
    UNITED STATES of America v. Jamal A. ADAMS, a/k/a Ishmael Heru-Bey, Defendant.
    Criminal Action No. 15-44 (JEB)
    United States District Court, District of Columbia.
    Filed 12/15/2015
    
      Erin Pulice, Jeffrey A. McLellan, U.S. Department of Justice, Washington, DC, for United States of America.
    Kenneth É. McPherson, Kenneth ‘ E. McPherson, Chtd., Riverdale, MD, for Defendant.
   MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge • ;

Defendant Ishmael Heru-Bey, formerly known as Jamal Adams, was named in a superseding indictment charging him with one count of corruptly éndeavoring to obstruct and-impede the ■ internal-revenue laws1-and two counts of attempting to evade or defeat taxes. A jury ultimately convicted him of the first and acquitted him of the latter two. He now moves for a new trial on the ground that the Court improperly responded to a jury note during deliberations. More specifically, Heru-Bey contends that the Court should have instructed the jury that it must unanimously agree on at least one of the specific means by which he acted to - obstruct or impede the laws. Because Defendant did not initially seek such a unanimity instruction and because one would not have been legally correct, the Court will deny his Motion.

I, Background

The count at issue here is the first in the superseding indictment, which is labeled “Corrupt Endeavor to Obstruct and Impede the Internal Revenue Laws,” in violation of 26 U.S.C. § 7212(a). See ECF No. 17 at 1, 2-3. (Because Heru-Bey legally changed his name from Jamal'Adams only after many of the charged actions had occurred, the indictment refers to him as Adams. Given that his name is actually Heru-Bey, that is what the Court will call him.) Count I alleges that, from 2005-15, Defendant, then an officer with the Metropolitan Police Department, “did corruptly obstruct and impede, and endeavor to obstruct and impede, the due administration of the internal revenue laws by various means, including, but not limited to ...” submitting false W-4 forms to his employer in four separate years, filing false documents in the U.S. Bankruptcy Court, and filing U.S. Individual Tax Returns in two years that falsely claimed unreimbursed employee expenses. See id. at 2-3. Counts II and III, furthermore, charged Heru-Bey with attempting to evade or defeat taxes in two different years. See id. at 4-5.

The case eventually proceeded to trial on October 5, 2015. At the close of the evidence on October 8, the Court, having previously handed out to the parties a draft of the jury instructions, held a charging conference and permitted both sides to raise objections and propose changes. The instruction ultimately given for Count I read as follows:

The defendant is charged with Corruptly Endeavoring to Obstruct and Impede the Internal Revenue Laws by various means, including (1) submitting false Forms W-4 to the Metropolitan Police Department on or about February 1, 2006, February 3, 2008, January 1, 2009, and March 11, 2010, in which he falsely claimed he was exempt from federal income tax withholding; (2) filing documents with the United States Bankruptcy Court for the District of Columbia on or about June 10, 2010, in which he failed to report his income tax debts due and owing the United States and the fact that thé IRS was a creditor; and (3) filing false U.S. Individual Income Tax Returns, Forms 1040, with the Internal Revenue Service for the years 2011 and 2014, in which he falsely claimed that he incurred unreimbursed employee expenses.
The elements pf this count, each of which the government must prove beyond á reasonable doubt, are that:
1. Mr. Heru-Bey endeavored to obstruct or impede the due administration of the internal revenue .laws. To “endeavor” means to act knowingly and intentionally — that is, not by mistake or accident. “The due administration of the internal revenue laws” means the Internal Revenue Service’s efforts to fulfill its lawful functions, which includes determining the1 defendant’s income and calculating, assessing, and .collecting taxes on that income;
2: The defendant’s actions — even if not successful — had a reasonable tendency to obstruct or impede the due administration of the internal revenue laws; and
3. The defendant acted corruptly — that is, with the purpose of obtaining an unlawful benefit for himself or someone else. The specific actions taken by the defendant need not be illegal, but they must have been done with the purpose of securing an unlawful benefit.
The government does not have to prove that the defendant’s actions achieved their desired result or had an adverse effect on the Internal Revenue Service.

