Atchison & Bloomfield v. United States

• Court: District of Columbia Court of Appeals
• Decided: August 19, 2021
• Docket: 18-CF-599 & 18-CF-606
• Status: Published

Opinion

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DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 18-CF-599 & 18-CF-606

TERRENCE N. ATCHISON & BARRY G. BLOOMFIELD, APPELLANTS,

V.

UNITED STATES, APPELLEE.

Appeals from the Superior Court of the District of Columbia (CF3-2335-16 & CF3-2337-16)

(Hon. Danya A. Dayson, Trial Judge)

(Submitted March 17, 2020 Decided August 19, 2021)

Sean R. Day was on the brief for appellant Atchison.

Gregory M. Lipper was on the brief for appellant Bloomfield.

Jessie K. Liu, United States Attorney at the time the briefs were filed, and Elizabeth Trosman, Suzanne Grealy Curt, Brittany Keil, Melissa Jackson, and Michael E. McGovern, Assistant United States Attorneys, were on the brief for appellee.

Before THOMPSON and BECKWITH, Associate Judges, and FISHER, Senior Judge . *

Opinion for the court by Associate Judge THOMPSON. Dissenting opinion by Associate Judge BECKWITH at page 29.

* Judge Fisher was an Associate Judge at the time the case was submitted. His status changed to Senior Judge on August 23, 2020. THOMPSON, Associate Judge: A jury convicted appellants Terrence

Atchison and Barry Bloomfield of aggravated assault while armed (“AAWA”),

two counts of assault with a dangerous weapon (“ADW”), assault with significant

bodily injury while armed (“ASBIWA”), ASBIWA against a minor, five counts of

possession of a firearm during a crime of violence or dangerous offense, unlawful

possession of a firearm, and destruction of property. On appeal appellants argue

that the trial court erred in declining to suppress Global Positioning System (GPS)

data from their ankle monitoring devices; abused its discretion in allowing

evidence of generalized inter-community hostility between the appellants’

neighborhoods and that of the victim; and deprived them of due process and of

their right to present a complete defense by barring them from rebutting the

government’s evidence of inter-community feuding with evidence of intra-

community violence involving one of the shooting victims. In addition, appellants

contend that the evidence was insufficient to show that they participated in, or

aided or abetted, the shooting. Although we agree with appellants that the

proffered evidence of intra-community violence was not third-party perpetrator

evidence that the trial court was required to exclude under Winfield, 1 we are

1 Winfield v. United States, 676 A.2d 1 (D.C. 1996) (en banc). 3

persuaded that any error in excluding the evidence was harmless beyond a

reasonable doubt. Because we reject appellants’ other arguments, we affirm.

I.

The charges against appellants arose out of the February 12, 2016, shooting

of Andre Wilkinson and his twenty-two-month-old son, B.T., at Wrenn’s

Barbershop (the “barbershop”), located at 1005 Eighth Street, S.E. The evidence

at trial established that at around noon on that day, Wilkinson went to the

barbershop with B.T. Wilkinson sat in a chair, holding B.T. in his lap, while he

waited for service. Several witnesses recounted what occurred while Wilkinson

continued to wait. Janine Daugherty testified that she saw three people dressed in

black wearing masks at the door of the barbershop. Barbers Harold Chatman and

Sheila Knox testified that they looked up from their customers and saw two

masked men. Chatman saw one of the masked men pull a black gun from his front

waistband. Daugherty “saw an arm come in” and start shooting. Chatman,

Daugherty, and Knox all testified that the gunfire was directed at Wilkinson and

his son. Knox and Chatman testified that they heard two sets of shots and saw a 4

gunman firing in Wilkinson’s direction, while Daugherty testified that she saw two

men shooting in his direction. Wilkinson testified that he saw a person with a

covered face at the door to the barbershop, and that he dove to the ground when he

saw the person reach for his waist. Once the masked men left the barbershop,

Knox went outside and flagged down an ambulance that was driving by. Both

Wilkinson and B.T. were wounded and were taken to hospitals.

Edward Zeigler, who was in a vehicle going south on Eighth Street near L

Street at the time of the shooting, testified that he heard gunshots and then saw

three men, all wearing ski masks, running down the sidewalk away from the

barbershop. Zeigler testified that while exiting the barbershop, the third man

“paused[,] . . . raised up his arm and . . . fir[ed] multiple shots [from a handgun]

into the salon.” The three men then ran around the corner onto L Street. Zeigler

saw no one else outside the barbershop. Stephanie Yeager was walking north on

Eighth Street near L Street at the time of the shooting. She heard gunshots and

then saw “at least two” people dressed in black with covered faces run away from

the barbershop and get into a white SUV that was facing west on L Street. Yeager

looked in the other direction momentarily, and when she looked back in the

direction where she had seen the white SUV, it was gone. Clifton Jenkins, who

lived above the barbershop, testified that he saw a white car parked on L Street 5

approximately twenty minutes prior to the shooting. A residential security camera

captured the sounds of the barbershop gunfire at 1:40 p.m., and the video footage

showed the white SUV, just a minute later, on L Street.

Metropolitan Police Department (“MPD”) Patrol Officer Sarah Mickey

testified that, in response to an increase in violent crimes in the Greenleaf Gardens

neighborhood and the adjacent James Creek and Syphax Gardens neighborhoods in

the southwest quadrant of the District of Columbia, she and her partner, Officer

James Jacobs, had been assigned to special beats covering those areas. During the

course of their work, Officers Mickey and Jacobs came to know appellants from

James Creek/Syphax Gardens, and Wilkinson from Greenleaf.

Officer Mickey developed a lead relating to the white SUV. Specifically,

when she learned that a white SUV had purportedly been used as a getaway car

after the shooting at the barbershop, she recalled having seen appellant Bloomfield

sitting in the driver’s seat of a white SUV on the 1500 block of First Street, S.W.

On that occasion, Mickey had run the vehicle’s plates and discovered that the car

had been rented by Hertz Rent-a-Car (“Hertz”) to Michael Ellis about three weeks

before the shooting. In the aftermath of the shooting, Mickey contacted Hertz to 6

see whether Ellis had extended his rental of the white SUV. Hertz confirmed that

the car had not been returned to Hertz. 2

Officer Mickey also recalled that she had previously asked the Bureau of

Alcohol, Tobacco, Firearms and Explosives (“ATF”) to place a video camera

overlooking the parking lot of 1514 First Street, S.W. She put MPD Detective

Robert Saunders, who led the investigation into the shooting, in touch with an ATF

agent who had access to the video footage. The ATF provided the footage, with

the following summary:

At 13:10, a white car pulls up; and one guy gets out. Five minutes later, six guys come back to the car. Four get in and park.

