06-CF-1313

In The

District of Columbia Court of Appeals
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THOMAS GREEN, Appellant, v. UNITED STATES, Appellee.
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On Appeal from the Superior Court of the District of Columbia — Criminal Division
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BRIEF FOR APPELLANT
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James Mangiafico* Mary Kennedy ARNOLD & PORTER LLP 555 12th Street NW Washington, DC 20004 (202) 942-5952 * Counsel for Oral Argument

DISCLOSURE STATEMENT Mr. Green was represented in the trial court by James Mangiafico and Mary Kennedy of Arnold & Porter LLP. The United States was represented by Assistant United States Attorney Zulima Espinel and at sentencing by Assistant United States Attorney Patrick B. Costello. Mr. Green is represented on appeal by James Mangiafico and Mary Kennedy.

TABLE OF CONTENTS Disclosure Statement.......................................................................................................................2 Table of Contents..............................................................................................................................i Table of Authorities.........................................................................................................................ii Issues Presented...............................................................................................................................1 Statement of the Case.......................................................................................................................2 Statement of Facts............................................................................................................................4 .I The Testimony of Officer Weinfeld..............................................................................4 .II The Testimony of Kevin Price.....................................................................................5 .III The Testimony of Thomas Green...............................................................................6 .IV The Trial Court’s Findings of Fact.............................................................................7 Argument........................................................................................................................................11 .I The Stop of Mr. Green was Conducted in Violation of His Fourth Amendment Rights ................................................................................................................................11 .A The trial court’s finding that Mr. Green attempted to flee before he was seized was clearly erroneous.........................................................................................11 .B An anonymous tip combined with a common gesture to the waist are not sufficient to establish reasonable suspicion.......................................................13 .II Mr. Green’s Statement Made Prior to Arrest was Elicited in Violation of His Fifth Amendment Rights................................................................................................17 .A Mr. Green’s statement was involuntary.................................................................17 .B Mr. Green’s statement prior to arrest was elicited in violation of his Miranda rights..................................................................................................................19 .III The Trial Court Misconstrued the Youth Act and Other Sentencing Provisions to Find that Mr. Green was Subject to a Statutory Minimum Sentence. ...................24 .A The plain meaning of the Youth Act and related sentencing statutes permits youth offenders to be sentenced below otherwise applicable mandatory minimums.. 24 .B The legislative history reveals that the Youth Act was intended to abrogate mandatory minimum sentences for youth offenders and that no subsequent law was intended to reinstitute them........................................................................27 .C The rule of lenity requires that youth offenders not be subject to mandatory minimums, except as specifically provided.......................................................30 Conclusion.....................................................................................................................................30 Addendum of Statutory Provisions Involved.................................................................................32

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TABLE OF AUTHORITIES Cases Arizona v. Evans, 514 U.S. 1 (1995)............................................................................15 Blackburn v. Alabama, 361 U.S. 199 (1960)...............................................................17 Castellon v. United States, 864 A.2d 141 (D.C. 2004)................................................17 Colorado v. Connelly, 479 U.S. 157 (1986)................................................................19 Crook v. United States, 771 A.2d 355 (D.C. 2001)......................................................22 Davis v. North Carolina, 384 U.S. 737 (1966)............................................................17 District of Columbia v. Morrissey, 668 A.2d 792 (D.C. 1995)....................................24 Dyson v. United States, 815 A.2d 363 (D.C. 2003).....................................................22 Edwards v. United States, 619 A.2d 33 (D.C. 1993)....................................................22 Florida v. J.L., 529 U.S. 266 (2000)..........................................................13, 14, 15, 16 Haley v. Ohio, 332 U.S. 596 (1948).............................................................................18 Henson v. United States, 399 A.2d 16, (D.C. 1979)....................................................31 Hill v. United States, 858 A.2d 435 (D.C. 2004).........................................................17 In re I.J., 906 A.2d 249 (D.C. 2006)......................................................................19, 23 Jackson v. Denno, 378 U.S. 368 (1964).......................................................................19 Jefferson v. United States, 776 A.2d 576 (D.C. 2001).................................................16 Lego v. Twomey, 404 U.S. 477 (1972).........................................................................19 McFerguson v. United States, 770 A.2d 66 (D.C. 2001).............................................14 Miranda v. Arizona, 384 U.S. 436 (1966)....................................................................19 Morris v. United States, 728 A.2d 1210 (D.C. 1999)...................................................11 Patton v. United States, 633 A.2d 800 (D.C. 1993).....................................................15 Quarles v. New York, 467 U.S. 649 (1984)............................................................21, 22 ii

Rewis v. United States, 401 U.S. 808 (1971)...............................................................31 Sanders v. United States, 751 A.2d 952 (D.C. 2000)...................................................16 Terry v. Ohio, 392 U.S. 1 (1968)..................................................................................15 Trice v. United States, 662 A.2d 891 (D.C. 1995).......................................................22 Trice v. United States, 849 A.2d 1002 (D.C. 2004).....................................................15 U. S. Parole Comm’n v. Noble, 693 A.2d 1084 (D.C. 1997).......................................27 United States v. Bogle, 114 F.3d 1271 (D.C. Cir. 1997)..............................................20 United States v. Braithwaite, 458 F.3d 376 (5th Cir. 2006).........................................23 United States v. Fleck, 413 F.3d 883 (8th Cir 2005)....................................................21 United States v. Henderson, 520 F.2d 896 (2d Cir. 1975)............................................18 United States v. Holmes, 360 F.3d 1339 (D.C. 2004)..................................................16 United States v. Jackson, 918 F.2d 236 (1st Cir. 1990)................................................18 United States v. Mendenhall, 446 U.S. 544 (1980)......................................................15 United States v. Patane, 542 U.S. 630 (2004).............................................................19 United States v. Perdue, 8 F.3d 1455 (10th Cir. 1993).....................................17, 18, 19 United States v. Raborn, 872 F.2d 589 (5th Cir. 1989)................................................23 United States v. Turner, 761 A.2d 845 (D.C. 2000).........................................15, 17, 19 United States v. Williams, 483 F.3d 425 (6th Cir. 2007).........................23 Watts v. Hadden, 651 F.2d 1354 (10th Cir. 1981)........................................................28

