses testified that Williams lived with Octavia. One of those witnesses, Charris, further testified that sometime after he joined the BOS in April or May 2005, he attended a meeting at Williams's house and saw Octavia there. However, no witness said that Williams lived with Octavia at the time of Johnson's death. Complicating matters, government witness Sims testified on cross examination that Williams was having marital problems in June 2005. Asked whether Williams was "moving around and staying with" other people during this interval, Sims responded that he was. Trial Tr. 29 (Oct. 26, 2010). He did not identify where exactly Williams was staying but said that Williams was "all over the place." Id. Williams left Germany and moved back to the United States on July 6, 2005.

         This evidence meets the low bar required to defeat a sufficiency-of-the-evidence challenge. As the district court reasoned, a rational juror could have determined that Charris joined the group as late as the end of May 2005 and, therefore, that the meeting at Williams's house where Octavia was present took place in June or early July 2005. A juror could rationally infer from this evidence that Williams resided with his wife on July 3, 2005. Moreover, the government's witnesses offered unqualified testimony that Williams lived with Octavia. A rational juror could infer that one of the witnesses would have qualified his testimony had Williams moved out before the jump-in. Cf. United States v. Lamy, 521 F.3d 1257, 1268 (10th Cir. 2008) (holding that a jury may rationally infer from testimony that a house "is" within Indian country that the house was "within reservation boundaries at all times within the knowledge of the[] witnesses"). Taken together, this evidence was sufficient to permit a rational juror to find beyond a reasonable doubt that Williams resided with his wife at the time of Johnson's death.

         Sims's statement that Williams was staying with other people in June 2005 may appear to cloud the picture. However, the jury was entitled to discredit that testimony. See United States v. Jenkins, 928 F.2d 1175, 1178 (D.C. Cir. 1991) ("Credibility determinations may rest on a witness's demeanor and, for that reason, are for the jury, not us."). And even those jurors who believed Sims could have inferred that Williams resided with Octavia at the time of Johnson's death. Because MEJA does not define "residing, " we give the term its ordinary meaning. See Alabama v. North Carolina, 560 U.S. 330, 340 (2010). To "reside" is "[t]o dwell permanently or for a considerable time" or "to have one's settled or usual home in or at a particular place." Oxford English Dictionary (2d ed. 1989) (emphasis omitted). A person can have more than one residence. See United States v. Venturella, 391 F.3d 120, 125 (2d Cir. 2004); Eastman v. Univ. of Mich., 30 F.3d 670, 673 (6th Cir. 1994). Thus, even jurors who credited Sims's testimony that Williams was "staying" with other people in June 2005 could have determined that Williams still "resided" with his wife-either because he resided with her but was temporarily staying elsewhere, or because he resided in multiple places. Where the evidence can support "varying interpretations, at least one of which is consistent with" the jury's verdict, we must defer to that verdict. United States v. Ayewoh, 627 F.3d 914, 919 (1st Cir. 2010) (emphasis omitted).

         We similarly reject Williams's argument that the evidence was insufficient to prove that he was not a "national of" or "ordinarily resident in" Germany at the time of Johnson's death. 18 U.S.C. § 3267(2)(C). As proof of nationality, the government introduced a questionnaire that Williams completed as part of a 1996 application for a national-security position. Williams checked the box indicating that he was a U.S. citizen or national by birth. He wrote "NA" in the section of the questionnaire that inquired about dual citizenship. Williams contends that the government's evidence establishes only that he was not a German national in 1996. It says nothing about whether he was a "national of" Germany on the date of Johnson's death in 2005.

         The evidence of Williams's nationality is indeed dated. But as explained in a leading treatise on the law of evidence, "[w]hen the existence of an object, condition, quality, or tendency at a given time is in issue, " its "prior existence" can indicate that it "persist[ed] or continu[ed] at a later period." United States v. Stuart-Caballero, 686 F.2d 890, 893 (11th Cir. 1982) (per curiam) (quoting 2 Wigmore, Evidence § 437(1) (Chadbourn rev. 1979)). The likelihood that a condition persists

depends on the chances of intervening circumstances having occurred to bring the existence to an end. The possibility of such circumstances will depend almost entirely on the nature of the specific thing whose existence is in issue and the particular circumstances affecting it in the case in hand. That a soap bubble was in existence half an hour ago affords no inference at all that it is in existence now; that Mt. Everest was in existence ten years ago is strong evidence that it exists yet[.]