After receiving the ATF video, Detective Saunders asked Officers Jacobs and

Mickey to look at the video individually to see if they could identify any of the

men depicted in it. Both officers independently identified the driver as Anthony

Chambers (appellant Atchison’s brother) and two of the passengers as appellants. 3

Saunders also obtained video evidence from the District of Columbia Department

of Transportation and the Marine Barracks that showed the path of the white SUV

2 The car was subsequently reported as stolen on February 13, 2016 (the day after the shooting). 3 Neither officer was able to identify the third passenger of the car. 7

between 1:15 and 1:21 as it drove towards the barbershop. Video footage also

showed the white SUV heading towards the highway after the shooting. Ballistics

evidence showed that three guns were used in the shooting.

On the date of the shooting, both appellants were being monitored by the

Court Supervision and Offender Services Agency (“CSOSA”) via GPS ankle

monitoring devices that CSOSA had required each to wear. As part of his

investigation, Detective Saunders searched CSOSA’s GPS database to learn

whether anyone on CSOSA GPS monitoring was in the vicinity of the barbershop

at the time of the shooting. Detective Saunders testified that while the search

turned up hits for five individuals who came within 200 feet of the barbershop on

the day of the shooting, police discerned from a GPS report that both appellants —

but no one else who was being monitored — “appeared to be in front of the

[Eighth Street, S.E., barbershop] location” at 1:41 p.m., the time of shooting. More

detailed GPS records, which GPS expert Ashley Fuller explained have an

approximately fifty-foot margin of accuracy, put the ankle devices for both

appellants “close[] to Eighth Street, Southeast” at the time of the shooting. The

GPS records also showed that appellant Atchison’s ankle device was close to the

barbershop earlier in the day, at approximately 12:40 p.m. and that Atchison’s

coordinates during the time in between his two visits to the barbershop area and 8

during the time immediately after the shooting were consistent with the path taken

by the white SUV as captured by the various security cameras that showed the

vehicle. The GPS records showed the same as to Bloomfield’s ankle device during

the minutes immediately before and after the shooting.

Police found a ski mask in Bloomfield’s bedroom after the shooting. He

was a possible contributor to the DNA mix found on the mask.

II.

Appellants contend that CSOSA’s ankle-monitoring-device GPS

surveillance violated their rights under the Fourth Amendment and in addition that

CSOSA violated their reasonable expectation of privacy when it shared the GPS

data with MPD. Accordingly, appellants contend, the trial court erred in denying

suppression of the GPS data and the fruits of those data. 4

4 Atchison filed a motion to suppress the GPS data; Bloomfield joined the motion. 9

At the time the parties filed their briefs in this appeal, there was pending in

this court another case that raised the same Fourth Amendment issues that

appellants have raised here. That case, United States v. Jackson, has since been

decided, see 214 A.3d 464 (D.C. 2019), and appellants concede that it “control[s]

the outcome” of the Fourth Amendment issues in this case. We agree.

Mr. Jackson had been convicted of armed robbery and sentenced to twelve

months’ incarceration, with all but four months suspended in favor of a year of

probation supervised by CSOSA. Id. at 468. Mr. Jackson’s court-imposed

conditions of probation did not include GPS monitoring, but CSOSA placed him

on GPS monitoring after he violated the terms of his probation. Id. at 468–69. A

few weeks after CSOSA had equipped Mr. Jackson with a GPS monitor, an armed

robbery involving two men was reported in the Southeast quadrant of the city. Id.

at 469. After the incident, MPD ran “a check to determine whether any

supervisees under GPS monitoring by CSOSA were at the crime scene at the time

of the offense.” Id. at 470. The check produced two “hits,” including one for Mr.

Jackson. Id. When the police went to the two CSOSA supervisees’ homes, they

found the vehicle that matched the victim’s description of the robbers’ getaway

car, a bank card in the name of one of the victims, and “some items that may have

been in [the other victim’s] purse.” Id. 10

The trial court sustained a motion to suppress the GPS data and the

evidentiary fruits thereof. Id. We reversed that ruling, holding that “CSOSA’s

imposition of GPS monitoring . . . without judicial authorization” was

constitutional (even without probable cause or individualized suspicion of

wrongdoing) as a “special needs” search of individuals who were under criminal-

justice-system supervision. Id. at 463, 467. We concluded that any “reasonable

expectation of privacy [Mr. Jackson had] as a convicted offender on probation was

diminished and was outweighed by the strong governmental interest in effective

probation supervision to deter and detect further criminal activity on his part and

encourage his rehabilitation.” Id. at 467. We said that Mr. Jackson “had no

objectively reasonable expectation that CSOSA would withhold the GPS tracking

data from the police.” Id.

Here, for the same reasons we articulated in Jackson, we conclude that

CSOSA’s GPS surveillance of appellants did not offend the Fourth Amendment,

and that CSOSA did not violate any reasonable expectation of privacy when it

shared appellants’ GPS data with the MPD. Like Mr. Jackson, Atchison wore an

ankle monitoring device while on probation, while Bloomfield wore his device

while on supervised release. Both appellants were, like Mr. Jackson, proper 11

subjects of a special needs search, and neither could have had a reasonable

expectation that CSOSA would not share their GPS data with other government

agencies. Id. Bloomfield asserts in his reply brief that “it makes little sense to

treat parole [involved in cases that the government’s brief cites] and supervised

release identically,” because a parolee has had his sentence cut short and is serving

the remainder of his time outside of prison, while an individual on supervised

release has completed the entire term of imprisonment to which he was sentenced

and should not have his rights diminished. Bloomfield’s argument may also imply

that it is unreasonable to treat probation (as was involved in Jackson) and

supervised release identically since a probationer has avoided serving all or part of

a sentence. We are not persuaded by these arguments, as the entire premise of

supervised release is that the individual remains at risk of re-offending and is in

need of supervision to deter recidivism and encourage rehabilitation. See, e.g.,

United States v. Johnson, 529 U.S. 53, 59 (2000) (observing that

supervised release “fulfills rehabilitative ends”); United States v. Siegel, 753 F.3d

705, 708 (7th Cir. 2014) (“Reducing recidivism is the main purpose

of supervised release[.]”). In addition, here, as in Jackson, the fact that CSOSA

rather than the court required that the monitoring devices be worn did not render

the “search” unlawful. See Jackson, 214 A.3d at 467–68. We therefore see no

reason why the reasoning of Jackson should not govern appellants’ Fourth 12

Amendment claims in this case. Accordingly, we conclude that the trial court did

not err in denying the motion to suppress.