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Statutes Balanced Budget Act of 1997, Pub. L. No. 105-33, 111 Stat. 251..............................28 D.C. Code § 22-4502(a)...............................................................................................24 D.C. Code § 22-4502(e)(1)....................................................................................26, 27 D.C. Code § 22-4504(b)...............................................................................................24 D.C. Code § 24-403.01(c)......................................................................................26, 27 D.C. Code § 24-901(6).................................................................................................25 D.C. Code § 24-903...............................................................................................24, 25 District of Columbia Court Reform and Criminal Procedure Act of 1970, Pub. L. No. 91-358, 84 Stat. 473...................................................................................30 Sentencing Reform Amendment Act of 2000, D.C. Law 13-302, 47 D.C. Reg. 7249 ...........................................................................................................................29, 30 Technical Amendments Act of 2000, D.C. Law 13-313, 48 D.C. Reg. 1873........27, 30 Truth in Sentencing Amendment Act of 1998, D.C. Law 12-165, 45 D.C. Reg. 2980.......................................................................................26, 28, 29 Youth Rehabilitation Amendment Act of 1985, D.C. Law 6-69, 32 D.C. Reg. 4587..30 Other Authorities Report on Bill 12-523, Truth in Sentencing Amendment Act of 1998, Council of the District of Columbia, Committee on the Judiciary, February 25, 1998...................29 Report on Bill 13-696, Sentencing Reform Amendment Act of 2000, Council of the District of Columbia, Committee on the Judiciary, May 25, 2000..........................28 Report on Bill 6-47, Youth Rehabilitation Act of 1985, Council of the District of Columbia, Committee on the Judiciary, June 19, 1985...........................................28 Wayne LaFave, Search and Seizure (4th ed. 2004)..................................15 Wayne LaFavre et al., Criminal Procedure (2d ed. 1999).............................21

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ISSUES PRESENTED I. Whether the seizure of Mr. Green violated the Fourth Amendment where the police drew their weapons and forced Mr. Green to the ground after having received an anonymous tip for someone carrying a gun matching Mr. Green’s description and after having observed Mr. Green gesture toward his waist with his hand. II.Whether Mr. Green’s statement prior to his arrest was procured in violation of the Fifth Amendment and Miranda where the police forced Mr. Green to lie face-down on the ground, asked him repeatedly to reveal the location of a gun, and did not advise him of his constitutional rights. III.Whether a judge has discretion under D.C. Code § 24-903 to sentence a youth offender to a term of incarceration shorter than the generally applicable minimum sentence (except as provided in D.C. Code § 22-4502(e)).

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STATEMENT OF THE CASE Thomas Green was indicted on six counts for offenses related to the possession of narcotics and a handgun (R. 2).1 On May 5, 2006, Mr. Green filed a Motion to Suppress Tangible Evidence and Statements on the grounds that he was seized in violation of the Fourth Amendment and his statements were taken in violation of the Fifth Amendment (R. 7). The United States filed an Opposition on May 29, 2006. A hearing was held on June 1, 2006, at which the United States produced two witnesses and Mr. Green and one other witness testified for the defense.2 The day before the court was scheduled to rule on Mr. Green’s motion, the United States filed a Supplemental Opposition. On the following day Mr. Green filed a Reply. The trial court denied Mr. Green’s Motion to Suppress on June 9, 2006 (Tr. II at 21; App. at 12a). On June 12, 2006, with the consent of the United States, Mr. Green entered a conditional plea of guilty, pursuant to D.C. Super. Ct. R. 11, expressly reserving his right to appeal the denial of his Motion to Suppress. Defense counsel submitted a letter to the court, requesting a sentence of probation for Mr. Green. The court then requested briefing on the issue of whether it had authority to sentence Mr. Green to probation pursuant to 24 D.C. Code § 903 (the “Youth Act”), given that he had then been convicted of offenses that carry mandatory minimum sentences of incarceration for offenders not eligible for sentencing under the Youth Act. On August 22, 2006, Mr. Green submitted a Memorandum of Points and Authorities in support of the trial court’s authority to sentence him to probation pursuant to the Youth Act. On September 14, 2006, the United States
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One count of Unlawful Possession with Intent to Distribute a Controlled Substance (cocaine) in a Drug Free Zone While Armed, in violation of 48 D.C. Code, §§ 904.0l(a)(l), 904.07a, 22-4502, one count of Unlawful Possession of a Controlled Substance (marijuana), in violation of 48 D.C. Code, § 904.01(d), one count of Possession of a Firearm During Crime of Violence or Dangerous Offense, in violation of 22 D.C. Code, § 4504(b), one count of Carrying a Pistol Without a License, in violation of 22 D.C. Code, § 4504(a), one count of Possession of Unregistered Firearm, in violation of 7 D.C. Code, § 2502.01, and one count of Unlawful Possession of Ammunition, in violation of 7 D.C. Code, § 2506.01(3). 2 See Transcript, June 1, 2006, which includes the motions hearing (hereinafter abbreviated as Tr.). References to Tr. II are to the transcript of June 9, 2006, which includes the court’s ruling on the motion to suppress and a preliminary discussion of sentencing. References to Tr. III are to the transcript of September 20, 2006, which includes sentencing. 2

filed an Opposition. On September 20, 2006, the trial court “impose[d] the mandatory minimum sentence” (Tr. III at 11; App. at 16a) and sentenced Mr. Green, under the Youth Act,3 to a “mandatory minimum term of 5 years” (R. 19). On October 19, 2006, Mr. Green filed a timely Notice of Appeal (R. 22).