Id. In our view, nationality falls closer to the Mount Everest end of the spectrum. An individual's nationality, while not immutable, does not ordinarily change over the course of a nine-year period.[2] Thus, knowing that Williams was not a German national in 1996, a juror could rationally infer that he was not one in 2005.

         The evidence was also sufficient to prove that Williams was not "ordinarily resident in" Germany. Again giving this undefined term its ordinary meaning, we note that "ordinarily" means "usually." Oxford English Dictionary (2d ed. 1989). MEJA thus envisions that a person "accompanying the Armed Forces" in a host country resides in that country as a military dependent, but is not usually resident there. In other words, he lives there because of his connection to the military rather than because of other significant "local ties." Daneshpayeh v. Dep't of Air Force, 17 F.3d 1444, at *2 (Fed. Cir. 1994) (unpublished) (approving an agency finding that a civilian Air Force employee was "ordinarily resident in" Turkey because he had "profound local ties" there). This interpretation also accords with Congress's intent in enacting MEJA, which was to permit the United States to try crimes committed by civilians connected to the military while simultaneously "recogniz[ing] that the host nation has the predominant interest in exercising criminal jurisdiction over its citizens and other persons who make that country their home." H.R. Rep. 106-778, pt. 1, at 21 (2000).

         We further observe that before the passage of MEJA, the term "ordinarily resident" was used in Status of Forces agreements-treaties governing the duties and privileges of countries that station armed forces overseas. The military has interpreted the term in various publications. While the government does not ask us to defer to any of the military's definitions, see United States v. Apel, 134 S.Ct. 1144, 1151 (2014) ("[W]e have never held that the Government's reading of a criminal statute is entitled to any deference."), they confirm our interpretation that an individual must have at least some significant ties to the host nation, outside of his connection to the military, to qualify as "ordinarily resident."[3]

         The government introduced evidence that Williams was stationed at Ramstein because of his military service from 2001 until he was discharged in May 2005. A rational jury could have readily inferred from this evidence that Williams was not "ordinarily resident in" Germany during this period. Cf. Collins v. Weinberger, 707 F.2d 1518, 1519 & n.7 (D.C. Cir. 1983) (explaining that the Status of Forces agreement for the North Atlantic Treaty Organization distinguishes military personnel-and accompanying civilian employees-stationed in a foreign nation from locals who are "ordinarily resident" there). A rational juror could also infer that Williams did not become an ordinary, or usual, resident of Germany in the interval between his discharge and Johnson's death. For starters, this period was short, lasting no longer than two months. Further, evidence showed that Williams's home was on base rather than in a private dwelling, and that he was married to an American servicemember rather than to a German national or ordinary resident. Evidence also revealed that Williams left Germany for the United States two days after Johnson's death, on July 6, 2005, and never returned. See Daneshpayeh, 17 F.3d 1444, at *2 (employee who was "ordinarily resident" in Turkey lived there for almost 20 years, was married to a Turkish woman, and lived in an apartment building she owned). A jury could have rationally inferred from this evidence that Williams did not have significant local ties at the time of Johnson's death but rather lived there because of his connection to the military.

         Before leaving our discussion of MEJA, however, we observe that the government could have taken straightforward steps to "avoid the need for judicial consideration of what should be a non-problem." United States v. Hall, 613 F.3d 249, 253 (D.C. Cir. 2010). With respect to Williams's residency with his wife, for example, the government could have asked its witnesses where Williams lived at the time of Johnson's death or introduced evidence of where Williams kept belongings or received mail. See United States v. Morris, 977 F.2d 617, 620 (D.C. Cir. 1992) (concluding that evidence that a defendant kept his possessions in an apartment could "support a reasonable inference that [he] lived [there]"). As we have in other close cases, we note that "[t]he sufficiency of evidence is always situational, " and that the government "should not find out the hard way what change in circumstances would be sufficient to render its inadequate performance on this issue fatal to a conviction." Hall, 613 F.3d at 253.