III.

Prior to appellants’ trial, the government filed a notice of its intent to

introduce evidence that there were, in the neighborhoods near the barbershop, “two

different rival, feuding groups, [and] hostility between these two groups.” The

prosecutor told the court that the government did not intend to “introduce any

evidence of criminal conduct by either of the groups” or to refer to either of the

two groups as a “crew” or “gang” (and the trial court instructed the prosecutor not

to use any “non-geographic” epithets for the neighborhoods that would suggest that

crews or gangs were involved). 5 The government explained that it was “the

association with the neighborhoods that would be part of the motivation for why

this particular individual in the car went with these individuals to that barber

5 The prosecutor had explained that individuals in the Greenleaf neighborhood referred to their area as “Killer K Street,” among other epithets, while those in Syphax referred to their area as “1st and Pistol,” among other names. 13

shop.” The parties eventually agreed to limit the scope of the testimony to the

proposition that “there [was] an uptick in violent assaults between the two

neighborhoods, and that the neighborhoods have a rivalry where they typically

would not be in each other’s neighborhood, even though they were close together.”

Pursuing that same theme during opening statements, the prosecutor told the jury

that victim Wilkinson and appellants came from different neighborhoods and that

“[t]hose two neighbor[hood]s had a long running historic rivalry, a feud, that had

been going on and was going on at the time of this shooting.”

Appellants contend that the trial court abused its discretion by allowing the

government to introduce and argue generalized evidence of inter-community

hostility between their neighborhoods and Wilkinson’s neighborhood. Appellants

refer, for example, to the government’s argument that “[i]t was Greenleaf versus

people from the Syphax community[]”; Officer Jacobs’s statement that “certain

individuals only stayed in certain neighborhoods”; Officer’s Mickey’s testimony

that “[i]f I saw someone from either side [in the other neighborhood], it would – it

would seem off to me[]”; and Detective Saunders’ testimony that there was violent

“feud[ing]” between Greenleaf and the other two neighborhoods. Appellants

contend that such “generalized neighborhood-feud evidence[]” was insufficient to

meet the standard of admissibility that this court has set forth for gang-affiliation 14

evidence, because it was devoid of “any evidence linking the defendants to any

past feuding or any past acts of violence” or gang or crew activity, and likewise

devoid of any evidence of a specific conflict between appellants and victim

Wilkinson. Appellants also contend that the generalized-hostility evidence was

irrelevant and that their trial was tainted by “motive-by-residence” and guilt-by-

habitation evidence.

The trial court offered defense counsel a choice between a ruling that would

allow the government to introduce “specific acts” of violence between the

neighborhoods, or a “sanitized version” whereby the government would be limited

to arguments and evidence referring to general animosity between the

neighborhoods. The government argues that having chosen the latter (by urging

the court to “mak[e] sure nothing else was going to come in with respect to

assaults[,]”), appellants now are foreclosed from making an argument contrary to

the position they took in the trial court. 6 But appellants contend that the choice the

trial court offered was really no choice at all because the government actually had

no specific evidence of violence or gang activity by either appellant. They argue

6 See Brown v. United States, 627 A.2d 499, 508 (D.C. 1993) (“We have repeatedly held that a defendant may not take one position at trial and a contradictory position on appeal.”). 15

that the evidence that was introduced was substantially more prejudicial than

probative.

We conclude that appellants’ arguments on these issues are not foreclosed,

but we also conclude that the evidence of inter-neighborhood hostility that the

court allowed the government to present was neither irrelevant nor substantially

more prejudicial than probative. The “threshold for relevance” is “relatively low”;

to be relevant, evidence need only have “some logical tendency to prove or

disprove a fact which is at issue in the trial[]” and “to make the existence or

nonexistence of a fact more or less probable than would be the case without that

evidence.” Williams v. United States, 77 A.3d 425, 433 (D.C. 2013). The facts

that appellants were from neighborhoods in which there was general hostility to

victim Wilkinson’s neighborhood, and that it was “off” for appellants to be in

Wilkinson’s neighborhood at the time of the shooting, made it at least slightly

more likely than not that appellants were involved in the shooting. Although no

evidence of gang activity by appellants or others in their neighborhoods and no

evidence of appellants’ bearing any hostility toward Wilkinson was proffered or

presented, situating the barbershop shooting within the framework of broader inter-

neighborhood tensions “suppl[ied] . . . a motive for an otherwise unexplained

[assault].” Bryant v. United States, 148 A.3d 689, 698 (D.C. 2016) (quoting Lazo 16

v. United States, 930 A.2d 183, 185 (D.C. 2007)). At the same time, given what

we perceive to be (and what we think jurors would have perceived to be) the

weakness of this motive-by-habitation evidence in implicating appellants in

particular, 7 we are satisfied that the evidence was not substantially more prejudicial

than probative and that the trial court did not exercise its discretion erroneously in

admitting and allowing the inter-neighborhood-hostility evidence and argument.

IV.

During her opening statement, counsel for appellant Atchison told the jury

that while the government argued that the shooting was “about neighbors not

getting along,” it had “neglected to tell” the jury that after Wilkinson was shot on

February 12, 2016, he “was taken to the hospital . . . and . . . placed under arrest

while at the hospital [for a burglary in his own neighborhood].” The government

made a relevance objection, explaining that Wilkinson had been acquitted of the

7 Appellant Atchison characterizes the government’s generalized motive evidence as “weak” and “incomplete[].” Bloomfield asserts that the government’s inter-community hostility evidence was “weakly probative of motive” and “far weaker” than the prosecutor suggested. We agree. 17

charges that formed the basis for his arrest while in the hospital. Atchison’s

counsel responded that because the court had allowed the government to argue that

the “neighborhoods did not get along,” appellants should be permitted to argue that

“the crime [Wilkinson] was accused of committing happened in his own

neighborhood,” and therefore “not only did [Wilkinson] supposedly have problems

with [the] other neighborhood[s], but he . . . ha[d] problems with his own

neighborhood[.]” The trial court struck the reference to Wilkinson’s arrest, but

permitted Atchison’s counsel to state that Wilkinson “may have had problems in

his own neighborhood.”