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See R. 0 at 18 (“The sentence is under Title 24, Section 903(B) Y.R.A.”). 3

STATEMENT OF FACTS At the hearing on Mr. Green’s Motion to Suppress, the United States offered one witness who testified to events related to this appeal.4 Despite the fact that the arresting officer was present and available to testify, the United States offered only his partner, Officer Savyon Weinfeld, to testify about the events surrounding the stop and arrest of Mr. Green. The defense offered the testimony of Mr. Green and of his companion: Kevin Price. .I The Testimony of Officer Weinfeld Officer Weinfeld testified that at approximately 4:45 pm on March 8, 2006, he and his partner Office Gaumond received a radio run for a man with a gun: “a tall, dark skinned black male wearing a white and black t-shirt with a snowman printed on the front and blue jeans” and “standing next to a blue van in front of 1435 G Street, Northeast” (Tr. at 6). The dispatcher’s notes specified a man with a gun in his waistband (Tr. at 7). The officers then responded to the given address and arrived in “less than a minute” (Tr. at 6, 32). When they arrived, Officer Weinfeld saw a man matching the given description, a man he identified as Mr. Green, exiting a blue conversion van parked in front of the given address (Tr. at 6). Officer Weinfeld testified that the man took notice of the officers and then “placed his hand directly to his waist” (Tr. at 8). Officer Weinfeld said that at that point he was “pretty much a hundred percent sure that he had had a gun in his waist” (Tr. at 19). He saw no protrusions from Mr. Green’s waist (Tr. at 19). The officers then exited their vehicle and “immediately” drew their weapons (Tr. at 32). Officer Weinfeld testified that they pointed their guns toward the man in such a way that, although the barrel was not actually pointed at anyone, “it gives the appearance that you would be pointing the gun at them” (Tr. at 9). Officer Weinfeld testified that after the officers “had exited our vehicle and began to approach the defendant,” he saw Mr. Green “beg[in] to reenter the side doors of the conversion
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The United States also presented Detective Michael Wiggins of the Metropolitan Police Department, who testified about the events surrounding the interrogation of Mr. Green at the First District stationhouse on the evening of March 8, 2006 (Tr. 35-43). Mr. Green stipulated to most of Detective Wiggins’s testimony (Tr. at 81). 4

van” (Tr. at 9). At that time, Officer Weinfeld “observed that there was also another individual that was walking down the steps of 1435 G. Street towards us” (Tr. at 10). Officer Weinfeld then approached Mr. Price, “stopped him,” and “had him placed on the ground” (Tr. at 10). As he was doing that, he apparently observed officer Gaumond stop Mr. Green and “place[] him on the ground” (Tr. at 10). Officer Weinfeld testified that he was touching Mr. Price when Mr. Price was placed on the ground and that his weapon was no longer drawn at that point (Tr. at 28). Officer Weinfeld testified that as Officer Gaumond placed Mr. Green on the ground, Officer Gaumond said “he’s got a gun” (Tr. at 17-18). Then, according to Officer Weinfeld’s testimony, Mr. Green made the statement “I’ve got a gun in my waist, chief” as he was being placed on the ground (Tr. at 18, 10). Officer Weinfeld also testified that prior to Mr. Green’s statement, the officers had not asked Mr. Green any questions (Tr. at 11). Officer Weinfeld first testified that he did not know whether Mr. Green was placed in handcuffs immediately upon being forced to the ground, but later he testified that he believed he was not (Tr. at 25, 29-30, 33). After Mr. Green’s statement, Officer Weinfeld saw Officer Gaumond “pat down” Mr. Green and recover a handgun from his waistband (Tr. at 11-12). At some point the officers ordered a woman out of the van and to the ground (Tr. at 11). She was later arrested for possession of an open container of alcohol (Tr. at 12). Officer Weinfeld testified that Officer Gaumond later told him that he searched Mr. Green and recovered fifty-five Ziploc bags containing crack cocaine (Tr. at 12). .II The Testimony of Kevin Price Kevin Price testified that in the late afternoon of March 8, 2006, he was standing outside his home, 1435 G Street, next to his van talking with Mr. Green while his wife Sharnene “Shawn” Johnson was inside their van (Tr. at 45-46). At some point, he saw a police car speeding down the street (Tr. at 46). A police officer got out of the car, drew his weapon as he

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got out, and immediately pointed his gun at Messrs. Green and Price (Tr. at 47-48). He immediately ordered the men to the ground and began asking them “Where’s the gun?” (Tr. at 48). Mr. Price testified that the police officer approached him and “slammed” him to the ground, and that he saw Mr. Green “slammed” or “pushed” to the ground by another police officer (Tr. at 48, 49). Messrs. Green and Price were forced to lie “face down on the ground” (Tr. at 48), while the police officers stood over the men with a foot on the their backs, continuing to point their weapons at the men (Tr. at 50). Mr. Price testified that he and Mr. Green were handcuffed as soon as they were both secured on the ground (Tr. at 50, 59). Mr. Price testified that while he and Mr. Green were lying face down and handcuffed, the police officers continued to inquire about the presence of a gun “four or five times” (Tr. at 50). Finally, while handcuffed on the ground, Mr. Green told the police officers that he had a gun (Tr. at 50). .III The Testimony of Thomas Green Mr. Green testified that in the late afternoon of March 8, 2006, he was standing outside a van, parked in front of 1435 G Street, talking with his friends: Mr. Price and Ms. Johnson (Tr. at 65). When he first saw the police, their guns were drawn and pointed at him and Mr. Price (Tr. at 66-67). Mr. Green testified that the police told him to get down on the ground (Tr. at 67). He did not touch his waist and never attempted to run or flee (Tr. at 67, 70). Mr. Green testified that the police “grabbed me and slammed me on the ground” (Tr. at 67). He was handcuffed “as soon as they slammed us on the ground” (Tr. at 68) and forced to lie face down on the ground (Tr. at 67). While on the ground, he was asked “where’s the gun?” “three or four times” (Tr. at 68). Mr. Green testified that while he was lying on the ground, Ms. Johnson got out of the van and started arguing with the police for about one minute (Tr. at 74, 80).

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While handcuffed and lying on the ground with the police over him with a knee in his back, Mr. Green finally responded that he had a gun (Tr. at 68). He then shifted his weight to indicate that the gun was located in his waist, and Officer Gaumond then “lifted up my shirt and got it off my waist” (Tr. at 69). At that point, Officer Gaumond picked up Mr. Green, searched him, and recovered drugs from his pockets (Tr. at 69). .IV The Trial Court’s Findings of Fact The trial court made the following findings of fact: On March 8, 2006, about 4:45 p.m., Officer Weinfeld was on patrol with Partner Officer Gauman, G-A-U-M-A-N,5 in his patrol service area in a marked police car when he received a dispatch which may have come over the radio but which also definitely came over a computer in his automobile in writing. The dispatch was for a tall dark skin black male wearing blue jeans and a white and black T-shirt that had a snow man on the front of it. The report indicated that this individual was standing next to a blue van in front of 1435 G Street, Northeast and had a gun in his waistband. There is no indication of the source of the information contained in the dispatch. Officer Weinfeld had been on the police department for just about six years at that point and who had been involved in over a hundred narcotic related arrests and approximately 20 to 30 gun arrests, proceeded in quote, expedited fashion from where he was to the 1400 block of G Street, Northeast. He traveled approximately seven or eight blocks and took about three to four minutes to travel that distance. This was an area known to the officer as a high drug area in which he was aware of several complaints for the sale of drugs. The officers had turned off lights and sirens before entering the 1400 block of G Street. As they entered the block, they stopped about two car lengths, or about 30 to 40 feet behind a blue conversion van which they saw in the block parked directly in front of 1435 G street. As they pulled up, they saw the defendant just coming out of the van which was parked at the curb with all passenger side doors open. The defendant turned towards them and Officer Weinfeld observed that he had on a white T-shirt with a large figure of the Pills Berry Dough Boy on it. There’s a photograph in evidence of this shirt. This was a white puffy cartoon figure. Weinfeid immediately
5

