Criminal Law Blog

Ask for sanctions! Convictions affirmed, despite lost and excluded third-party perpetrator evidence.

 

Ashby, Logan, & Watson v. United States (decided January 10, 2019)

Players: Chief Judge Blackburne-Rigsby, Associate Judge Fisher, and Senior Judge Nebeker. Opinion by Senior Judge Nebeker. PDS for Mr. Ashby. Thomas T. Heslep for Mr. Logan. Margaret M. Cassidy for Mr. Watson. Trial Judge: Herbert B. Dixon.

Facts: Ashby, Logan, and Watson were convicted of multiple offenses in connection with the kidnapping and murder of Carnell Bolden and the shooting of his girlfriend, Danielle Daniels. Around 7 p.m. on December 30, 2009, Daniels dropped Bolden off on W Street N.W. and waited for him to return. When he did not return as expected, Daniels sought him out unsuccessfully. Eventually, someone opened fire on the car, wounding her. The next morning, police found Bolden bound and deceased, having suffered two gunshot wounds to the face.

On January 1, 2010, police went to 70 W Street, N.W. looking for Bolden’s associate Derrick Hill. Logan and his girlfriend occupied and sold heroin from the the top two floors of the house. Hill sold Bolden’s drugs out of the basement, which he rented until November 2009, when he surrendered his keys to everything but the basement. Nevertheless, Logan and his girlfriend told police that Hill lived there and offered to let them look around the basement, which contained Hill’s belongings. Police returned later with a search warrant and documented that the television was missing a cord like one used to bind Bolden.

On January 4, 2010, Hill accompanied police to 70 W Street but could not open the door, which was latched from the inside. On January 11, he told them he had entered and found one of his jackets covered in blood (later determined to be Bolden’s). When they arrived, Hill gave written consent to search the basement again. This time, they found blood stains and duct tape consistent with that used to bind Bolden.

The same day, police arrested Ashby on an unrelated charge, seized his phone, and placed calls with it to learn his phone number. Police later obtained a warrant for the phone’s contents, including its number and call logs, which showed calls to and from Logan and Watson on the night of the murder. Finally, police used Ashby’s number to obtain a warrant for his cell site location information, which placed him near W Street and where police found Bolden’s body.

At trial, the government relied on the aforementioned evidence, Ashby and Watson’s connection to Logan and the W Street house, and the recovery of Bolden’s blood from a nearby car. In addition, Bolden’s acquaintances implicated the defendants. John Carrington testified that Logan had proposed killing Bolden weeks before his murder. Melvin Thomas, who knew both Logan and Bolden through heroin trade, claimed that Ashby had admitted all three defendants’ guilt.

The defendants sought, but were not permitted, to cross-examine Thomas about his motive to kill Bolden and fabricate Ashby’s confessions in light of Thomas’s own alleged drug distribution. Ashby proffered that Thomas and Bolden had competing operations and pointed to ongoing criminal investigations into Thomas’s alleged operation as evidence of his motive to help the government. The trial court barred the proposed cross-examination, ruling that the proffer was insufficient to link Thomas to Bolden’s murder for purposes of a third-party perpetrator defense or to suggest motive to lie.

Holdings:
1.In light of the remedies and sanctions granted, the trial court did not abuse its discretion in denying a missing evidence instruction based on the failure to preserve evidence that someone else used Bolden’s credit cards after his death.

2. Hill had authority to consent to search of the basement apartment.

3. Ashby’s call logs and cellsite location information were not fruits of an illegal search of his phone. The phone information used to obtain warrants for the logs and location information was printed on the “interior hardware” of the phone itself, which police may still access incident to arrest without a warrant after Riley v. California, 134 S. Ct. 2473 (2014).

4. The trial court did not err in (a) admitting Ashby’s alleged statements to Thomas as statements against penal interest, (b) admitting Logan’s alleged statements to Carrington under the state-of-mind exception, or (c) denying severance based on the admission of those statements.

5. Ashby’s proffer was insufficient to allow him to present a third-party perpetrator defense based on Thomas’s competing drug operation. 

6. The trial court did not err in precluding bias cross-examination about Thomas’s involvement in Mr. Bolden’s murder and other serious crimes being investigated at the time of trial. Even if it did, any error was harmless.

7. The evidence that Logan shot Ms. Daniels was sufficient to sustain his assault conviction.

8. The trial court did not err in instructing on the Pinkerton theory of liability.

9. Logan’s PFCV conviction must be vacated because the jury did not announce it in open court.


Of Note: 
The Court’s opinion underscores the need to seek an array of remedies and sanctions for Brady and Rule 16 violations, including discovery. Here, even after it was clear that the government had lost evidence related to a potential alternate suspect, the government withheld investigative notes related to that missing evidence. The Court holds that the trial court had discretion to deny a more drastic sanction because it correctly ordered the disclosure of those notes, which enabled the defense to attack the integrity of the “investigatory process and conclusions.” Slip Op. at 18.

- The Court does not resolve Ashby’s claim that the police violated Riley by using his phone to make phone calls in an attempt to learn his phone number because it determines that this information bore no “fruit” in the investigation. Slip Op. at 32 (deeming the question “immaterial”).  Given the unsettled nature of this area of law, advocates should continue to argue that “manipulations” of a phone used to generate evidence require a warrant under Riley. WC.

Read the full opinion here.