The following day, Atchison’s counsel argued again that evidence of

Wilkinson’s arrest ought to be admissible for the purpose of “rebutting the

[g]overnment’s inference that this was just some historical feud between

neighborhoods and the motive is the feud.” The trial court responded that

counsel’s argument raised a potential third-party perpetrator defense and asked the

defense for a proffer under Winfield. The prosecutor agreed that Winfield

governed, asserting that the defense was making “a backdoor attempt . . . to put in

front of the jury th[e] idea of another suspect[.]” Atchison’s defense counsel

conceded at trial that she could not make the requisite showing for a Winfield

proffer. However, throughout the discussions of this issue, counsel denied that she 18

was attempting to “say that there was a particular [third-party perpetrator][.]”

Rather, she explained, she was merely trying to raise the “quintessential defense

[of] attacking the investigation that went into the charging of [appellants].”

The trial court recognized the defense’s right to “discredit[] the caliber of an

investigation[.]” The court reasoned, however, that to the extent that “the thrust”

[of counsel’s intended] cross-examination [was that] this was “a sloppy

investigation” because police “did not look for a third-party perpetrator, that does

implicate Winfield.” The court reasoned that it is not possible to cross-examine a

police officer about whether he “look[ed] for somebody else with a motive without

implying that there was somebody else with a motive.”

Appellants contend that, having permitted the government to introduce

evidence of inter-neighborhood feuding and violence, the trial court erred in

barring them from offering evidence of intra-community hostility as rebuttal

evidence. They assert that the trial court thereby deprived them of due process and

undermined their Sixth Amendment right to “a meaningful opportunity to present a 19

complete defense,” 8 by preventing them from rebutting the prosecution’s case with

“defense evidence in kind.”

As noted, the trial court precluded the evidence appellants wished to present

on the ground that it was third-party perpetrator evidence subject to the

requirements of Winfield. Winfield establishes that third-party perpetrator evidence

is admissible only if it “tend[s] to indicate some reasonable possibility that a

person other than the defendant committed the charged offense.” 676 A.2d at 4.

To indicate such a reasonable possibility, the defense “ordinarily” must have

“proof that [a third-party] had the practical opportunity to commit the crime,

including at least inferential knowledge of the victim’s whereabouts.” Id. at 5.

Thus, third-party perpetrator evidence is not admissible “based solely upon who

had a motive or ill will against the victim at the time of [the crime’s]

commission[.]” Id. at 5 n.5. Further, third-party perpetrator evidence must be

excluded if it is “too speculative with respect to the third party’s guilt.” Ashby v.

United States, 199 A.3d 634, 658 (D.C. 2019).

8 Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)). 20

Appellants argue that they “w[ere] not offering a Winfield defense.” We are

persuaded by this argument. Although the issue presents a close question, we think

it is most apt to say that the defense evidence was designed only to meet the

government’s generalized motive evidence, not to point the finger at or cast

suspicion on a “hypothetical . . . unidentified, unknown person with only generic

reasons for committing the crime.” Gethers v. United States, 684 A.2d 1266, 1271

(D.C. 1996). Admission of the evidence would not have left the jurors to speculate

that an (unidentified) third person (rather than appellants) was involved in the

shooting; rather, it would have enabled jurors to recognize (perhaps more clearly

than they did already) that the government’s generalized motive evidence was not

particularly probative of the shooters’ identity. That intended use of the evidence

was not the “ordinar[y]” use that Winfield addressed. Winfield, 676 A.2d at 5.

Further, the evidence that Wilkinson was accused of burglarizing a victim in his

own neighborhood was not evidence that had “only a weak logical connection to

the central issues in the case.” Holmes v. South Carolina, 547 U.S. 319, 330

(2006). That is because, unlike the government’s generalized motive evidence, the

defense evidence that was excluded offered a reason specific to Wilkinson about

why there may have been hostility toward him within his own neighborhood. 9

9 Exclusion of this evidence while allowing the government’s inter- neighborhood hostility evidence was analogous to the situation we addressed in (continued…) 21

Moreover, we agree with appellants that this is an instance in which the Winfield

rule, even assuming it applies, possibly 10 had an impact “disproportionate to the

ends [it is] asserted to promote.” Holmes, 547 U.S. at 326.

For the foregoing reasons, we conclude that the trial court erred in reasoning

that Winfield required exclusion of the defense evidence. We are satisfied,

however, beyond a reasonable doubt, that exclusion of the evidence was

harmless. 11 As we discuss further below, the government’s GPS tracking, video

surveillance, and flight evidence was strong. In addition, as we have said, the

(…continued) Headspeth v. United States, 86 A.3d 559 (D.C. 2014). We reasoned that it was error for the trial court to give the jury an instruction that permitted them to infer consciousness of guilt from the defendant’s flight from a particular police officer, when “the jury had no knowledge of the history between [the defendant] and [the police] [o]fficer” that “would have given [the defendant] a particular aversion to be restrained by [the] [o]fficer.” Id. at 567 (noting that jurors “were ignorant of the history that might have [otherwise] explained [the defendant’s] reaction”). 10 We say “possibly” because the trial court did not evaluate, and we express no opinion on, whether the evidence was excludable on other grounds, such as its potential for distraction of the jury or confusion of the issues. See Winfield, 676 A.2d at 5. 11 Our case law establishes that where the excluded evidence was proffered to show a reasonable possibility that someone else committed the crime, we must determine whether exclusion of the evidence was harmless beyond a reasonable doubt. See Brown v. United States, 932 A.2d 521, 526 n.6 (D.C. 2007). We assume without deciding that the same standard applies here even though, for the reasons discussed in the text, we are persuaded that the excluded evidence was not Winfield evidence but had a different and legitimate defense purpose. 22

government’s generalized motive evidence was weak even if unrebutted by the

excluded defense evidence, and nothing in that generalized evidence specifically

tied either appellant to the shooting. Moreover, defense counsel was permitted to

and did argue the weakness of the generalized motive evidence, and to argue that

Wilkinson may have had problems in his own neighborhood. We are satisfied that

the verdicts were not swayed by exclusion of the evidence of Wilkinson’s burglary

arrest (that was proffered as intra-neighborhood hostility evidence).