Officer Gaumond’s name is correctly spelled “Gaumond.” See, e.g., Complaint (R. 2 at 2). 7

believed this was a picture of a snow man. And, in fact, said to his partner, look, a snow man. The defendant wore this T-shirt out over his pants, except that his waistband was concealed and had under it a black long sleeve T-shirt. He appeared to be about five foot eleven, with dark skin and was an African/America[n] male. As the car pulled up, and as Officer Weinfeld observed these things about the defendant, the defendant turned and appeared to look at the car, and Officer Weinfeld saw the defendant take notice of the car and become wide eyed. At that time, Officer Weinfeld saw the defendant gesture to his waist and demonstrated this gesture. The gesture was with a black open hand, palm to the waist area in a gesture that the officer testified was consistent with his own practice and practically had seen by suspects on the street of checking one’s gun in a waistband to make sure that it remains as it was previously positioned there. At that point, the defendant began to retreat into the van. The defendant himself testified that at that moment, or at the moment he realized the police presence in the block, he became scared because he had a gun in his waistband. At that time, Officer Weinfeid had, quote, no doubt that the defendant was armed. And testified in another point in his testimony that he became one hundred percent sure that the defendant was armed. He and his partner got out of their car, drew their guns immediately as they got out of the car for their safety and both officers held their weapons in a position between the front pockets of their shirts in what they call a low tuck position with the gun held close to their chest, one hand cuffed under the other and the barrel of the gun pointed at an angle down towards the sidewalk, or down towards their feet. The method of holding the weapon was designed not in fact to be pointed towards others, but to create an appearance that it was pointed at others, all for safety reasons. Both officers approached the van. One or both of them yelled three or four times at this point, Where is the gun? Where is the gun? As the defendant was entering the van at the approach of the police, Kevin Price, I find, came down the steps of the house, or approached the officers and the incident taking place outside the van. Shawn Johnson, a woman, was inside the van at that time. At the same moment, Officer Gauman got the defendant out of the van, physically removing him from

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it. And Officer Weinfeld physically detained Mr. Price and ordered both of them to get down on the ground face down. The officers, I find, had reholstered their guns at this point. Ms. Johnson then began interacting with the officers who ordered her also to the ground at that time. Officer Gauman was with the defendant. He did not cuff him immediately. He asked the defendant where the gun; the defendant did not respond. This time Officer Gauman’s attention was drawn to Officer Weinfeld’s interaction with Ms. Johnson. And for about one minute, he said nothing to the defendant. The defendant then stated, Here’s the gun, or here’s the gun, Chief, and gestured to his waist to indicate a .9 millimeter Smith and Wesson firearm that was tucked into his waistband. Officer Gauman removed the weapon, announced, he’s got a gun to his partner. And at this point, other officers began arriving. Officer Gauman then put handcuffs on the defendant, stood the defendant up, searched him and found in a pocket on the defendant 55 bags of suspected crack and one bag of marijuana in his pocket. Gauman then yells to Officer Weinfeld that the defendant had crack in his pocket. They were enough distance away from each other at that point so that Officer Weinfeld did not see the search that yielded the crack. The defendant was placed in a car, taken to the police district where he was interviewed by Detective Michael Wiggins. Detective Wiggins was not otherwise involved in the arrest. He simply took the role of interviewing the defendant. *** Officer Weinfeld and Detective Wiggins, I credit both Officer Weinfeld and Detective Wiggins’ testimony. With respect to Detective Wiggins, it is essentually [sic] stipulated testimony. With respect to Officer Weinfeld, much of what Officer Weinfeld testified to was corroborated in material detail by the defendant and Mr. Price. The only exceptions to this was whether the defendant made a gesture to his waistband and retreated into the van after the arrival of the officers and the timing of the handcuffs. Although, that was frankly all over the map throught [sic] everybody’s testimony and throughout the defendant and his witness’ testimony. And I do specifically find that the gesture to the waistband was made and that the defendant retreated into the van. Mr. Price was -- and, frankly, both the defendant and the Mr. Price were engaged in some very sort of fast paced actions in response to the arrival of the police. The defendant admitted that he was scared at the arrival of the police. He, in fact, acknowledged having both crack and a firearm on him. And the motion to the 9

waistband was one which may well have been involuntary, one which Mr. Price easily could have failed to observe. And similarly, the retreat to the van was an action that either the defendant or the witness could have failed to register. In addition, both the gesture and the retreat would be reasonable responses exhibiting consciousness of guilt of the circumstances admitted by the defendant, which is he had a gun and crack on him. So I do credit that those motions were made and that the defendant attempted to retreat into the car. The defendant himself corroborates the timing of his own statement disclosing the gun’s whereabouts and stated that that statement was made following sort of a one minute interaction scuffle between Officer Weinfeld and Ms. Johnson in the car. (Tr. II at 6-14).

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ARGUMENT .I The Stop of Mr. Green was Conducted in Violation of His Fourth Amendment Rights Mr. Green moved to suppress the tangible evidence and his statements on grounds including that the police did not have reasonable suspicion to stop him. The trial court denied his motion, in part because it mistakenly found that Mr. Green had attempted to flee before the police seized him. This finding was clearly erroneous, and the facts that did occur before Mr. Green’s seizure are insufficient to establish reasonable suspicion. .A The trial court’s finding that Mr. Green attempted to flee before he was seized was clearly erroneous.

