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DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 18-CF-870 & 19-CF-675
DERRYCK ANTJUAN DECUIR, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeals from the Superior Court of the District of Columbia (CF1-8347-15)
(Hon. Hiram Puig-Lugo & Hon. Craig Iscoe, Trial Judges)
(Argued June 16, 2022 Decided November 23, 2022)
Jennifer Williams, Public Defender Service, with whom Samia Fam and Jaclyn Frankfurt, Public Defender Service, were on the brief, for appellant.
Ethan L. Carroll, Assistant United States Attorney, with whom Channing D. Phillips, Acting United States Attorney at the time the brief was filed, and Chrisellen R. Kolb, Elizabeth H. Danello, and Jeffrey S. Nestler, Assistant United States Attorneys, were on the brief, for appellee.
Before BECKWITH, MCLEESE, and ALIKHAN, Associate Judges.
ALIKHAN, Associate Judge: Derryck Decuir was convicted on various charges
stemming from the June 2015 shooting of Malek Mercer. On appeal, he raises
several claims of error. For the reasons explained, we reverse Mr. Decuir’s
convictions for second-degree murder and possession of a firearm during a crime of 2
violence due to the erroneous admission of witness testimony from an earlier trial.
We affirm the appellant’s remaining convictions.
I. Factual Background and Procedural History
After 11:30pm on June 15, 2015, Malek Mercer walked to a bus stop on 28th
Street, SE, with his friend Tysean Bethea and Mr. Bethea’s girlfriend, Amani Jenifer.
Mr. Mercer was carrying a black duffel bag that may have contained a shotgun. The
trio took the bus to the corner of Minnesota and Pennsylvania Avenues, SE, at which
point Ms. Jenifer left to transfer to another bus, and Mr. Mercer and Mr. Bethea
crossed the street to wait for the bus to go back to Mr. Bethea’s house.
Mr. Decuir was also waiting at the bus stop with his friends, including Aaron
McCaskill and Anthony Ryans. Mr. Decuir, who was armed with a Ruger 9mm
handgun, made a comment about Mr. Mercer’s belt, at which point Mr. Ryans said,
“[w]hy you looking at that boy’s butt?” The bus arrived, and everyone boarded.
After a short ride, both groups of men got off the bus at 28th Street and Naylor Road,
SE. Mr. Mercer and Mr. Bethea exited first, with Mr. Decuir, Mr. Ryans, and Mr.
McCaskill behind them. At trial, Mr. Bethea testified that after everyone had exited
the bus, he and Mr. Mercer turned around and saw Mr. Decuir coming toward them
and pointing a gun. Mr. Decuir fired a single shot and hit Mr. Mercer. Mr. Mercer
succumbed to his injuries three days later. 3
Mr. Decuir was arrested after he was identified from the bus security footage.
From jail, he called his girlfriend, Ashley Graves, and told her to remove various
items—“dogs,” a “Stephen Curry jersey,” and “toenail shells”—from his backyard.
Ms. Graves understood that these terms were code words for firearms and
ammunition. Mr. Decuir also told her to relay these instructions, along with the code
to his safe, to his friend, Waverly Schuler. Mr. Schuler subsequently hid the firearms
in the woods near Mr. Decuir’s house. Mr. Decuir also told Ms. Graves, over at least
four separate calls from jail, to instruct Mr. McCaskill to tell the “truth” and to “tell
him [not to] lie.” The truth, he told her, was that he had gotten off the bus to urinate
and then heard a shot and saw someone running. When Ms. Graves reported that
Mr. McCaskill had been confused by the “truth,” Mr. Decuir responded that he didn’t
want to get “no f*ing charge for obstruction of justice, you know what I’m saying?”
He conveyed the same sentiment on a subsequent three-way call between himself,
Mr. McCaskill, and Ms. Graves.