Finally, appellants argue that the evidence was insufficient to show that they

personally participated in, or aided or abetted, the shooting. Our review of this

claim is de novo. Nero v. United States, 73 A.3d 153, 157 (D.C. 2013). We

“view[] the evidence in the light most favorable to the government, giving full play

to the right of the fact finder to determine credibility, weigh the evidence, and draw

justifiable inferences of fact.” Tornero v. United States, 161 A.3d 675, 685 (D.C.

2017) (internal quotation marks and brackets omitted). The threshold for 23

insufficiency can be met only where “we conclude, as a matter of law, that no

reasonable juror . . . could convict on the evidence presented.” Id.

In order to prove each of the appellants guilty under an aiding and abetting

theory, the government had to prove that each had a purposive attitude toward the

shooting, i.e., “associate[d] himself with the venture[,]” “participate[d] in it as in

something that he wishe[d] to bring about,” and “s[ought] by his action to make it

succeed.” Walker v. United States, 167 A.3d 1191, 1201–02 (D.C. 2017). In

addition, to prove appellants’ guilt of AAWA under an aiding and abetting theory,

the government had to prove that each “himself intended to cause serious bodily

injury or acted with extreme indifference to human life[,] because he knew either

that the principal would commit an assault with such intent, or that the principal

would intentionally engage in an assaultive act that actually created a grave risk of

serious bodily injury.” Perry v. United States, 36 A.3d 799, 817 (D.C. 2011).

Further, to convict appellants as aiders and abettors with respect to any of the

armed offenses with which they were charged (AAWA, ADW, ASBIWA), “there

must [have been] evidence to support a reasonable inference that the accomplice

was aware the crime would be committed while armed.” Id. at 813 (internal

quotation marks omitted). 24

In arguing that the evidence was insufficient to convict either of them as

principals in the shooting, appellants emphasize that four individuals got into the

white SUV before the shooting and fled the area right after the shooting, and that

the government’s evidence did not pinpoint them as the shooters (instead of, for

example, as companions who were merely present at the scene). Appellants also

emphasize that no testimony or physical evidence suggested that there were more

than three shooters; therefore, they contend, even when the evidence is viewed in

the light most favorable to sustaining the convictions, neither appellant was

conclusively shown to have been one of the three shooters, rather than merely the

fourth man in the white SUV. Additionally, Atchison emphasizes the lack of

physical evidence tying him to the shooting, and Bloomfield stresses that the

witnesses’ descriptions of the masked shooters are incompatible with his age and

build (twenty-six years old and six foot one at the time of the shooting).

Specifically, he notes, Knox described the masked men as “short” “kids” or

“young boys” who were “skinny,” and Daugherty, who testified that she is “five

foot nine and a half,” described the tallest of the shooters as being around her

height.

We are satisfied that the evidence was sufficient for the jury to find that

each appellant was one of the shooters. Contrary to appellants’ contentions, the 25

circumstantial evidence presented at trial established more than appellants’ mere

presence at the scene (although data from appellants’ ankle device GPS records

and the audio of the surveillance footage that captured the sound of the gunshots,

which were consistent with each appellant’s ankle device being in front of the

barbershop at the precise time of the shooting, were important pieces of the

government’s evidence). 12 First, Zeigler saw no one else in front of the barbershop

when he saw the three masked men run away, permitting the jury to infer from his

testimony, and from the GPS records, that appellants were two of the three masked

men who, according to Yeager’s testimony, got into the white SUV that left the

area immediately thereafter. In addition, the government presented evidence that

(1) appellants and Wilkinson belonged to rival neighborhoods, (2) Atchison had

the opportunity to learn Wilkinson’s whereabouts when he went to the barbershop

12 Our dissenting colleague emphasizes the testimony by GPS expert Fuller that the GPS data, which were accurate within about 50 feet, showed only the approximate location of appellants’ ankle bracelets/GPS receivers rather than their exact location. But appellants agree that the GPS data together with the other evidence permit an inference that appellants traveled to the barbershop vicinity before the shooting in a white SUV, were there during the shooting, and left there afterwards. Appellant Bloomfield’s brief acknowledges that “[a]t most, [Bloomfield] was placed in the car that the shooters rode to and from the barbershop” and that “[a]t most, the evidence established that [Bloomfield] was in the car that the shooters rode to the barber shop.” Appellant Atchison’s brief acknowledges that “GPS maps showed the ankle bracelets assigned to Atchison and Bloomfield going to, at, and from the barbershop vicinity near the time of the shooting.” 26

prior to the shooting, (3) within a few weeks before the shooting, Bloomfield had

been seen in a car that looked like the getaway car (the white SUV) used by the

assailants, (4) Chambers was the driver of the white SUV that drove with three

passengers, including the two appellants, toward the barbershop, 13 (4) three

different guns were used in the shooting, and (5) Bloomfield had a ski mask in his

bedroom that was potentially linked to his DNA. Taken together, the evidence

permitted the jury reasonably to infer that Atchison knew that Wilkinson was in the

barbershop, that Bloomfield arranged for transportation in the white SUV to the

barbershop before the shooting and for the vehicle to provide get-away

transportation after the shooting, and that there were three shooters (i.e., that all

three masked men whom Zeigler saw were shooters), including appellants. The

jury could reasonably reject any other explanation for the foregoing evidence as

too much of a coincidence to support any other conclusion. 14

13 As noted earlier, the still photograph from the ATF surveillance camera enabled Officers Mickey and Jacobs to identify appellants as two of the four men who climbed into the white SUV before the shooting and before the vehicle drove toward the barbershop. As also noted earlier, per GPS data and video surveillance footage, appellants’ movements during the twenty minutes before the shooting matched the path of the white SUV and their movements after the shooting matched the path of (what Atchison concedes was) the vehicle’s flight. 14 “Coincidences happen, but an alternative explanation not predicated on happenstance is often the one that has the ring of truth.” Poulnot v. District of Columbia, 608 A.2d 134, 139 (D.C. 1992). 27

As to the physical description of the shooters that differed from

Bloomfield’s physical characteristics, the discrepancy “affected only the weight of

the evidence, not its sufficiency[.]” United States v. Bamiduro, 718 A.2d 547, 552

(D.C. 1998); see also Lewis v. United States, 930 A.2d 1003, 1011 (D.C. 2007)

(noting that this court has previously rejected claims of insufficiency “[e]ven if

discrepancies exist between the witness’ description of the defendant and his actual

appearance”) (quoting Hill v. United States, 541 A.2d 1285, 1287 (D.C. 1988)).