The trial court found that Mr. Green attempted to retreat into the van before the police officers exited their vehicles and drew their weapons. But there was simply no testimony to this effect in the record. The government’s witness testified that he saw Mr. Green attempt to retreat into the van after he exited his vehicle, and Mr. Green testified that he made no such attempt. Therefore, if Mr. Green is to be found to have attempted to retreat into the van upon seeing the police, he must be found to have done so only after the police officers exited their vehicles and drew their weapons. Findings of fact are usually reviewed for clear error. See Morris v. United States, 728 A.2d 1210, 1215 (D.C. 1999) (“The trial court’s underlying factual findings, however, are reviewed under the ‘clearly erroneous’ standard.”). It should be noted, however that the factual issue presented here has nothing to do with the credibility of witnesses. Mr. Green contends that the trial judge, issuing findings of fact without the benefit of a transcript, simply misremembered the pertinent testimony. Because a transcript is now available, the usual deference given to findings of fact may not be warranted. At the hearing on Mr. Green’s motion to suppress, the government’s witness, Officer Weinfeld, testified to the following sequence of events: First, he saw Mr. Green take notice of the officers and touch his waistband; then the police exited their vehicle, drew their weapons and

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pointed them toward Mr. Green; and then he saw Mr. Green attempt to reenter the van. Officer Weinfeld testified as follows: We observed a blue conversion van that had the doors opened on it as we entered the block. Q: What happened next? A: As we approached the vehicle with our scout car, I observed the defendant, who was later found to be Thomas Green, observed him exit the vehicle. Tr. at 6. I could see Mr. Green taking notice of our vehicle approaching. As he had looked directly at us, he got wide-eyed and then he made a motion to his waist. Tr. at 7. Once we saw Mr. Green step out of the vehicle, we exited ours. *** Q: And can you tell me how much time elapsed from the time you exited your vehicle to when you first drew your gun? A: After seeing the defendant’s motion, I exited the vehicle and immediately drew my weapon. Tr. at 32. [Mr. Green] began to reenter the side doors of the conversion van. At that time, myself and Officer Gaumon had exited our vehicle and began to approach the defendant. Q: And did you have your guns drawn at this point? A: Yes. Tr. at 9, emphasis added. Officer Weinfeld used the past perfect tense, testifying that at the time he saw Mr. Green attempt to reenter the van, he and Officer Gaumond “had exited” their vehicle with their guns drawn, signifying that he exited his vehicle and drew his weapon before

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observing Mr. Green attempt to reenter the van.6 Mr. Green testified that he made no attempt to reenter the van nor any attempt to flee from the police. Tr. at 70. Despite this testimony, the trial court mistakenly concluded that the officers got out of their car and drew their weapons after seeing Mr. Green begin to enter the van. The court found as follows: At that time, Officer Weinfeld saw the defendant gesture to his waist. . . . At that point, the defendant began to retreat into the van. . . . At that time, Officer Weinfeid had, quote, no doubt that the defendant was armed. . . . He and his partner got out of their car, drew their guns immediately as they got out of the car. . . . Findings of Fact, supra p. 8. This error is significant because the trial court, mistakenly believing that Mr. Green had attempted to flee before the police officers pointed their guns at him, considered the later flight attempt as one of the facts giving rise to the reasonable suspicion that justified the initial stop of Mr. Green. See Tr. II at 19; App. at 10a (“The fact that he did appear to be retreating in response to their presence . . . made their response reasonable and with reasonable suspicion.”). .B An anonymous tip combined with a common gesture to the waist are not sufficient to establish reasonable suspicion.

The Supreme Court has held that police do not have reasonable suspicion to stop and frisk a suspect when acting only on the basis of an anonymous tip given over the telephone, even when the tip involves a gun and contains a very detailed description of the suspect and his location, and even when the police arrive at the given location and find a person fitting the description. See Florida v. J.L., 529 U.S. 266 (2000). The instant case presents the same question on very similar facts. The only difference is that when the police arrived to find Mr. Green matching the description given in an anonymous telephone tip, they observed him make a gesture with his hand toward his waist. This case presents the question of whether this hand gesture is sufficient to corroborate an anonymous tip and establish reasonable suspicion to
6

This fact is confirmed by Officer Weinfeld’s sworn statement in support of the Complaint. See Complaint, R. 2 at 2 (“As Officer Gaumond and I approached D-1 [Mr. Green], he began to attempt to enter the blue van.”). 13

conduct a Terry stop. If it is, then the Supreme Court’s ruling will have no life, confined only to hypothetical cases in which the government stipulates to no corroborative conduct. This Court should require that anonymous tips be corroborated by conduct that is strongly indicative of criminal conduct or unlikely to have occurred for reasons independent of any explanation provided by the tip. The trial court’s legal determination as to whether reasonable suspicion exists is reviewed de novo. McFerguson v. United States, 770 A.2d 66, 73 n. 10 (D.C. 2001) (“[W]e review de novo the ultimate question of whether a seizure was supported by reasonable suspicion.”). In Florida v. J.L., the police received an anonymous tip over the phone that a man standing at a particular bus stop and wearing a plaid shirt was carrying a gun. The police arrived at the bus stop a few minutes later and saw three men standing there, one of whom was wearing a plaid shirt. One of the officers approached the man wearing the plaid shirt, told him to put his hands up on the bus stop, frisked him, and seized a gun from his pocket. Florida v. J.L., 529 U.S. at 268. The police did not draw their weapons, and no one was placed on the ground. A unanimous Supreme Court held that the police did not have the requisite reasonable suspicion needed to justify a Terry stop: “we hold that an anonymous tip lacking indicia of reliability . . . does not justify a stop and frisk whenever and however it alleges the illegal possession of a firearm.” Id. at 274. The instant case can be meaningfully distinguished from Florida v. J.L. only by Mr. Green’s gesture to his waist and the heightened force the police used to “stop” him, pointing their weapons toward him and forcing him to the ground. According to police testimony in this case, the police were responding to a lookout, received over the police radio and computer, for a man with a gun, standing outside a given address, and wearing a shirt with a snowman printed on it. The police had no information about the source of the tip, and none was presented during the hearing below. As the police approached the given address, they saw Mr. Green wearing a shirt with a figure resembling a snowman, and they saw him gesture toward his waist in a manner the officer testified was consistent with someone checking his gun. At this point, the officers exited 14

