Hagans v. United States

96 A.3d 1

Harrell E. HAGANS, Brion X. Arrington, Warren N. Allen, and Gary A. Leaks, Appellants,

v.UNITED STATES, Appellee.

Nos. 04–CF–253, 10–CO–386, 04–CF–483, 10–CO–385, 11–CF–1130, 11–CF–1131, 04–CF–287, 10–CO–396, 04–CF–297, 10–CO–395.

District of Columbia Court of Appeals.

Argued June 13, 2012.

Decided June 5, 2014.

Veronice A. Holt, Washington, DC, for appellant Harrell E. Hagans.

Lisa H. Schertler, with whom David Schertler, Washington, DC, was on the brief, for appellant Brion X. Arrington.

Matthew D. Krueger, with whom Jeffrey T. Green and Matthew J. Warren, Washington, DC, were on the brief, for appellant Warren N. Allen.

Matthew M. Hoffman, with whom Barbara E. Rutkowski and Nicholas J. Kim, Washington, DC, were on the brief, for appellant Gary A. Leaks.

Nicholas P. Coleman, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, Roy W. McLeese III, Assistant United States Attorney at the time the brief was filed, and Michael D. Brittin and Seth P. Waxman, Assistant United States Attorneys, were on the brief, for appellee.

Before WASHINGTON, Chief Judge, GLICKMAN, Associate Judge, and REID, Senior Judge.

GLICKMAN, Associate Judge:

On April 25, 2001, appellants Harrell Hagans, Brion Arrington, Warren Allen, and Gary Leaks were indicted for conspiring to assault and kill members, associates, and friends of a criminal enterprise known as the “Mahdi Brothers organization,” and for committing first-degree murder while armed and related crimes in furtherance of that conspiracy. All four appellants were charged with the May 17, 2000, murder of Eva Hernandez. Appellants Arrington and Hagans were charged in addition with the February 29, 2000, murder of Danny Webb.

While appellants were awaiting trial, several other indictments were returned against Arrington. Two of them charged him with assault with intent to kill while armed (“AWIKWA”) and related weapons offenses in connection with the shootings of Antonio Tabron on January 24, 1999, and Robert Nelson on January 30, 2000. On the government's motion, these two AWIKWA indictments against Arrington were joined for trial with appellants' earlier indictment. Appellants' joint trial commenced on September 23, 2003, and continued for ten weeks. On December 3, 2003, the jury rendered its verdict, finding appellants guilty on all counts as charged.

The trial court proceedings in this case were lengthy and complex, and appellants challenge their convictions on numerous grounds. We find that some of their claims are not without merit. Indeed, the government now concedes one error of constitutional magnitude, involving its introduction of testimonial hearsay in violation of appellants' Sixth Amendment rights of confrontation. Nonetheless, we conclude that the errors were few in number and not consequential enough to warrant reversal of appellants' convictions.

I. The Evidence at Trial

According to the government's evidence at trial, appellants were members of the so-called Delafield gang, a group of men who, among other things, sold marijuana in the area around Delafield Place in Northwest Washington, D.C. A number of witnesses testified about the Delafield gang and its activities. Five former members of the gang, cooperating with the prosecution in accordance with plea agreements, were among the key witnesses against appellants. In 1999 and 2000, the period encompassed by the indictments, appellants Arrington and Hagans, along with cooperating witness Kevin Evans, were the putative leaders of the Delafield gang, while appellants Allen and Leaks and cooperating witnesses Charles Payne, Marquet McCoy, Sean Gardner, and Jason Smith were lower-ranking members. Gardner stored and maintained many of the gang's assault weapons and other firearms, while Jason Smith specialized in stealing cars for gang members' temporary use.

The shootings at issue in this case were allegedly committed in the course of a violent feud between the Delafield gang and a rival drug gang led by five brothers—Abdur, Nadir, Rahammad, Malik, and Musa Mahdi—who lived in the 1300 block of Randolph Street in Northwest Washington, D.C. A number of former members and associates of the Mahdi brothers' organization testified about the shootings pursuant to cooperation plea agreements. (None of the Mahdi brothers themselves appeared as a witness at appellants' trial. However, as we shall discuss, the jury heard redacted versions of factual proffers to which four of the brothers had assented when they pleaded guilty to federal charges.) It was unclear how the feud began—it may have started with the shooting some time prior to 1996 of a Delafield gang member named Steve St. John—but it began to escalate in 1999 with the shooting of a Mahdi gang member named Antonio Tabron.