Mr. Decuir was charged with First Degree Murder While Armed
(Premeditated) Committed Against a Minor, in violation of D.C. Code §§ 22-2101,
-4502, -3611; three counts of Possession of a Firearm During a Crime of Violence
(“PFCV”), in violation of D.C. Code § 22-4504(b); one count of Attempt to Commit
Robbery While Armed Committed Against a Minor, in violation of D.C. Code
§§ 22-2801, -2802, -4502, -3611; one count of First Degree Murder While Armed - 4
Felony Murder Committed Against a Minor, in violation of D.C. Code §§ 22-2101,
-4502, -3611; one count of Unlawful Possession of a Firearm (Prior Conviction), in
violation of D.C. Code § 22-4503(a)(1); one count of Carrying a Pistol Without a
License (Outside Home or Place of Business), in violation of D.C. Code
§ 22-4504(a)(2); one count of Obstructing Justice (Due Administration of Justice),
in violation of D.C. Code § 22-722(a)(6); and one count of Tampering with Physical
Evidence, in violation of D.C. Code § 22-723.
The government tried Mr. Decuir three times. At the first trial, which took
place before the Honorable Hiram Puig-Lugo in early 2017, the government
proceeded on the theory that Mr. Decuir had shot Mr. Mercer as part of a botched
robbery, and it presented evidence that Mr. Decuir had targeted Mr. Mercer because
of his expensive belt. The jury found Mr. Decuir guilty on the charges of obstructing
justice, evidence tampering, felon-in-possession, and carrying a pistol without a
license, but acquitted him on the charges of first-degree murder, attempted robbery,
and the attendant PFCV charges. Despite extended deliberations, the jury was
unable to reach a verdict on the lesser-included offense of second-degree murder and
the associated PFCV charge, and the court declared a mistrial on those counts.
In early 2018, the government tried Mr. Decuir a second time on the second-
degree murder and PFCV charges, this time before the Honorable Craig Iscoe. The 5
government’s theory this time was that Mr. Decuir had been angry at Mr. Mercer for
something unspecified, or that he had wanted to take Mr. Mercer’s bag or belt. The
jury again could not agree on a verdict, and Judge Iscoe declared a mistrial.
After the second trial, the government moved to proceed to sentencing before
Judge Puig-Lugo on the counts on which Mr. Decuir had been convicted at the first
trial. Over Mr. Decuir’s objection, the trial court granted the motion. In August
2018, the court sentenced Mr. Decuir to an 8-year term of incarceration, a 3-year
term of supervised release, and a $100 payment to the Victim of Violent Crime
Compensation Fund on the felon-in-possession count, to run concurrently with a
28-month term of incarceration, a 3-year term of supervised release, and a $100
payment to the Victim of Violent Crime Compensation Fund on the count of
carrying a pistol without a license. The court also sentenced him to a consecutive
15-year term of incarceration, a 5-year term of supervised release, and a $100
payment to the Victim of Violent Crime Compensation Fund on the obstruction
count, to run concurrently with a 16-month term of incarceration, a 5-year term of
supervised release, and a $100 payment to the Victim of Violent Crime
Compensation Fund on the tampering count.
Mr. Decuir’s third and final trial for second-degree murder and the associated
PFCV charge happened in spring 2019 before Judge Iscoe. The government’s theory 6
at this trial was that Mr. Decuir had interpreted Mr. Ryans’s question, “[w]hy you
looking at that boy’s butt?” as implying that Mr. Decuir was attracted to Mr. Mercer.
In an effort to prove his heterosexuality, the prosecution argued, Mr. Decuir had shot
Mr. Mercer. Mr. Ryans’s testimony was critical to this new theory of the case, but
the government contended that he was unavailable and sought permission to
introduce his testimony from the second trial. Over Mr. Decuir’s objection, the trial
court found that Mr. Ryans was unavailable and admitted his earlier testimony.
The jury found Mr. Decuir guilty of second-degree murder and the associated
PFCV charge. In July 2019, the court sentenced Mr. Decuir to a 34-year term of
incarceration (with a 5-year mandatory minimum), a 5-year term of supervised
release, and a $100 payment to the Victim of Violent Crime Compensation Fund on
the second-degree murder count; and an 8-year term of incarceration (with a 5-year
mandatory minimum), a 3-year term of supervised release, and a $100 payment to
the Victim of Violent Crime Compensation Fund on the PFCV count. The court
ordered that the sentences of incarceration run concurrently with each other and
concurrently with Mr. Decuir’s sentences of incarceration on the earlier counts. This
appeal followed. 7
II. Discussion
Mr. Decuir raises several issues on appeal, challenging his obstruction
conviction; the trial court’s decision to proceed to sentencing on the initial counts of
conviction after the second trial; and several aspects of his third trial, including the
admission of Mr. Ryans’s testimony from the second trial. Taking these in reverse
order, we agree that the trial court erred in finding Mr. Ryans unavailable and
allowing his previous testimony to come in as evidence during the third trial, and we
thus reverse and remand for further proceedings on the second-degree murder and
associated PFCV count. But we discern no abuse of discretion in the trial court’s
decision to proceed to sentencing after the second trial and no defect in Mr. Decuir’s
obstruction conviction, and we therefore do not disturb his remaining convictions
and sentence.