their vehicle and pointed their weapons at Mr. Green such that he reasonably believed the weapon was pointed directly at him. See Findings of Fact, supra p. 8. Mr. Green was seized within the meaning of the Fourth Amendment at the moment the police pointed their weapons at him. United States v. Mendenhall, 446 U.S. 544, 554 (1980) (“a person has been ‘seized’ within the meaning of the Fourth Amendment only if . . . a reasonable person would have believed that he was not free to leave.”); United States v. Turner, 761 A.2d 845, 851 (D.C. 2000) (“A seizure occurs when the police have by word or conduct manifested to the suspect that he is not free to leave, and in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.”) (quoting Patton v. United States, 633 A.2d 800, 814 (D.C. 1993)). The trial court found that the seizure of Mr. Green was a “stop” as provided for in Terry v. Ohio, which is justified only by a reasonable, articulable suspicion. See Terry v. Ohio, 392 U.S. 1, 21 (1968) (“And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”); Trice v. United States, 849 A.2d 1002, 1005 (D.C. 2004) (“The Fourth Amendment permits a seizure of this sort—a forcible stop of a person for investigative purposes where probable cause to arrest is lacking—if the police officer has a reasonable suspicion ‘supported by specific articulable facts’ that warrants the intrusion.”) (quoting Terry). Obviously, a stop can be justified only on the grounds of facts knowable at the time of the stop. See 2 Wayne LaFave, Search and Seizure § 3.2(d) at 47 (4th ed. 2004) (“It is axiomatic that hindsight may not be employed in determining whether a prior arrest or search was made upon probable cause”) (quoted in Arizona v. Evans, 514 U.S. 1, 17 (1995)). At the time the police first stopped Mr. Green, they were acting only on the basis of an anonymous tip and a perceived hand gesture to the waist. See Section I, supra. Florida v. J.L. teaches that the tip alone is insufficient to justify a stop. The only question remaining is whether a simple hand gesture to the waist sufficiently corroborates an anonymous tip for the purpose of providing the needed reasonable suspicion. No case has found reasonable suspicion on such meager facts. 15

The trial court based its ruling on three cases, all distinguishable from the instant case. In Jefferson v. United States, 776 A.2d 576 (D.C. 2001), the police received a tip citing the “imminent robbery” of a gas station. When the police arrived at the gas station, they observed a man emerging “from a fenced area reasonably perceived to be off-limits to the public” and housing the entrance to the cashier’s office, precisely where the robbery was predicted to occur. Id. at 579. Two things are notable about these facts. First, the suspect’s corroborative behavior was itself illegal. But more importantly, it is behavior that is highly unlikely to have occurred for any reason other than that given in the tip. In other words, the odds are very low that someone would have been trespassing in the very area where a robbery had been predicted. This behavior is therefore importantly different from Mr. Green’s touch of his waist. Not only is it not illegal, but it could have occurred for any number of reasons unrelated to any criminal activity. Although the police officer testified that the hand gesture was consistent with one’s checking one’s gun, it is also consistent with one’s adjusting one’s pants. In short, Mr. Green’s ambiguous hand gesture is not nearly as probative of criminal activity as the suspect’s behavior in Jefferson. The other cases cited by the trial court are simply inapposite. United States v. Holmes, 360 F.3d 1339 (D.C. 2004), did not involve an anonymous tip given over the telephone and is distinguishable by the reliability of the tip itself. And the court in Sanders v. United States, 751 A.2d 952 (D.C. 2000), did not decide the issue of reasonable suspicion; it held only that conclusory testimony by the police about a caller’s reliability is insufficient to establish probable cause. A finding of reasonable suspicion in the instant case would essentially confine the Supreme Court’s ruling in Florida v. J.L. to its facts, where there was no evidence presented regarding the suspect’s conduct. This Court should require, consistent with the facts and reasoning of the cases cited above, that an anonymous tip be corroborated by behavior that is unlikely to have occurred for innocent reasons.

16

.II

Mr. Green’s Statement Made Prior to Arrest was Elicited in Violation of His Fifth Amendment Rights After having been forced at gunpoint to lie face-down on the ground, and after having

been asked repeatedly about the location of the gun, Mr. Green finally answered: “Here’s the gun.” This statement was made involuntarily, a product of the coercive situation created by the display of extreme police force. Also, it was made in response to police interrogation before Mr. Green had been advised of his right against self-incrimination. The trial court erred in failing to suppress this statement on these grounds, and this Court reviews that decision de novo. See Davis v. North Carolina, 384 U.S. 737, 741-42 (1966); Hill v. United States, 858 A.2d 435, 442 (D.C. 2004). .A Mr. Green’s statement was involuntary.

A statement is involuntary if, under the totality of the circumstances, the will of the individual was overborne in such a way as to render his statement the product of coercion. Castellon v. United States, 864 A.2d 141, 157 (D.C. 2004) (citing United States v. Turner, 761 A.2d 845, 854 (D.C. 2000)).7 While exceedingly few courts have considered questions of involuntariness arising prior to arrest, one court has reached the issue on facts quite similar to those in this case. In United States v. Perdue, 8 F.3d 1455, 1466 (10th Cir. 1993), the Tenth Circuit held that the defendant’s statements, made during an investigatory stop, were involuntary. In Perdue, police officers assigned to perimeter security during the search of a home stopped an automobile and forced the defendant out of his car and onto the ground at gunpoint. Id. at 1458. While the defendant remained face down on the ground, the officers asked him what he was doing on the property. Id. at 1459. The defendant responded with several incriminating statements that were introduced against him at trial. Id. at 1460. After construing the facts “in a way most favorable to the government,” including that he was not handcuffed until after the initial interrogation, the court held the statements involuntary and inadmissible. See id. at 1467 n.6. While no single factor was determinative, the court cited the rapidity with which the events
7

