Darius Brown and Jamal Shepherd v. United States

Citations: 89 A.3d 98; 2014 WL 1491763; 2014 D.C. App. LEXIS 102Docket: 11-CF-1503 & 11-CF-1507

Court: District of Columbia Court of Appeals; April 17, 2014; District Of Columbia; State Supreme Court

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The opinion relates to the appeals of Darius Brown and Jamal Shepherd following their convictions for various offenses stemming from a shooting incident. The convictions arose after a jury trial where Shepherd was found guilty of obstruction of justice and carrying a pistol without a license, while Brown faced convictions for perjury, conspiracy to obstruct justice, and two counts of obstruction of justice. The court, led by Associate Judge Fisher, upheld these convictions against claims of insufficient evidence from both appellants.

The incident occurred on February 9, 2010, when Jamal Brooks, accompanied by Shepherd and Brown, confronted Raymond Washington. Brooks, armed with a revolver, escalated the argument, leading Shepherd to seize the weapon and shoot Washington, severely injuring him but leaving him alive. Shepherd's additional convictions included assault with intent to kill, mayhem, assault with a dangerous weapon, and multiple firearms offenses.

During the subsequent police investigation, initial focus was on Brooks, who acknowledged that Brown had witnessed the shooting but did not reveal the shooter's identity. Brown, upon being interviewed by detectives and later testifying before a grand jury, provided a physical description of the shooter but claimed ignorance of his name, despite indicating he had met him before. This lack of cooperation contributed to the obstruction charges against Brown. The court affirmed all convictions after rejecting the appellants' claims.

Brooks cooperated with investigators, revealing that Shepherd was the shooter, despite Brown's false claims of not knowing Shepherd. Brown and Shepherd were indicted for their roles in the shooting and subsequent cover-up. During their trial in August 2011, appeals were raised regarding insufficient evidence. 

Brown contested his perjury conviction, arguing that his grand jury statements could be interpreted as not knowing Shepherd's name at the time of the shooting rather than during his testimony. He claimed the government did not prove his testimony was literally false and referenced the "two-witness" rule for perjury, which he believed had not been satisfied. However, the court found sufficient evidence to uphold his conviction. 

The government focused on the materiality of Brown's statement about the shooter, which was clearly relevant to the inquiry. Although the government abandoned a secondary perjury theory, a recorded phone call where Brown admitted to committing perjury bolstered the case against him, despite not being sufficient on its own for a conviction. Additionally, the "two-witness" rule was clarified as requiring corroborative evidence rather than a strict two-witness requirement.

Evidence included testimony from a detective regarding extensive phone records showing approximately 1,500 calls between Brown and Shepherd, suggesting their prior acquaintance. Recorded jail conversations further demonstrated their longstanding familiarity, with Brown explicitly stating, "I know this nigga. I deal with this nigga." Brooks also confirmed he had known Shepherd for about ten years.

Brooks testified that Brown had been "like family" to him throughout his life, indicating that Brown likely knew Shepherd on the night of the shooting. Although it is theoretically possible that Brown's relationship with Shepherd developed only after the incident, the government presented substantial circumstantial evidence, including phone records and Brown's recorded admissions, to meet the evidentiary standard required in perjury cases. Brown's false statements during grand jury testimony supported his conviction for obstruction of justice under D.C. Code 22-722 (a)(6). The evidence demonstrated that Brown acted with specific intent to obstruct justice, including a recorded call where he confessed to lying under oath. Additionally, statements made during a taped interview with detectives mirrored his grand jury testimony, which was proven false. Brown argued that his misleading statements to detectives could not constitute obstruction since they were not made during an official proceeding; however, the court held that such statements could still obstruct justice in the context of a pending criminal prosecution. Thus, the evidence was sufficient to uphold Brown’s convictions for perjury and obstruction of justice.

Brown contests the evidence supporting his conviction for conspiracy to obstruct justice, arguing that the government did not demonstrate his specific intent to influence Brooks’ testimony. However, recorded phone calls presented at trial reveal Brown's strong disapproval of Brooks’ truthful statements to the police. In one call, Brown expressed frustration over Brooks' honesty and indicated a desire to confront him about being a witness. This establishes a clear understanding between Brown and Shepherd regarding their intent to prevent Brooks from cooperating with authorities, demonstrating Brown's specific intent to obstruct justice.

Shepherd's conviction for obstruction of justice is grounded in a phone call where he instructed Brooks to “keep the code,” understood by Brooks as a reference to the “code of not snitching.” At the time, Shepherd was aware that Brooks was in jail facing charges related to the shooting. Shepherd argues that his advice was not given corruptly or through threats; however, Brooks’ testimony indicated that his reluctance to implicate Shepherd was rooted in fear of repercussions for being a “snitch.” This undermines Shepherd's claim that his instruction was based solely on friendship. Even if Shepherd did not threaten Brooks, simply encouraging silence still constitutes obstruction under D.C. Code 22-722 (a)(6), which recognizes obstruction through either corrupt means or threats of force.

Individuals can be found guilty of acting "corruptly" under federal obstruction of justice statutes without making threats, as established by the Supreme Court in Arthur Anderson LLP v. United States, which equates "corruptly" with "wrongdoing." Lower courts further clarify that "corruptly" implies acting with an improper purpose, as seen in United States v. Shotts and United States v. Thompson. In Riley v. United States, the court determined that instructing a witness to remain silent can constitute obstruction of justice, reinforcing that non-threatening requests for silence are included under D.C. Code 22-722.

Shepherd contests his conviction for carrying a pistol without a license (CPWL) under D.C. Code 22-4504(a), acknowledging that he fired a pistol he took from Brooks but arguing the government did not prove he carried it before or after firing. However, precedent defines "carry" as including "actual possession," meaning he had direct physical control of the gun when he fired it, thus supporting his conviction.

Additionally, Shepherd appeals the denial of his motion to suppress identifications made from a photo array by witnesses. He claims the array was unduly suggestive due to differences in appearance among the individuals pictured. The trial court, however, found the array not unduly suggestive, a conclusion upheld by the reviewing court, particularly noting the strength of Brooks' identification given their long-standing acquaintance.

Shepherd appeals the trial court's refusal to exclude two graphic photographs of Washington taken post-shooting, arguing they were excessively prejudicial and intended to inflame the jury. However, the severity of Washington's injury was relevant to the charges of mayhem while armed and assault with intent to kill while armed. Reversal requires a demonstration of the trial court's abuse of discretion, which was not found here, as the photographs corroborated other evidence regarding the injury's severity. The court noted that the government is not obligated to sanitize its evidence, referencing Dixon v. United States. This situation is comparable to Riley v. United States, where the court allowed the victim to reveal his eye injury to prove a permanent disabling injury necessary for the mayhem charge. 

Additionally, an issue arose regarding a misstatement by the prosecutor during closing arguments, where he claimed there were "thousands of hours" of phone calls between Shepherd and Brown, while the actual number was approximately 1,500 calls. Defense counsel did not object to this statement, so any reversal would require a plain error standard. Under this standard, the inappropriate comments did not undermine the trial's fundamental fairness or contribute to a miscarriage of justice, especially given the overwhelming evidence against Brown. Consequently, the judgments of the Superior Court are affirmed.