EOF No. 37 (Final Jury Instructions) at 7-8. At no point in the conference did Defendant ask for a -unanimity instruction. That is, he never Requested that the Court instruct the jury that all jurors must agree on which specific means (or act) specified in the first paragraph of the instruction was taken to obstruct or impede .the laws. The Court: thus gave the jury the above instruction on the morning of October 9.

On that same afternoon at 2:08 p.m., the jury sent a written note to the Court, which stated:

Question on count 1[:]
The opening paragraph includes 3 “means” by which the defendant corruptly endeavored to obstruct and impede the Internal-Revenue Laws, namely A) false W-4s[,] B) false documents to bankruptcy court, and C) false tax returns.
Our question is, do we need to find that all of A, B, and C each meet each of the 3 elements of the count to find him guilty? That is, if we-find the defendant guilty of A, but not guilty of B and not guilty of C, must we find the defendant not guilty of- count 1? Or do we find him guilty of count 1 because we found him guilty of A?

ECF No. 34 (Jury Notes) at 2 (emphasis original).

The Court summoned the parties to the courtroom to give them the note and to discuss a response. It first pointed out that the “government doesn’t need to prove that he has committed all of the offenses here.” Appendix to Opinion (Trial Transcript) at 1:20-21. Although the defense agreed with that premise, it argued- that the jury nonetheless needed to be unanimous on which of the means was used. See id. at 2:6-7, 12-13. The Court then asked the Government about its position on giving such a response to the note. See id. at 2:20-3:3.. The Government rejoined that there was a case 'that stood for the contrary position, which the Court identified as coming from the 10th Circuit. See id. at 3:4-9. (The Court initially called the case “Williams,” but soon thereafter clarified that the case was Sorensen, which is discussed below. See id. at 5:23-6:7.) The Court then asked the Government how it wished to proceed, given that it might still tactically prefer the unanimity instruction for appellate purposes. See id. at 3:14-25. The Government indicated that it did not wish such instruction, see id. at 4:3-4, and the Court agreed that the law supported its position. See id. at 5:5-12. It thus -responded -to the note in this fashion: “The government must prove beyond a reasonable doubt all three elements of Count I. But the government need not prove all three of the means listed.” Id. at 7:6-8. While the Court did not give a unanimity instruction, it also did not specifically tell the jurors that they could convict Heru-Bey even if they did not all agree on which means was employed.

The jury did not ■ reach- a verdict on October 9 and -returned to its deliberations on October 13 after the Columbus Day holiday weekend. It then issued its verdict that afternoon, convicting Heru-Bey of Count I but acquitting him of Counts II and III. With-sentencing set for January 2016, he now moves for a new trial.

II. Legal Standard

Federal Rule of Criminal Procedure 33(a) provides: “Upon the defendant’s motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.” According to our Court of Appeals, “Trial courts enjoy broad discretion in ruling on a motion for a néw trial.” United States v. Wheeler, 753 F.3d 200, 208 (D.C.Cir.2014) (citation omitted). This is true in part because “[t]he rules’do not define ‘interests of justice’ and courts have had little success in trying to generalize its meaning.” Id, (citation and internal quotation marks omitted). At bottom, the D.C. Circuit -counsels that “granting a new trial motion is warranted only in those limited circumstances where a serious miscarriage of justice may have occurred.” Id. (citation and internal quotation marks omitted). This Court nonetheless believes that a clearly erroneous and prejudicial jury instruction could well necessitate a new trial. See United States v. Vicaria, 12 F.3d 195, 198-99 (11th Cir. 1994) (holding that district court- did not abuse its discretion in granting new trial after concluding that it- had erroneously omitted particular jury instruction). ■

III. Analysis

' In séekíng a flew trial, Heru-Bey contends that the Court erred by failing to give a unanimity instruction in connection with Count I. Although he concedes that he did not object to the instructions before they were delivered, see Mot, at 2, he asserts that he should have been given a second bite at the apple.once the jury had submitted its note. See id. at 4-5. The Government retorts that waiver precludes his argument here and that, alternatively, the Court correctly decided, in response to the note, that a unanimity instruction was not warranted. See Opp. at 2, 5. The Court analyzes each point separately.