         Williams next argues that the evidence was insufficient for a rational juror to find beyond a reasonable doubt that he acted with the mental state required for murder. We reject this contention.[4]

         Whether a defendant is convicted of second-degree murder, as opposed to involuntary manslaughter, depends on the presence of malice aforethought. Compare 18 U.S.C. § 1111(a) (murder), with id. § 1112(a) (manslaughter). Malice can be proven by showing that a defendant intended to kill or, as the government argued here, that he consciously disregarded an extreme risk of death or serious bodily injury. Williams contends that the government did not prove that his actions met the heightened standard of recklessness required for a murder conviction. He points to testimony that Johnson repeatedly said he wanted the jump-in to continue and did not appear seriously injured when it ended. Williams also argues that the evidence showed he told other BOS members to take Johnson to the hospital if necessary.

         But the government presented ample evidence from which a rational juror could infer that Williams consciously disregarded an extreme risk of death or serious injury to Johnson. For example, testimony at trial suggested that Williams had a signature move called the "one-hitter quitter, " which knocked people out with one punch, and that he once refused to initiate the group's female member via jump-in because it "would kill her." Testimony also suggested that Johnson's jump-in was more dangerous than prior hazings. Not only did it last longer and involve more people than usual, but Saraglou testified that Johnson was held up at one point while group members repeatedly punched him without asking if he wanted to continue the jump-in. And Sims stated that at another point, Johnson curled up in a ball while he was kicked. According to Charris's testimony, moreover, after the jump-in Williams told another BOS member over the phone not to take Johnson to the hospital. A rational juror could infer from this evidence that Williams was aware of his own strength, understood that jump-ins could lead to serious injury or death, and knew that Johnson's jump-in presented a more extreme risk than most initiations. From this evidence, the jury was entitled to find that Williams behaved with conscious disregard of an extreme risk to human life. See United States v. Foster, 557 F.3d 650, 655 (D.C. Cir. 2009) (explaining that in a sufficiency-of-the-evidence challenge, the court must give "full play to the right of the jury to determine credibility, weigh the evidence and draw justifiable inferences of fact").


         Williams next argues that a prosecutorial misstatement of law during closing argument substantially prejudiced the outcome of his trial. We agree that the government misstated the law in its closing argument. Because the misstatement implicated a central issue-the state of mind with which Williams acted-and was not sufficiently cured, it requires reversal of Williams's murder conviction.


         Before trial, the parties agreed on a jury instruction explaining that Johnson's willing participation in the jump-in did not excuse or justify Williams's conduct. The instruction read, in relevant part: "The defense of consent is not available for homicide or involuntary manslaughter, and therefore should not be considered." Proposed Jury Instructions 46, No. 1:09-cr-00026 (D.D.C. Oct. 19, 2010). After trial began, however, Williams asked the district court to add language to that instruction to clarify that the jury could consider Johnson's consent to the jump-in "in determining whether the defendant had the necessary malice aforethought to establish the crime of second-degree murder." Trial Tr. 57 (Nov. 5, 2010). He argued that the particular circumstances of the case required a more detailed instruction to clarify that the jury could consider Johnson's willing participation in the initiation when assessing whether Williams consciously disregarded an extreme risk to human life. The district court denied this request because, in the court's view, it was inaccurate to suggest that Johnson's acquiescence could bear on Williams's state of mind.

         In closing argument, defense counsel emphasized that Johnson was excited about participation in the initiation and that every time he was asked if he wanted to continue with the beating, he said yes. Counsel went on to say:

[T]he Judge is going to tell you that consent is not a defense, and we understand that, but it has to factor in . . . to whether [] Williams . . . intended to kill [or] seriously injure [] Johnson, and had a reckless disregard for his life or serious injury. When [a] person . . . is saying, yes, yes, yes, that's got to affect something-it may not be a legal defense, but it's got to affect the state of mind of the person who supposedly murdered him.