The Supreme Court uses “involuntary confession” and “coerced confession” interchangeably, “by way of convenient shorthand.” Blackburn v. Alabama, 361 U.S. 199, 207, 208 (1960). 17

unfolded, the “police dominated” environment, the officers’ use of guns, the placement of the defendant face down on the ground prior to interrogation, and the fact that the interrogating officer stood above the defendant with his gun drawn during questioning. Id. at 1467. Like the defendant in Perdue, Mr. Green was at the center of a tense, rapidly unfolding situation, with pervasive police presence. He too had had weapons pointed at him, and he too was forced to lie face down on the ground. Although the trial court found that the officers had re-holstered their weapons before continuing their questioning, the Perdue court recognized that someone lying face down with police officers standing above him would have been unable to appreciate this change in circumstance. See id. For all of the reasons cited by the Perdue court, this Court should find Mr. Green’s statement to be involuntary. Several additional factors support the conclusion that Mr. Green’s statement was involuntary. First, threats made by police officers bear upon determinations of involuntariness. See United States v. Jackson, 918 F.2d 236, 242 (1st Cir. 1990). Mr. Green testified that one of the officers ordered his companion Ms. Johnson to “get on the ground before he knocked her out. So that’s when I just told the officer I got the gun.” Tr. II at 79. The trial court credited this testimony and found that Mr. Green’s statement was prompted by the altercation between the police and Ms. Johnson. See Tr. II at 20; App. at 11a. Second, one’s age is a factor that bears upon susceptibility to coercion. See Haley v. Ohio, 332 U.S. 596 (1948); United States v. Henderson, 520 F.2d 896, 901 (2d Cir. 1975) (a twenty-two-year-old’s age may render him particularly susceptible to police pressure and is relevant to involuntariness). Mr. Green was only twenty-one years old at the time his statement was made. And third, there have been questions about Mr. Green’s mental health, which prompted a pretrial services representative to declare him in need of mental health services and the trial court to order a psychiatric evaluation. See R. 12; Colorado v. Connelly, 479 U.S. 157, 165 (1986) (“mental condition is surely relevant to an individual’s susceptibility to police coercion”). As this Court has recognized, the expansion in the scope of Terry stops to include “measures of force more traditionally associated with arrest than with investigatory detention” 18

raises Fifth Amendment concerns: “officers must make a choice — if they are going to take highly intrusive steps to protect themselves from danger, they must similarly provide protection to their suspects by advising them of their constitutional rights.” In re I.J., 906 A.2d 249, 25758, 260 (D.C. 2006) (citing Perdue, 8 F.3d at 1465). Mr. Green was the subject of an especially vigorous Terry stop, and consequently the government should be fully required to carry its burden of proving that Mr. Green’s assertions were made voluntarily. See Lego v. Twomey, 404 U.S. 477, 489 (1972). Because it cannot, Mr. Green’s statements and its fruits should have been suppressed. See Turner, 761 A.2d at 853 (“an involuntary statement is inadmissible at trial for any purpose” (quoting Jackson v. Denno, 378 U.S. 368, 376 (1964)); United States v. Patane, 542 U.S. 630, 639 (2004) (the “fruits of actually compelled testimony” are inadmissible at trial). .B Mr. Green’s statement prior to arrest was elicited in violation of his Miranda rights.

Mr. Green’s statement to the police, “Here’s the gun,” should be suppressed because the police did not advise him of his constitutional rights before they questioned him about the whereabouts of a gun. Miranda v. Arizona held that “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” Miranda v. Arizona, 384 U.S. 436, 444 (1966). The Supreme Court went on to explain: “By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Id. Mr. Green was deprived of his freedom of action in a significant way, because he was forced to lie face down on the ground by police officers who had pointed their guns at him. And he was subject to interrogation when he was repeatedly asked, at gunpoint or while on the ground, “Where’s the gun?” See United States v. Bogle, 114 F.3d 1271, 1275 (D.C. Cir. 1997) (interrogation occurs when an officer questions a suspect in a manner “reasonably likely to elicit incriminating information in the specific circumstances.”).

19

Because Mr. Green was the subject of custodial interrogation without being advised of his constitutional right against self-incrimination, his statement “Here’s the gun” should have been suppressed. .1 There is no precedent for the trial court’s conclusion that Mr. Green’s Miranda rights were not implicated because he was not responding to police interrogation.

The trial court found that Mr. Green’s Fifth Amendment rights were not violated because Mr. Green’s statement was not given in response to the officers’ questioning. The court explained: “the defendant was asked a question, didn’t answer the question and then sometime later, after observing a lot of chaos and interaction with Ms. Johnson in the car said, here is my gun. I find that the fact he was not responding to the question at the time . . . that the question where is the gun is specifically permitted even if the defendant were in custody for Fifth Amendment purposes.” Tr. II at 20; App. at 11a. The “sometime later” to which the court referred was a period of approximately one minute. As the court found: [Officer Gaumond] asked the defendant where the gun [sic]; the defendant did not respond. This time Officer Gauman’s [sic] attention was drawn to Officer Weinfeld’s interaction with Ms. Johnson. And for one minute, he said nothing to the defendant. The defendant then stated, Here’s the gun, or here’s the gun, Chief. Findings of Fact, supra p 9. There is simply no basis for the conclusion that a one minute pause between question and answer, during with the declarant’s attention may have been diverted, renders permissible what would otherwise be a Miranda violation. The trial court cited no authority for its conclusion, and counsel to Mr. Green has been unable to find any. There are cases admitting statements that are not responsive to questioning, but those cases involve utterances that are unrelated to the questions asked. See, e.g., United States v. Fleck, 413 F.3d 883 (8th Cir 2005) (defendants’ incriminating statements deemed “volunteered” where following officer’s inquiry as to “how they liked the food” at the county jail); see generally 2 Wayne LaFavre et al., Criminal Procedure § 6.7 n. 117-121 (2d ed. 1999). In the instant case, Mr. Green was asked directly “Where is the gun?” and he responded

20

“Here is the gun.” There can be no doubt that Mr. Green was answering the officers’ question, whatever his motivation to do so. .2 The public safety exception to Miranda does not apply where there is no reason to suspect a threat to public safety outside the control of the police.