A. The Shooting of Antonio Tabron on January 24, 1999, and its Aftermath

The principal testimony about this shooting was provided by Delafield cooperatorKevin Evans. On the evening of January 24, 1999, according to Evans, Arrington informed him that Antonio Tabron was parked in front of Arrington's house near an alley in the 300 block of Decatur Street. The two men proceeded to the alley, where they encountered Steve St. John, whom Tabron supposedly had shot in 1996. Arrington handed his 9–millimeter Ruger handgun to St. John so he could retaliate. Shaking, St. John said he could not do it. Arrington took back his gun, fired a number of shots at Tabron's car, and continued to shoot as he backed into the alley and disappeared from Evans's sight. Tabron's car swerved onto the sidewalk and stopped in a front yard on Decatur Street. Police called to the scene found Tabron, who was wounded in the leg, hiding behind a house there.

As various witnesses, including cooperating Mahdi and Delafield gang members, testified, the shooting of Tabron initiated a series of retaliatory actions. On the night following the shooting, Tabron's brother Antoine drove to the Delafield neighborhood with Musa and Nadir Mahdi and others. They shot at a group of men near the corner of Delafield Place and Fourth Street but did not hit anyone. Evans testified that he witnessed this shooting from his apartment window with Arrington and Hagans. According to Evans, Arrington identified the shooters as Mahdi gang members and said the Delafield gang needed “to get some guns and put a stop[ ] to it.”

A month later, on February 28, 1999, masked gunmen attacked and shot Delafield gang member William Ray on the street shortly after he left a meeting with Arrington, Hagans, Evans, and Charles Payne to go sell marijuana.¹ The shooting left Ray paralyzed. The Delafield gang attributed the shooting to the Mahdis; Ray told Evans he believed it was in retaliation for the shooting of Tabron. A few days after that, in early March, Antoine Tabron and Nadir Mahdi attempted to shoot Payne after following him home from a nightclub.² Payne escaped without injury because their guns jammed. Sometime after this, according to Payne and Evans, another Mahdi gang member shot at them while they were in Evans's car.

B. The Shooting of Robert Nelson on January 30, 2000

The primary witness to the next charged shooting was Evans. Early on the morning of January 30, 2000, as he and Arrington left The Palace nightclub and walked to their cars, a white car pulled up and a man got out. Evans saw Arrington reach into the trunk of his car, pull out a .45–caliber gun, and begin shooting at the man, who fell to the ground. Shots then rang out from other quarters, and Arrington stopped shooting, closed the trunk of his car, and fled on foot.³ Arrington told Evans the next day that he was shooting at Robert Nelson, a Mahdi gang member whom Evans had not recognized. Nelson sustained bullet wounds in his hip, groin, and leg, but he survived.

C. The Murder of Danny Webb on February 29, 2000

Evans and Payne testified that on the morning of February 29, 2000, Payne, at Arrington's instruction, drove Arrington, Hagans and Evans into Mahdi territory. As they came to the corner of Thirteenth and Taylor Streets, Hagans noticed Danny Webb, a Mahdi gang member, and pointed him out to the others. Arrington declared they should “light him up.” Payne pleaded with them not to hurt Webb, who was his friend, but Arrington and Hagans ordered him to pull up to Webb and stop the car, which he did. While Payne remained seated, Arrington, Hagans and Evans exited the vehicle. The three men shot at Webb, chasing him into an alley before eventually returning to their car and driving off. A neighbor saw Webb flee down the alley and collapse at his front porch. Webb suffered nine gunshot wounds and died later that day.⁴

D. Further Shootings in the Wake of Webb's Murder

The murder of Webb was followed in the next several weeks by a number of shooting incidents involving Delafield and Mahdi gang members.⁵ Not long after Webb's funeral, three of the Mahdi brothers drove with other members of their gang to the Delafield neighborhood and surprised a group that included three of the appellants—Arrington, Hagans, and Allen—as well as Evans, Payne, and Marquet McCoy. There was a brief exchange of gunfire, in which no one was injured. Next, on March 12, 2000, Hagans and Arrington, accompanied by Evans, fired on a car in which they thought Mahdi gang members were riding. One of the vehicle's occupants, who was not a member of the Mahdi organization, was injured.

Two months later, on May 10, 2000, Jason Smith drove Hagans and Arrington in a stolen car to the 3900 block of Fourteenth Street, where the three men fired shots at suspected Mahdi gang members, apparently including Rahammad Mahdi. In revenge, Abdur and Nadir Mahdi returned to Delafield territory that night and shot at Payne and McCoy, wounding the latter. According to Payne, members of the Delafield gang, including all of the appellants here, discussed the need to retaliate against the Mahdis. Approximately four days later, Arrington and...