A. Admission of Anthony Ryans’s Prior Testimony
We begin our review with Mr. Decuir’s argument that the trial court erred in
finding that Mr. Ryans was unavailable to testify at the third trial and by admitting
his testimony from Mr. Decuir’s second trial. We agree that the testimony was 8
incorrectly admitted and that the error was not harmless. Accordingly, we reverse
and remand for further proceedings on the second-degree murder and PFCV counts. 1
1. The government’s efforts to locate Mr. Ryans
A week before the third trial was set to begin, the government requested a
continuance because, in part, it needed more time to secure witnesses who had been
difficult to reach during the first two trials, including witnesses who no longer lived
in the area. Defense counsel opposed a continuance, noting that the prosecution had
had over a year since the second trial to locate and contact witnesses. The court
pushed the trial date back one week.
Three days before the new trial date, the government filed a motion to admit
the transcript of Mr. Ryans’s testimony from Mr. Decuir’s second trial, asserting that
Mr. Ryans was unavailable to testify at the third trial despite the government’s
attempts to locate him. The government explained that, during the first trial, Mr.
Ryans had been detained in Virginia, so he was able to appear at the trial on a day
writ. Before the second trial, the government learned that Mr. Ryans had an open
1 Because we are reversing the verdict in the third trial, we need not address Mr. Decuir’s other challenges to how that trial was conducted, including his arguments that (1) voir dire was improperly conducted; (2) a detective’s testimony regarding knowledge of self-defense law was incorrectly excluded; and (3) the government’s opening statement from the first trial concerning Mercer’s possession of a shotgun was incorrectly excluded. 9
warrant and enlisted the U.S. Marshals Service to locate him. He was found in South
Carolina, brought back to Virginia, and again appeared on a day writ. By the time
of the third trial, Mr. Ryans was out on probation, but he had failed to report his
location to his probation officer as required, hindering the government’s efforts to
locate him. The government had contacted the prosecutor and defense counsel in
Mr. Ryans’s probation case, but neither had his current address. The government
also reported that it had run Mr. Ryans’s name through various government
databases and contacted individuals affiliated with him, including Stephanie Parrish,
the mother of his children; and Lesley Lyttle, a woman with whom he had previously
lived and worked, but to no avail.
Defense counsel opposed the motion, arguing that the government had not
made sufficient efforts to locate Mr. Ryans. Specifically, the government had not
explained when it had started looking for Mr. Ryans or whether the U.S. Marshals
Service had visited any of his known addresses in an attempt to find him instead of
merely placing phone calls.
The trial court expressed its inclination to grant the government’s motion and
declare Mr. Ryans unavailable if continued efforts to locate him proved fruitless.
The court explained that it was satisfied with the government’s efforts so far, and it
issued a material-witness warrant to aid the government in finding him. 10
When the court and the parties returned to the issue several days later—after
the third trial had begun—defense counsel requested that the government present live
testimony concerning its efforts to locate Mr. Ryans rather than proceeding on a
proffer. The affidavits submitted in response indicated that the government had not
begun looking for Mr. Ryans until seven days before trial, and it had not retained the
U.S. Marshals Service to look for him until after the day trial began, which was after
the judge had ordered the government to continue looking for him. After the trial
began, the Deputy United States Marshal assigned to handle the material-witness
warrant conducted daily online searches, spoke with police officers in South
Carolina who had had previous interactions with Mr. Ryans, spoke with other
Deputy Marshals who had previously arrested Mr. Ryans, and attempted to make
contact with several people whom he believed had information concerning Mr.
Ryans’s whereabouts.