         Trial Tr. 32 (Nov. 8, 2010). In its rebuttal, the government responded that defense counsel had inaccurately stated the law:

[Defense counsel] gave you some incorrect law because the judge is the one-he's the final-he is the expert on the law, the judge. And you can't take-Sergeant Johnson went in there thinking that he was going to become a member of a brotherhood. He did not go in there willingly to get killed because consent is never ever a defense to murder. It is no defense to second degree murder or involuntary manslaughter, and you know what, the judge is going to tell you-[defense counsel] told you to consider it; don't even consider it because you can't consider it. It is not a defense . . . . You can't even consider it in his intent or anything else. You just cannot.

Id. at 100-01 (emphasis added). After the rebuttal concluded, defense counsel objected and asked the district court to give a "curative" instruction. The proposed language would have read:

During yesterday's rebuttal argument, you heard [the government] tell you that you could not consider Juwan Johnson's consent to the initiation ceremony when determining whether the government has proven beyond a reasonable doubt Mr. Williams's intent to commit the offenses of second degree murder or involuntary manslaughter. As I will instruct you momentarily, consent is not a defense to these charges. However, under the law, you may consider Juwan Johnson's consent to the initiation, among all the other evidence I have admitted, in determining whether the government has proven Mr. Williams' intent to commit the crimes of second degree murder or involuntary manslaughter beyond a reasonable doubt.

         Mr. Rico Williams' Objection to Gov't's Improper Closing Arg. & Mot. for Curative Instruction 4-5, No. 1:09-cr-00026 (D.D.C. Nov. 9, 2010).

         The district court refused to read this proposed "curative" language to the jury, concluding again that it was inaccurate to suggest that the victim's acquiescence had any impact on the defendant's state of mind. However, the district court modified the first sentence of the consent instruction to read simply: "Consent is not a defense to second degree murder or involuntary manslaughter"-excising the language "and therefore should not be considered." Trial Tr. 16-17, 46 (Nov. 9, 2010). The district court also offered to give the jury an additional instruction on proof of state of mind. It pointed to a standard criminal jury instruction that explains that someone's state of mind "ordinarily cannot be proved directly, " but may be inferred from the defendant's conduct and other "surrounding circumstances" that the jury finds relevant. Instruction No. 3.101 of the Criminal Jury Instructions for the District of Columbia (2014). The district court acknowledged, however, that this additional instruction would not satisfy the defense's request for a curative instruction. The defense declined it, and the district court did not read it to the jury.

         Williams argues that the government's misstatement of law substantially prejudiced him. He agrees that consent is not an affirmative defense to homicide, but insists that Johnson's consenting behavior-that is, his "continued, and enthusiastic, statements that he wanted the initiation to continue"- suggested that Williams was not conscious of an extreme risk that Johnson might die or be seriously injured. Appellant's Br. 63-65. According to Williams, the government's rebuttal argument that consent cannot be considered "in [Williams's] intent or anything else"-coupled with the district court's instruction that "consent is not a defense"-prevented the jury from considering crucial context when determining whether Williams acted with malice aforethought.


         Williams asserts that the government's closing argument improperly led the jury to believe that it could not consider crucial evidence of Williams's state of mind, and that the jury instructions "supported" this misperception. Appellant's Br. 65. In other words, he alleges that improper prosecutorial argument prejudiced his trial. When reviewing such challenges, we first examine whether the government's statement was indeed error, keeping in mind that it need not have been deliberate or made in bad faith to be erroneous. See United States v. Watson, 171 F.3d 695, 700 (D.C. Cir. 1999). If the remark was error, we evaluate whether the error substantially prejudiced the defendant and therefore requires reversal. United States v. Straker, 800 F.3d 570, 628 (D.C. Cir. ...

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