This is not a case in which there was “no evidence upon which a reasonable mind

could fairly conclude . . . beyond a reasonable doubt,” Harris v. United States, 668

A.2d 839, 841 (D.C. 1995), that appellants were among the men involved in the

barbershop shooting.

We can agree that the evidence did not compel the jury to find that either

appellant was an actual shooter. But even if jurors were not persuaded of

appellants’ guilt on that basis, the evidence was sufficient for them to find that

each of the appellants participated with a purposive attitude toward the shooting.

To repeat, the evidence permitted the jury reasonably to infer that Atchison

surveilled the barbershop before the shooting, and that Bloomfield arranged for the

white SUV to provide transportation to the barbershop and a swift get-away to the

highway after the shooting. This is precisely the type of evidence that we have 28

said “supports an inference that [appellants] participated in the crime from the

beginning and took steps to make it succeed.” Robin v. United States, Nos. 12-CF-

802 & 12-CF-925, 2015 D.C. App. LEXIS 256, at *13 (D.C. 2015).

We are also satisfied that the evidence permitted the jury to find that each

appellant had the mens rea required of an aider/abettor of AAWA and the other

while-armed offenses of which they were convicted. The evidence that permitted

the jury to infer that appellants were two the three masked men seen leaving the

barbershop also permitted an inference that appellants sought to disguise

themselves as they participated in a crime. And although several witnesses

described what occurred at the barbershop, none described any crime or attempted

crime other than the assault from outside the barbershop, targeted at Wilkinson,

using a method (firearms) that would be effective from the outside. 15 In other

words, the evidence supported an inference that the shooting was not merely an

unforeseen result, but the entire purpose of the group’s trip to the barbershop. The

assailants did not, for example, enter the barbershop and approach Wilkinson as if

to start a fistfight, or try to take his belongings or those of other patrons or workers

15 A ballistics expert testified that the shell casings were found outside the barbershop (except for a few found just inside the door of the barbershop), and witnesses testified that they saw the shooters’ arms reach into the barbershop or saw a shooter in the doorway. 29

and end up shooting Wilkinson and B.T. in the process. So the jury could infer

that the while-armed assaults were the crimes with which appellants associated

themselves. In addition, the jury could reasonably infer that appellants’

participation in a venture involving use of a gun to commit assault constituted

acting either with an intent to cause serious bodily injury or with “extreme

indifference to human life[.]” Perry, 36 A.3d at 817.

For all the foregoing reasons, the judgments of conviction are

Affirmed.

BECKWITH, Associate Judge, dissenting: The jury in this case had a basis to

infer that at least four men traveled in a white SUV to the vicinity of Wrenn’s

barbershop, that appellants Terrence Atchison and Barry Bloomfield were among

them, that twenty minutes later two or three men fired gunshots into the

barbershop, and that the shooters then ran to the SUV and fled the area with the

others in that vehicle. No eyewitness identified Mr. Atchison or Mr. Bloomfield as

one of the shooters, 1 and no ballistics or DNA or fingerprint evidence placed them

1 The eyewitnesses’ descriptions conflicted particularly starkly with Mr. Bloomfield’s appearance. Mr. Bloomfield was 6 foot 1. One witness testified that the tallest person was 5 foot 9 inches tall, and another described the shooters as (continued…) 30

at the barbershop door. As the prosecutor acknowledged in opening statement,

“nobody, not the victim, not anybody else in that barbershop, could identify them,

could say who it was who was pulling the triggers,” and “they didn’t go inside the

barbershop and roll around leaving their DNA and prints everywhere.” 2 The proof

was “insolubly ambiguous”—as consistent with the men being unwitting

passengers or companions who knew about the shooting and tried to stop it. See

Peery v. United States, 849 A.2d 999, 1002 (D.C. 2004) (quoting Rivas v. United

(…continued) “small” “skinny” people who “looked like kids.” My colleagues in the majority contend that these discrepancies go to the weight of the evidence, ante at 26, but that rule applies only where there is ample evidence of identity apart from any inaccurate descriptions. See, e.g., Beatty v. United States, 544 A.2d 699, 703 (D.C. 1988) (finding insufficient evidence of identity in a robbery case where all testimony about “the identity of the bagman was inconsistent with [the defendant]”); Crawley v. United States, 320 A.2d 309, 312 (D.C. 1974) (reversing conviction on sufficiency grounds based in part upon the “significant discrepancy . . . between the description given by the complainant to the police and appellant’s actual description”); United States v. Bamiduro, 718 A.2d 547, 551 (D.C. 1998) (finding sufficient evidence of identity where the evidence overall “lent” the identification “very substantial corroborative force” and where “the discrepancies were too slight to mistrust the jury’s ability to resolve them”). Here, no witness gave any testimony regarding the assailants’ appearance that compensated for the dearth of other evidence regarding the identity of the shooters. Lancaster v. United States, 975 A.2d 168, 171 (D.C. 2009) (“In considering sufficiency of the evidence when identification is at issue, we must focus on the reliability of the identification.”). 2 The prosecutor also stated that when the police executed a search warrant at Mr. Atchison’s house, “there was nothing. Nothing at all.” And it was not remarkable that a ski mask found at Mr. Bloomfield’s home may have had his DNA on it. 31

States, 783 A.2d 125, 137 (D.C. 2001) (en banc)).

To compensate for the lack of evidence that Mr. Atchison and Mr.

Bloomfield were among the actual shooters at the barbershop—and to prove that

they were not just aware of or in the vicinity of the shooting, or merely along for

the ride with the actual shooters—the government relied on the testimony of its

GPS analyst, Ashley Fuller, and her interpretation of the data taken from GPS

ankle monitors both men were wearing that day. 3 This strategy hit a snag,

however. Ms. Fuller’s testimony failed to substantiate the storyline that the

prosecutors presented to the jury in opening and closing statements, a narrative that

culminated in the assertion that Mr. Atchison and Mr. Bloomfield were “right in

front of the barbershop” at the time of the shooting. Instead, Ms. Fuller’s

testimony confirmed that the GPS data did not place Mr. Atchison and Mr.

Bloomfield in the position of the shooters.