After receiving the affidavits, the trial court held a hearing and determined
that Mr. Ryans was unavailable. The court noted that Mr. Ryans was “plainly hiding
from law enforcement for reasons independent of this trial.” Despite the court’s
concern that the government had not made serious efforts to find Mr. Ryans until
after trial had begun, the court found no indication that “earlier efforts would likely
have been more successful.” Subsequently, at the relevant point in the trial, the court 11
played the audio and admitted the transcript of Mr. Ryans’s testimony from the
previous trial.
2. Legal analysis
The Sixth Amendment’s Confrontation Clause guarantees a criminal
defendant the right to confront the witnesses against him. U.S. Const. amend. VI.
The Confrontation Clause prohibits the introduction of prior testimonial statements
against a defendant unless “the defendant has had (or has forfeited) the opportunity
to be confronted with the witness who made the statement, and [] the witness is
unavailable to testify at trial.” Brooks v. United States, 39 A.3d 873, 882 (D.C.
2012). If the government wants to admit prior recorded testimony, it must be able
to demonstrate that the declarant is unavailable to testify at trial; that the testimony
was given under oath at a prior legal proceeding; that the issues in both proceedings
are essentially the same; and that the defense had the opportunity to cross-examine
the declarant at the prior proceeding. Id. “Thus, as a matter of constitutional and
evidentiary law, ‘unavailability’ of the witness is ‘a necessary precondition’ to the
introduction of prior testimony.” Id. (quoting United States v. Lynch, 499 F.2d 1011,
1023 (D.C. Cir. 1974)).
We review the trial court’s determination that Mr. Ryans was unavailable—
and its subsequent admission of his prior testimony—for abuse of discretion. 12
Williams v. United States, 881 A.2d 557, 564 (D.C. 2005). As the party seeking to
introduce Mr. Ryans’s previous testimony, the government bears the burden of
establishing that he was unavailable to testify at the third trial. Brooks, 39 A.3d at
883. That burden is “substantial.” Stack v. United States, 519 A.2d 147, 156 (D.C.
1986). To establish unavailability, the government must make a “‘reasonable, good
faith effort’ to secure the witness’s presence at trial.” Brooks, 39 A.3d at 883
(quoting Williams, 881 A.2d at 564). Whether the government has made a
“reasonable” effort is determined on a “context-and fact-specific” basis. Id. In the
case where the government is seeking to admit testimony from a previous trial, it
must be able to show that it conducted a “search equally as vigorous as that which
the government would undertake to find a critical witness if it has no [prior]
testimony to rely upon in the event of ‘unavailability.’” Id. (alteration in original)
(quoting Lynch, 499 F.2d at 1023).
In conducting the above inquiry, we must consider the importance of the
witness who is purportedly “unavailable.” See United States v. Foster, 986 F.2d
541, 543 (D.C. Cir. 1993) (“The more important the witness to the government’s
case, the more important the defendant’s right . . . .”); Lynch, 499 F.2d at 1022-23
(noting that “policies underlying the general prohibition of hearsay” are “especially
cogent when the testimony of a witness is critical to the prosecution’s case against
the defendant”). Mr. Ryans was undoubtedly a critical government witness. He is 13
Mr. Decuir’s cousin and friend, was present on the night in question, and was called
to testify in the first two trials. His testimony was even more important at the third
trial considering the government’s new theory that Mr. Decuir shot Mr. Mercer to
defend his sexuality after Mr. Ryans had asked him “[w]hy are you looking at that
boy’s butt?” In this vein, the government expressed concern about starting the trial
without knowing whether it would have Mr. Ryans’s testimony. Additionally, as a
witness in the second trial, Mr. Ryans cried on at least one occasion—demeanor a
jury certainly would need to consider. Brooks, 39 A.3d at 884-85 (“It is axiomatic
that ‘[d]emeanor is of the utmost importance in the determination of credibility of a
witness.’” (alteration in original) (quoting Gov’t of the V.I. v. Aquino, 378 F.2d 540,
548 (3d Cir. 1967))); In re Temple, 629 A.2d 1203, 1208-09 (D.C. 1993) (“The
factfinder who hears the evidence and sees the witnesses is in a better position to
make [credibility] determinations, having the benefit of those critical first-hand
observations of the witness[es]’ demeanor or manner of testifying which are so
important to assessing credibility.”). Mr. Ryans’s testimony was unquestionably
central to the government’s case, and he had proven in earlier trials to be a witness
whose demeanor was of potential importance.