A- Forfeiture

As a preliminary issue, although the parties describe Defendant’s failure to request a unanimity instruction as a question of waiver, it actually appears to be one of forfeiture. As the Supreme Court has explained, “Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.” United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (citation and. internal quotation marks omitted). While this may be a distinction without a difference for purposes of this Motion, it is worth noting that: Heru-Bey did not expressly abjure a unanimity instruction at the charging conference. :

It is beyond dispute, nonetheless, that he never asked for such an instruction. And, as the Government points out, the rules require that “[a] party who objects to any portion of the instruction Or to a failure to give a requested instruction must inform the court of the specific objection and the grounds for the objection before the jury retires to deliberate.” Fed. R. Grim. P. 30(d)- (emphasis added). While this may be so, Defendant maintains that the jury’s note provided him a new lease on life. Since the jury asked whether it needed to find that he had-obstructed or impeded the laws by all three means offered by the Government; as opposed to just one, Heru-Bey argues that the Court should then, have explained that, although the jurors need not .agree on all means, they' must agree on at least one of the means. • . ■

The jury’s note, however, never actually posed--the unanimity question. In other words, the note did not inquire whether all jurors had to agree on a particular means; instead, it.simply asked whether they had to find Defendant had employed all means. That is a separate question. As the Court characterized the note at the trial: “[Tjhere is no issue on unanimity within means.- It’s just whether they need to agree on all the means.” Tr. at 2:17-18. Since the note did not request or require the Court to revisit the unanimity question, it had no obligation to do so. It thus believes Defendant’s prior forfeiture of the issue entitled the Court to respond to the note as it did.

B. Merits

Yet, an entirely independent basis exists for denying a new trial here. This is because even if Heru-Bey is right that his urging of a unanimity instruction in response to the jury note vitiated any prior forfeiture, he still cannot preyail because such an instruction was not required. Although the Court did mention waiver in fashioning a response to the note, it also looked at the - merits of the question — a point Defendant neglects in asserting incorrectly that “[t]he Court ■ rejected Mr. Hem-Bey’s position on the basis that he had previously waived the issue of unanimity,” Mot. at 3 — and concluded that Defendant was not entitled tp such an instruction, even if he had sought one at the charging conference. This remains the Court’s belief.

Contesting that position, Defendant attaches to his- Motion an unpublished opinion from the Tenth Circuit, United States v. Wood, 384 Fed.Appx. 698 (10th Cir. 2010), in which the district court did give a unanimity instruction in a case in which the defendant was similarly charged with corruptly endeavoring to obstruct and impede the internal-revenue laws. The instruction stated, in relevant part: “ Your vote, then, need not be unanimous that the defendant committed all of the, alleged acts. Your vote must be unanimous, however, that the defendant committed ait least one of the acts. Moreover, your voté must be unanimous as to the same act.’ ” Id. at 707 (quoting instruction; emphasis supplied by appellate court deleted).

Although the district court gave the kind of instruction that Heru-Bey contends this Court should have given here, the Tenth Circuit never offered any opinion on its legal propriety. The issue on appeal relating to the' instruction had nothing to do ■with unanimity; instead, the question was whether a failure to file tax returns, standing alone, could constitute sufficient grounds for a conviction under the statute. Id. at 708. (The court opined that it likely could not, but that the Government’s case was strong enough as to other means to survive plain-error review.) So this opinion offers no support for the proposition that the Tenth Circuit has endorsed a unanimity instruction in this type of case.

In fact, just the contrary proves true, In United States v. Sorensen, 801 F.3d 1217 (10th Cir.2015), the case upon which this Court relied' during the trial,’ that same Tenth Circuit affirmed a conviction for obstructing or1 impeding internal-revenue laws. In that case, the district court, just like the one in Wood, gave a unanimity instruction, to which the defendant had actually objected, although his tactical reason for doing so was not entirely clear. See id. at 1235. On appeal, the defendant argued that giving the instruction constituted error, and ' the Court of Appeals “agreefd] with [him] that’the district court erred in giving the instruction.” Id. at 1237. The court explained: “By requiring unanimity on a ‘listed’ means, the instruction also ignored the indictment’s language charging that Sorensen violated § 7212(a) ‘by the following means, among others Id. (emphasis original). The indictment here, too, charged Heru-Bey with acting “by various means, including, but not limited to, the following Superseding Indictment, ¶ 7. The Tenth Circuit nonetheless affirmed the conviction since the giving of the instruction “helped [Sorensen] and did not prejudice him” by “effectively increas[ing] the government’s burden in proving its case.” Sorensen, 801 F.3d at 1237. The key take-away1 here is that the Tenth Circuit believes a unanimity-instruction is improper in relation to the count on which Heru-Bey was convicted.