Still, my colleagues in the majority conclude that evidence that Mr. Atchison

and Mr. Bloomfield were present in the area was enough to prove they were

shooters. Our binding precedent compels the opposite conclusion. See, e.g.,

United States v. Bailey, 416 F.2d 1110, 1118 (D.C. Cir. 1969) (finding insufficient

3 The court allowed Ms. Fuller to testify as an expert in “the integration in GPS technology into the VeriTracks software system.” 32

evidence of guilt where Mr. Bailey’s conduct “amounted to presence at the scene

of the crime, slight prior association with the actual perpetrator, and subsequent

flight”); see also Hicks v. United States, 150 U.S. 442, 450 (1893) (affirming that

presence at the scene of a crime does not constitute guilt); Acker v. United States,

618 A.2d 688, 689 (D.C. 1992) (“[M]ere presence at the scene of a crime

committed by someone else, even with knowledge that an offense has been

committed is insufficient to sustain a conviction as an aider or abetter.”); Bolden v.

United States, 835 A.2d 532, 535 (D.C. 2003) (same). Because Ms. Fuller was

clear that the GPS data did not support the prosecutor’s attempt to place Mr.

Atchison and Mr. Bloomfield where the shooters would have been and because

nothing else in the record specifically implicated them, “[t]he jury could only

speculate as to appellant[s’] actual role” in the shooting. Speight v. United States,

599 A.2d 794, 798 (D.C. 1991). This court should vacate these men’s convictions

because no reasonable juror could find beyond a reasonable doubt that Mr.

Atchison or Mr. Bloomfield committed or aided and abetted the shootings in this

case.

The constitutional right to due process “protects the accused against

conviction except upon proof beyond a reasonable doubt of every fact necessary to

constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364

(1970); see also Sandstrom v. Montana, 442 U.S. 510, 524 (1979); Francis v. 33

Franklin, 471 U.S. 307, 324–25 (1985). In this case, that means (among other

things) establishing that those who were on trial for the assaults and gun crimes

were the people who committed the shooting at the barbershop or aided and

abetted its commission.

The GPS reports—as interpreted and explained to the jury by Ashley

Fuller—were the basis for the government’s contention that Mr. Atchison and Mr.

Bloomfield fired shots into the barbershop that day and were therefore guilty as

principals. Yet there is no testimony or exhibit in the record supporting what the

prosecutor said in opening and closing—that GPS records “showed that they were

standing directly outside Wrenn’s barbershop at the very time shots were fired into

the store” and “that each was in front of the barbershop at the precise time of the

shooting.” Ms. Fuller did not draw such a conclusion from the GPS data she

analyzed. She made clear, in fact, that the data would not substantiate the

prosecutor’s statements. Throughout her testimony, she emphasized the limitations

of the GPS system’s ability to pinpoint the location of the device (and thus of the

person reasonably presumed to be wearing the device). She noted, for example,

that “the satellites move at 7,000 miles an hour so there is a fair amount of

movement that’s going into play during the calculations of locations.” She

repeatedly underscored the 50-foot margin of accuracy and stated that certain 34

environmental factors—like a cluster of buildings, a body of water, or a large

structure, such as a brick, cinderblock, or commercial construction—can create an

environment unfriendly to GPS that can impair the communication between the

satellite and the device and “can extend the margin of accuracy to upwards of 150

feet.” 4 Ms. Fuller emphasized accordingly that the red dots on the GPS maps

indicating minute-by-minute reports of longitude and latitude did not represent the

actual location of the GPS devices. She could not tell whether the devices were

inside or outside or stationary or moving, and she testified that the straight red lines

between the coordinates plotted on the report did not show a suggested route or

indicate the exact path the device traveled. She further testified that she could not

tell by looking at a particular dot on the map what the path of someone’s travel

was, that she had “no idea how a person might have gotten anywhere,” and that she

had “no idea how the device might have gotten from one point to the next.” See

Trial Tr. 428, Feb. 22, 2018 (“I can’t tell you where he might be located.”), id. at

432 (“I never said Mr. Atchinson [sic] was anywhere.”); id. at 463–64 (“I can’t

testify about where Mr. Atchinson [sic] was located”—only where the device was

within the margin of accuracy).

4 She named Nationals Park as an example of a large structure present on the map the prosecutor showed her, and she agreed that the nearby Anacostia River was “a body of water that is local.” Id. at 380–81, 423, 481–485. She never testified that these environmental factors were not in play here. 35

Ms. Fuller was the only witness who could potentially link Mr. Atchison and

Mr. Bloomfield to the actual shooting. She was the witness the government

promised would compensate for the absence of eyewitness and physical evidence

in that regard. Yet by the end of her testimony, Ms. Fuller had made clear that at

least in this case, the GPS data was not susceptible of the government’s

interpretation and that the specific location of two coordinates on a map did not

demonstrate the proximity of two devices (and of two people wearing those

devices). Put simply, she could not place Mr. Atchison and Mr. Bloomfield in

front of the barbershop. She could not prove more than presence near the scene of

the crime, which, even coupled with evidence of “an accused’s prior association

with one who is to become a criminal offender . . . does not warrant an inference of

guilty collaboration.” Bailey, 416 F.2d at 1114.

Even if the coordinates were probative of the appellants’ specific location—

which they were not—Ms. Fuller’s testimony still undermined the government’s

attempt to place the two men together in front of the barbershop at the critical

moment. When the prosecutor sought to elicit testimony about the two men’s

precise location at the time of the shooting, for example, Ms. Fuller testified that

the closest street to Mr. Bloomfield was Virginia Avenue, and the closest street to

Mr. Atchison was L Street. She said no to the question whether she could tell “if

they had gone down Eighth Street and over to L Street and back around, or if they 36

went directly to, I think that’s Virginia Avenue?” Id. at 490. And when the

prosecutor asked her “when you’re looking at those red dots that we were looking

at on all the maps . . . can you be more confident in certain red dots’ accuracy than

others?” she responded, “In general, I can be” but “[i]n this instance, no.” Id. at

486. In sum, the single expert witness called by the government to explain the

GPS data to the jury effectively repudiated the government’s theory that the data

could place Mr. Atchison and Mr. Bloomfield in front of the barbershop at the time

of the shooting—the crux of the government’s theory that the two men were

principals in this offense. 5

The government does not have to negate every theory of innocence.

Hawkins v. United States, 119 A.3d 687, 700 (D.C. 2015). But here, it failed to

present evidence to counter Mr. Atchison’s and Mr. Bloomfield’s most basic

assertions at trial—that no evidence placed them at the shooter’s location. See id.