We must also consider the seriousness of the crimes and the severity of the
punishment, because that heightens the bar for “deciding whether the government’s
efforts were sufficient.” Brooks, 39 A.3d at 884. While “[t]here is no ‘bright line’ 14
rule” that a witness cannot be deemed unavailable in a murder trial, the “seriousness
of the charged crime” is a substantial consideration in assessing the prosecution’s
efforts to locate a witness. Id. (citing United States v. Pizarro, 717 F.2d 336, 351
(7th Cir. 1983)). Mr. Decuir was found guilty of second-degree murder (as well as
a related weapons offense) based on the testimony of a missing witness, and he
received a combined 42-year term of incarceration for these two offenses. Where,
as here, “the consequences of a conviction based on the absent witness’[s] testimony
are grave,” we must be especially mindful of Confrontation Clause concerns. Id.
(quoting McCandless v. Vaughn, 172 F.3d 255, 266 (3d Cir. 1999)).
Applying the above principles, we conclude that the government failed to
meet its substantial burden to conduct a “search equally as vigorous” as it would
have in the absence of prior testimony. Id. at 883 (emphasis omitted) (quoting
Lynch, 499 F.2d at 1023). Because this case involved multiple trials, we can
compare the government’s efforts to locate Mr. Ryans for the third trial against its
(successful) efforts in the earlier trials. Before the second trial, the government
enlisted the U.S. Marshals Service in searching for Mr. Ryans after discovering an
open warrant in Virginia. He was found in South Carolina, arrested, and brought to
Virginia, where he was able to testify at trial on a day writ. Based on its efforts to
locate him for the second trial, the government was on notice that Mr. Ryans was a
reluctant witness and that it might need the U.S. Marshals Service to retrieve him 15
for the third trial. Yet the government did not begin looking for Mr. Ryans until
seven days before the third trial began, and it did not involve the U.S. Marshals
Service until after the first day of trial. Additionally, although the government knew
that Mr. Ryans had ties to South Carolina based on its efforts to locate him during
the second trial, it did not look for him there before moving to have his previous trial
testimony admitted. And while the government deserves some credit for trying to
find Mr. Ryans after the third trial began, see supra at 9-10, these efforts were largely
undertaken after the court ordered the government to keep looking for him, and they
do not excuse a lack of “good-faith efforts undertaken prior to trial.” Ohio v.
Roberts, 448 U.S. 56, 74 (1980), abrogated on other grounds by Crawford v.
Washington, 541 U.S. 36 (2004). Considering the centrality of Mr. Ryans’s
testimony to the government’s case and the weight of the charges, the government’s
efforts to locate Mr. Ryans for the third trial fell short of what was required for the
trial court to deem him unavailable, and the court acted outside the scope of its
discretion in concluding otherwise.
3. Harmless error review
Given our conclusion that the trial court abused its discretion by admitting
Mr. Ryans’s prior testimony, we must reverse unless the government can show that
the error was “harmless beyond a reasonable doubt.” Chapman v. California, 386
U.S. 18, 24 (1967); see Wynn v. United States, 241 A.3d 277, 283 (D.C. 2020) 16
(“[W]e must determine whether there is a reasonable possibility that the error might
have contributed to the conviction.” (internal quotation marks omitted)). When
faced with erroneously admitted testimony, “we will reverse where we find a
reasonable possibility that the statement contributed to the defendant’s conviction.”
Brooks, 29 A.3d at 889 (quoting Callaham v. United States, 937 A.2d 141, 147 (D.C.
2007)).
We conclude that the error was not harmless. The verdict on the second-
degree murder charge was clearly a difficult one to reach, as evidenced by the fact
that two juries had previously failed to come to a decision. At the third trial, the
government proceeded on the theory that Mr. Decuir had shot Mr. Mercer in
response to Mr. Ryans’s insinuation that Mr. Decuir was interested in the young
man. The government’s new theory made Mr. Ryans’s account of the events—and
the jury’s impression of him—critical. Given the centrality of Mr. Ryans’s
testimony to the government’s case, the government cannot prove beyond a
reasonable doubt that the Confrontation Clause error did not contribute to Mr.