This Court, of course, is not bound by what a panel sitting in a different part of the country holds. Yet, such a decision appeared legally correct to the Court at the time of trial and does so now) too. In Richardson v. United States, 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999), the Supreme Court considered whether a jury must unanimously agree on the specific violations that make up a continuing criminal enterprise under 21 U.S.C. § 848. In doing so, it specifically distinguished elements of offenses from means by which such elements are accomplished. While a jury must be unanimous about the former, it typically need not agree on .the latter: “[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 the crime.” Id. at 817, 119 S.Ct. 1707; see also 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 representation 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) (“[Although 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.”) (citation omitted).

As a result, Heru-Bey is not entitled to a unanimity instruction on the particular means he employed to obstruct or impede the internal-revenue laws. While the Court thus believes such an instruction was not warranted here, at the very least it cannot find that its omission constituted a miscarriage of justice that would merit a new trial.

IV. Conclusion

The Court will, accordingly, issue a contemporaneous Order denying Defendant’s Motion. ' ’

Attachment

Friday, October 7, 2015.

THE COURTROOM DEPUTY: United States versus Jamal Adams.

THE COURT: Okay, folks. Welcome back. We have a note from the jury. Let me just you read it into the record I think you’ve been given a copy.

All right. I understand you have not been but' let mé head it for you. It is a little bit lengthy but I think fairly clear.

“Question on Count I. The opening para-, graph includes three “means” by which the defendant corruptly endeavored to obstruct and impede the internal Revenue laws namely (A) false W4s, (B) false documents to Bankruptcy Court, and (C) false tax returns. Our question is, do we need to find that all óf A, B and C each meet each of the three elements of the count to find him. guilty? That is, if we find the defendant guilty Of A, but not guilty of B, and not guilty of'C, must we find the defendant not guilty of Count I, or do we find him guilty of Count I because we found him guilty of A?”

I think the answer is pretty clear that the government doesn’t peed to prove that he has committed all o the offenses here. So I would propose— . .

Let me propose a response to them, then I will hear from you folks momentarily- . .

(There was a pause in the proceedings.)

THE COURT: I would propose answering something along the lines of, the government must prove beyond a reasonable doubt all three elements of Count I. But the government need not prove all three of the means listed.

The defense’s position on that?

MR. GARDNER: Your Honor, I agree with your premise. My concern is— ■ ■ ■

Court’s indulgence for one second.

THE COURT: Sure.

MR. GARDNER: Defense’s position is they need to be, even though they can find one, two or three, that they don’t need to find one, two and three. The defense’s position is they need to be unanimous on whether it is one, two or three, .

THE COURT: I’m not sure that’s correct, but they seem to indicate — I mean, let me propose something else. Then I’ll hear from the government because it seems they’re not — there is no issue on unanimity within means. It’s just whether they need to agree on all the means.

MR. GARDNER: That’s true.

THE COURT: But I could say, how about if I said: The government must prove beyond a reasonable doubt all three elements of Count I, but the government need not prove áll three of the means listed as long as you all agree on one of the means?

MR. GARDNER: I think that’s exactly right,1 Your Honor.

THE COURT: All right.

Government?

MS. SISKIND: There is actually a case on point on that issue. I don’t .have -the name. But if your clerk searches 7212(a) and specific unanimity, it should be the first case that comes up. It was- a case where a judge sua sponte gave an instruction.

THE COURT: That’s Williams from the 10th circuit.

MS. SISKIND: Yes, Your Honor.

THE COURT: It says you don’t need a unanimity'instruction.

MS. SISKIND: Yes, Your Honor.