(stating that “the verdict also cannot rest on speculation or unwarranted

5 Although Detective Robert Saunders testified at one point that the GPS placed Mr. Atchison and Mr. Bloomfield “in front of the location,” the detective was not an expert qualified to read the report, the jury was instructed to rely solely on the verified data presented through Ashley Fuller’s testimony, and the report Saunders was consulting was not introduced for the truth of its contents. The report in question—which, like the reports Ms. Fuller analyzed, was generated by the company VeriTracks, which tracks individuals under GPS supervision— indicated that sixteen GPS-monitored individuals were in the vicinity of the shooting at the time of the shooting. 37

inferences”). Ashley Fuller’s testimony did not support the government’s theory

that the two men were in front of the barbershop at the same time (or establish their

location at the shop’s entrance in some other way), and so the evidence is equally

consistent with each man just being in the area, perhaps even trying to dissuade the

other men. Peery, 849 A.2d at 1002 (finding the government’s evidence

insufficient because “both innocent and guilty explanations for [the appellant’s]

behavior may exist”).

My colleagues in the majority state that even if the government did not

present sufficient evidence that Mr. Atchison and Mr. Bloomfield were the

shooters, they were guilty under an aiding and abetting theory. The government

does not develop any argument in its brief regarding the sufficiency of the

evidence supporting the convictions on aiding and abetting grounds. Its main

argument is that Mr. Atchison and Mr. Bloomfield were principals in the shooting

because their GPS records “show that they were standing directly outside Wrenn’s

barbershop at the very time shots were fired into the store.” But if the government

were relying on an aiding and abetting theory, presence and association would not

be enough, “even with knowledge that an offense has been committed.” Acker,

618 A.2d at 689. In order to convict Mr. Atchison and Mr. Bloomfield of aiding

and abetting the shooting, the government had to prove that each had a “purposive

attitude” toward the shooting, meaning that he “associate[d] himself with the 38

venture,” “participate[d] in it as in something that he wishe[d] to bring about,” and

“s[ought] by his action to make it succeed.” Wilson-Bey v. United States, 903 A.2d

818, 831 (D.C. 2006) (en banc) (adopting Judge Learned Hand’s purpose-based

formulation of the mens rea required for aiding and abetting in United States v.

Peoni, 100 F.2d 401 (2d Cir. 1938)).

The majority concludes that if Mr. Atchison was not one of the shooters,

then the evidence was sufficient to support his convictions on an aiding and

abetting theory because Ms. Fuller’s testimony that Mr. Atchison’s GPS

coordinates were in the general vicinity of Wrenn’s—around Virginia Avenue and

L and Eighth Streets S.E.—at 12:40 p.m. “permitted the jury reasonably to infer

that Atchison surveilled the barbershop before the shooting.” Ante at 27. The

government’s reliance on the GPS data at trial to demonstrate that Mr. Atchison

aided and abetted the shooting by “surveill[ing]” the barbershop was unfounded for

the same reason its reliance on GPS evidence to prove the two men were shooters

was unfounded. The prosecutor stated in opening that Mr. Atchison was “standing

in front of the barbershop” one hour before the shooting. In closing, the prosecutor

argued that the shooters “knew where Andre was” because Mr. Atchison “was

standing right outside the window at 12:40 watching [Andre Wilkinson] figuring

out where he was sitting in that barbershop.” Yet nothing in the GPS data or

Ashley Fuller’s analysis of it supported an inference that Mr. Atchison traveled to 39

the area, slowed down or stopped, or got out of his vehicle, no less that he stood

outside the barbershop while confirming that Andre Wilkerson was inside. As in

Bailey, “[t]here is no trustworthy indication that [he] was a party to the scheme”

and “the record is devoid of evidence disclosing circumstances that could give that

sort of color to appellant’s conduct.” 416 F.2d at 1114 n.28. That is, the record

contains no evidence—not in the GPS report, and not in Ms. Fuller’s testimony

explaining it—indicating that Mr. Atchison’s device did anything more than pass

through the vicinity of the barbershop, which is located on the main artery of 8th

Street between two points: a location where the device had traveled and then

remained for nine minutes (near 14th and E Streets S.E.) and the parking lot at First

and P Streets S.W. where both appellants’ GPS coordinates remained for a time

prior to the shooting. Without any testimony from witnesses who saw Mr.

Atchison take any relevant action (stop or park or get out of his car, for example)

before the shooting, the government’s evidence is insufficient to support the

prosecutor’s contention in closing, see id., and thus insufficient to demonstrate a

purposive attitude toward the shooting.

As to Mr. Bloomfield, the majority concludes that the government’s

evidence “that Bloomfield arranged for the white SUV to provide transportation to

the barbershop and a swift get-away to the highway after the shooting” was

sufficient evidence that he “participated with a purposive attitude toward the 40

shooting” and was therefore guilty as an aider and abettor. Ante at 27. Again, the

government itself does not make this argument, and the record contains no

evidence of such an arrangement. The only evidence involving a connection

between Mr. Bloomfield and a white SUV is Officer Mickey’s testimony that she

saw Mr. Bloomfield sitting in a white SUV several weeks before the shooting.

This testimony surely does not support a reasonable inference that several weeks

later Mr. Bloomfield provided a similar car for the purpose of transporting the men

to the barbershop to commit the shooting and getting them away from the scene

afterward. See Perry v. United States, 276 A.2d 719, 719–20 (D.C. 1971) (holding

that, where “the only evidence against appellant was that he was standing in front

of the broken window of a store that was being burglarized by two other men, with

one of whom he had a casual acquaintance,” the evidence, “while perhaps raising a

strong possibility or even strong suspicion of participation in the criminal activity,

was not sufficient for finding appellant guilty beyond a reasonable doubt”). The

theory is further undermined by the evidence that Mr. Bloomfield was not the

vehicle’s driver and by the lack of evidence that Mr. Bloomfield brought the SUV

to the parking lot in Southwest D.C. that day.

The evidence, viewed in the light most favorable to the government, is not

sufficient to support a reasonable inference that Mr. Atchison and Mr. Bloomfield

were shooters or were aiders and abettors who had a purposive attitude toward the 41

shooting. Because the jury necessarily acted on “surmise and conjecture, without

evidence,” Bailey, 416 F.2d at 1113 (citation omitted), I respectfully dissent from

my colleagues’ contrary conclusion.