Decuir’s convictions. We thus reverse and remand for further proceedings on the
second-degree murder charge and the related PFCV count. 17
B. Obstruction of Justice
We next turn to Mr. Decuir’s challenge to his conviction for obstruction of
justice. Under D.C. Code § 22-722(a)(6), “[a] person commits the offense of
obstruction of justice if that person . . . [c]orruptly, or by threats of force, any way
obstructs or impedes or endeavors to obstruct or impede the due administration of
justice in any official proceeding.” The term “corruptly” indicates an “intent to
undermine the integrity of [a] pending investigation.” Smith v. United States, 68
A.3d 729, 742 (D.C. 2013); see Hawkins v. United States, 119 A.3d 687, 701 (D.C.
2015) (discussing that several federal appellate courts define “corruptly” as “act[ing]
‘knowingly and dishonestly, with the specific intent to subvert or undermine the due
administration of justice’” (first citing United States v. Kay, 513 F.3d 432, 454 (5th
Cir. 2007); and then citing United States v. Gordon, 710 F.3d 1124, 1151 (10th Cir.
2013))). An “official proceeding” is defined in Section 22-721(4) as “any trial,
hearing, investigation, or other proceeding in a court of the District of Columbia or
conducted by the Council of the District of Columbia or an agency or department of
the District of Columbia government, or a grand jury proceeding.”
The government charged Mr. Decuir with obstruction of justice on the basis
that he called his girlfriend, Ms. Graves, from jail and, using coded language, told
her to tell Mr. Schuler to move his firearms to prevent law enforcement from finding
them. At trial, the jury was instructed that the elements of the obstruction offense 18
were “1. [Mr.] Decuir endeavored to obstruct or impede the due administration of a
pending criminal case in the Superior Court of the District of Columbia; and 2. [Mr.]
Decuir did so with the intent to undermine the integrity of the pending criminal
case.” Mr. Decuir argues on appeal that this conviction cannot stand because
Section 22-722(a)(6) does not apply to the concealment of physical evidence.
Although this question has previously come before this court, we have not yet
needed to address it. See Wynn v. United States, 48 A.3d 181, 191 n.15 (D.C. 2012).
We similarly need not address it here. That is because, even if we were to adopt Mr.
Decuir’s contention that Section 22-722(a)(6) applies only in “situations where
defendants have corruptly or violently influenced people,” that is exactly what
happened here. The evidence showed that Mr. Decuir corruptly—that is, with the
“intent to undermine the integrity of [a] pending investigation,” Smith, 68 A.3d at
742—communicated with another person to prevent law enforcement from locating
firearms during their investigation of Mr. Malek’s murder. Specifically, he
“influenced” one person, Ms. Graves, to tell another person, Mr. Schuler, to take
steps to impede the police’s investigation and pending criminal charges against him.
And he did so with the requisite corrupt intent. All of the actions leading to his
obstruction conviction involved communications with other people, and there is no
limitation—under either the government’s or Mr. Decuir’s interpretations—that
these obstructive communications cannot somehow concern physical evidence. 19
Accordingly, we conclude that Mr. Decuir’s conduct came within the meaning of
the statute and uphold the obstruction of justice conviction.
C. Sentencing
Finally, we turn to Mr. Decuir’s challenge to the trial court’s decision to
proceed to sentencing for his convictions from the first trial before the third trial, in
which he was being retried for second-degree murder and PFCV, had concluded.
After the first trial in March 2017, the jury found Mr. Decuir guilty of obstruction of
justice, tampering with evidence, felon-in-possession of a firearm, and carrying a
pistol without a license. In April 2018, after the second trial had resulted in a mistrial
on the second-degree murder and PFCV charges, the government requested that
Judge Puig-Lugo proceed to sentencing on the convictions from the first trial. It
argued that due to the “length of time that [had] already elapsed, the length of time
that [would] elapse (given that the third trial [would] take place sometime in 2019),
and the fact that a judge other than Judge Puig-Lugo [would] be presiding over the
third trial,” the “interests of justice” would be “best served” by proceeding to
sentencing.