THE COURT: So the question though, obviously that’s not a D.C. Circuit case. And the defense never requested unanimity instruction in the jury instructions, and maybe, therefore, if they don’t get one — if I give the ■ instruction I was prepared to give, that they have waived it.

But if the Court of Appeals finds they have not waived it and they find there is unanimity required in this circuit, then you could lose. So the question tactically is, since the jury does not indicate there is any dissent within a means, maybe you are better off with this instruction protectively than an argument that down the road is accepted by the Court of Appeals. .

MS. SISKIND: May I confer 'with Mr. McLellan? >

(There was a pause in the proceedings.)

MS. SISKIND: Your Honor, we’re going to object to a specific unanimity instruction. It wasn’t proposed initially by the defense, even though there is nothing on point in the D.C. Circuit, the one case, the only case I’ve ever located on this issue finds it is not a necessary instruction. And that it impermissibly expands the government’s burden in this case. As long as the jury finds each of the three elements beyond a reasonable doubt unanimously, that is sufficient. Unanimity as to means is not required for the statute.

THE COURT: That’s what this case says, Mr. Gardner, actually I looked at the case before the jury instructions came up, in the event that somebody raised the unanimity question. And that case, actually the District Court Judge there sua sponte gave the unanimity instruction, The defense, on appeal, the defense objected to that. The Court of Appeals said, it was error to give it. But how are you prejudiced? This helped you. So, it affirmed the conviction. But the point is, that the Court of Appeals did say on this specific code section, it was error to give a unanimity instruction.

MR. GARDNER: I actually did see that Williams case, it was in the instructions. But I agree with Ms. Siskind that that was the only case I could find from any circuit court. As you pointed out, it was not binding precedent from the Supreme Court or this circuit. So we don’t know what the Supreme Court will say, if it ever gets there, which right now it doesn’t appear on the path right now.

THE COURT: I’m hot going to give it because that is the law, you know, Williams has directly — the Cou'rt of Appeals looked at this directly, has determined this — it made sense to me when I read the case. The government may be taking a. bit of a risk and maybe they’re giving you an appellate issue. But my job can’t be to protect myself. It has to be to follow what I believe the law is and it appears to me it is not unanimity on this count.

■ MR. GARDNER: We understand, Your Honor.

THE COURT: Okay. So any objection beyond that to what I’ve proposed? Let me read I again for you.

The government must prove beyond., a reasonable doubt all three elements of Count I. But the government need npt prove, all three of the means listed.

MR. GARDNER: No, Your Honor,

THE COURT: Any objection by the government to that proposed instruction?

MS. SISKIND: No, Your Honor.

' THE COURT: I’m sorry, let me. just state for the record, and I was — Williams must have been another case. Williams is not the case in which this came up. Let me give you the cite for this case. I apologize to everybody. Williams dealt with this code section and also it is a 10th Circuit case. But it was not on the unanimity issue. So I apologize for the mix up. The case is U.S. v, Sorensen, .S-o-r-e-n-s-e-n. I’ll give you the Westlaw cite, it’s a 2015 case, 2015 WL 5315645, 10th circuit, just for everybody’s edification.

Okay, let’s bring the jury in and I’ll give them the instruction.

(Jury Present) ■

THE COURT: Okay, folks. Thanks for your note. I got it. Let me read it again to remind you folks what it was.

The question on Count I, the.opening paragraph includes three means by which the defendant corruptly endeavored to obstruct and impede the Internal Revenue laws namely (A) false W4s, (B) false documents to Bankruptcy Court and (C) false tax returns. Our question is do we need to find that all of A, B and C each meet each of the three elements of the count to find him guilty.

That is, if we find the defendant guilty of A, but not guilty of B, and not guilty of C, must we find the defendant not guilty of Count I? Or do we find him guilty of Count I because we found him guilty of A?

First of all, let me just compliment you on the clarity of your question. Having tried hundreds of jury cases, I can tell you that I’ve received many impenetrable notes from the jury. So, thank you for the clarity of the question. •

I don’t know if my answer will be as clear. I hope it will. But here is my answer. The government must prove beyond a reasonable doubt all three elements of Count I. But the government need not prove all three of the means listed. You may continue your deliberations.

(Jury Out)  