Defense counsel opposed the motion, arguing that the convictions at issue and
the pending murder charge were “all wrapped up together,” and thus proceeding to
sentencing before the third trial would hinder Mr. Decuir’s ability to fully allocute 20
at sentencing because he would need to “choose between being forthcoming at a
separate sentencing for the gun and obstructionist conduct or standing mute out of a
fear that something he might say to the PSR writer or the court could be used against
him at the retrial.” The court granted the government’s motion over the defense’s
objection. On the advice of counsel, Mr. Decuir did not participate at the sentencing.
Mr. Decuir argues that the court abused its discretion when it granted the
government’s motion to proceed to sentencing. He alleges that his Fifth Amendment
privilege against self-incrimination was pitted against his right to be heard at his
sentencing hearing. We disagree.
A criminal defendant “has a right to allocute in an effort to mitigate his
punishment.” Warrick v. United States, 551 A.2d 1332, 1335 (D.C. 1988) (first
citing D.C. Code § 23-103 (1981); and then citing Super. Ct. Crim. R. 32(c)(1)).
While our court’s jurisprudence on allocution is scant, there is a substantial body of
federal case law clarifying that sentencing judges have vast discretion on questions
of allocution. United States v. Ward, 732 F.3d 175, 182 (3d Cir. 2013) (“The
sentencing judge has always retained the discretion to place certain restrictions on
what may be presented during an allocution.”); United States v. Mack, 200 F.3d 653,
658 (9th Cir. 2000) (“[A]lthough [defendants have] a right of allocution at
sentencing, that right is not unlimited.”); United States v. Li, 115 F.3d 125, 133 (2d 21
Cir. 1997) (“[A] defendant’s right to allocution is not unlimited in terms of either
time or content.”). So long as the court provides a defendant with the opportunity
to speak on his behalf at sentencing, the defendant has been properly afforded the
chance to allocute. United States v. Alsante, 812 F.3d 544, 548 (6th Cir. 2016)
(holding that the sentencing hearing was “fundamentally fair” even though the
defendant declined the court’s invitation to “make a statement in allocution”); Ward,
732 F.3d at 182 (discerning no error where the judge “personally address[ed] the
defendant and offer[ed] him the opportunity to address the court before the sentence
[was] pronounced”); United States v. De La Paz, 698 F.2d 695, 697 (5th Cir. 1983)
(per curiam) (similar).
There are also several federal cases rejecting arguments similar to Mr.
Decuir’s claim that the pending criminal charges created an impermissible conflict
between the right of allocution and the right to avoid self-incrimination. See, e.g.,
Alsante, 812 F.3d at 548 (rejecting the argument that the defendant’s Fifth
Amendment rights were violated where he could not fully allocute without
discussing a pending case); United States v. Smith, 705 F.3d 1268, 1274 (10th Cir.
2013) (“Like any other defendant, [appellant] had the choice to either exercise his
Fifth Amendment right to remain silent at the sentencing hearing or to risk
incriminating himself with respect to . . . unresolved criminal charges.”); De La Paz,
698 F.2d at 697 (explaining that the sentencing judge “has not deprived a defendant 22
of his right of allocution when it keeps him from incriminating himself at the
sentencing”). We are persuaded by these cases and discern no reason to reach a
different conclusion under the District’s allocution statute.
We thus conclude that the trial court did not abuse its discretion in granting
the government’s motion to proceed to sentencing or in conducting the sentencing
hearing. The court provided Mr. Decuir the opportunity to speak, and he declined.
The choice between contesting the government’s evidence at the sentencing hearing
and risking self-incrimination is the same dilemma that many defendants face at
various points in a criminal prosecution where they have the opportunity to speak.
See Alsante, 812 F.3d at 548 (“[Defendant] no doubt felt pressure to rebut the
government’s evidence so that he could reduce his sentence. That is the same
pressure, however, felt by every defendant who must decide whether to testify or
remain silent.”); see also Harvey v. Shillinger, 76 F.3d 1528, 1534-37 (10th Cir.
1996) (explaining that there was no error where the defendant had to choose between
testifying at a federal sentencing or remaining silent due to pending state charges).
Accordingly, we find no basis to hold that the trial court erred when it granted the
government’s motion to proceed to sentencing. 23
III. Conclusion
For the foregoing reasons, we reverse Mr. Decuir’s convictions for second-
degree murder and the related PFCV charge and remand for further proceedings.
We affirm Mr. Decuir’s remaining convictions.
So ordered.