The trial court held that, in any event, Mr. Green’s pre-arrest statement was admissible because of the public safety exception to Miranda. See Tr. II at 20; App. at 11a (“there is a public safety exception to Miranda, [and] the question where is the gun is specifically permitted.”). But as explained below, the application of the public safety exception to the facts of this case would greatly expand what has always been called a “narrow” exception. Prior cases have recognized the exception where there is a dangerous weapon believed to be accessible to others but outside the control of the police, and some jurisdictions have made this an explicit condition of the exception. This Court’s own precedent is consistent with a public safety exception that applies where there is a threat located outside the sphere of police control. The public safety exception to Miranda was established by the Supreme Court in Quarles v. New York, 467 U.S. 649 (1984). In Quarles, the police had been chasing a fleeing rapist whom his victim had identified as armed. The police followed the assailant into a supermarket, where he momentarily disappeared from their sight. After spotting him again while still in the supermarket, the police stopped and frisked the man to discover that he was wearing an empty gun holster. Prior to issuing any Miranda warnings, they asked him where the gun was. Id. at 652. He indicated toward some empty cartons and stated that “the gun is over there.” The police located a gun where the man had directed. Id. The defendant later challenged the admission of his statement based on the police’s failure to issue Miranda warnings. The Supreme Court announced that “on these facts, there is a ‘public safety’ exception to the requirement that Miranda warnings be given before a suspect’s answers may be admitted into evidence.” Id. at 655. Officers may ask “questions necessary to secure their own safety or the safety of the public” so long as they objectively appear to “follow their legitimate instincts when confronting situations presenting a danger to the public safety” rather than seek testimony. Id. at 21

659. The Supreme Court emphasized that the exception it was carving out was intended to be a narrow one. See id. at 658 (“recognizing a narrow exception to the Miranda rule in this case”). It is important to recognize that in Quarles the police knew that the suspect no longer had possession of his weapon and that the weapon was likely abandoned and accessible to others. In other words, they had control over the suspect, but the threat to public safety came from outside their sphere of control. The cases following Quarles have involved variations on this factual pattern. A typical case is Dyson v. United States, 815 A.2d 363 (D.C. 2003), in which the police were pursuing someone they had reason to believe had a gun. They lost sight of the man for a few moments but later apprehended him. After searching the man and the surroundings, the police could not locate the weapon. They then asked him about the location of the gun, and he responded with incriminating statements. The gun was missing and in an unsecured area, and consequently the statements were admitted. Similarly, in Edwards v. United States, 619 A.2d 33 (D.C. 1993), statements were admitted where a man seen carrying a gun disappeared into a partially abandoned apartment building and the police could not identify the gun’s location or determine its availability to potential accomplices without asking the suspect. In Trice v. United States, 662 A.2d 891 (D.C. 1995), the police questioned a suspect at the police station about guns in his home after he indicated that he had hid weapons there. The public safety exception applied because the police were not present at the home and others could have accessed the weapon. Similarly, in Crook v. United States, police questioning fell within the public safety exception because the police had reason to believe that “other armed individuals might be in the vicinity.” 771 A.2d 355, 356 (D.C. 2001). Conversely, where the police effectively govern the sphere in which they have reason to suspect a weapon could be located, the public safety exception does not apply. For example, in United States v. Raborn, 872 F.2d 589 (5th Cir. 1989), the public safety exception did not apply where the police questioned the defendant about guns in his truck when only the police could access the truck. The Fifth Circuit explained: “Unlike the situation in Quarles, however, when 22

the gun was hidden in a place to which the public had access, Raborn’s truck, where the police officers believed the gun to be, had already been seized and only the police officers had access to the truck. It is difficult therefore, to find that the public-safety exception applies.” Id. at 595. Also, in United States v. Braithwaite, the court declined to apply the public safety exception because the area in which guns might have been located “was under the full control of the agents at the time of questioning.” 458 F.3d 376, 382 n.8 (5th Cir. 2006). And the Sixth Circuit explicitly requires that in order for the public safety exception to apply, police officers “must have reason to believe (1) that the defendant might have (or recently have had) a weapon, and (2) that someone other than police might gain access to that weapon and inflict harm with it.” United States v. Williams, 483 F.3d 425, 428 (6th Cir. 2007). In the instant case, the police had no reason to believe there was a weapon outside of their control and accessible to others. In fact, there was no reason to believe that a weapon was anywhere other than on Mr. Green. As the trial court noted, the officer testified that he was one-hundred-percent sure that Mr. Green had the gun. See Findings of Fact, supra p. 8. And the police had complete control over Mr. Green. They had already placed their hands on him when forcing him to the ground, and they easily could have frisked him if they had wanted. In short, the police knew where the gun was and had control over it. There was simply no threat to public safety. As this Court has said, “The Fifth Amendment rights of the individual give way to the needs of law enforcement only when the latter is at its zenith.” In re I.J., 906 A.2d 249, 259 n.10 (D.C. 2005). There was not threat to public safety in the instant case, where only the police had access to Mr. Green’s gun at the time of his statement. Consequently, Mr. Green’s statement should have been suppressed under Miranda v. Arizona.

23

.III

The Trial Court Misconstrued the Youth Act and Other Sentencing Provisions to Find that Mr. Green was Subject to a Statutory Minimum Sentence. Not yet twenty-two years old when he pleaded guilty, Mr. Green was eligible to be

sentenced pursuant to the D.C. Code § 24-903 (the “Youth Act”). After Mr. Green was convicted of counts carrying minimum sentences for offenders who are not Youth Act eligible,8 the trial court asked for briefing on the issue of whether a Youth Act sentence must satisfy the generally applicable statutory minimum. After briefing and argument by the parties, the trial court found that, having concluded that a sentence of incarceration was appropriate, it was required by law to sentence Mr. Green to the same minimum sentence that would apply to offenders not eligible for a Youth Act sentence. See Tr. III at 9; App. at 14a (“I do conclude that the mandatory minimum applies if any term of commitment is ordered.”). And the court subsequently sentenced Mr. Green to that mandatory minimum sentence. R. 21; App. at 18a (indicating that a “mandatory minimum term of 5 years as to Count 6 applies.”). But as both the plain text and the legislative histories of the relevant sentencing provisions show, D.C. courts have discretion pursuant to the Youth Act to sentence eligible offenders below the otherwise applicable mandatory minimums, except in those cases where the statute specifically provides otherwise. Statutory construction is a legal question, to be reviewed de novo. See District of Columbia v. Morrissey, 668 A.2d 792, 796 (D.C. 1995) (“The construction of a statute raises a ‘clear question of law,’ and we review the trial court’s ruling de novo.”). .A The plain meaning of the Youth Act and related sentencing statutes permits youth offenders to be sentenced below otherwise applicable mandatory minimums. .1 The sentencing alternatives for youth offenders under D.C. Code § 24-903

One of the main purposes of the Youth Act is to provide additional “sentencing alternatives” for eligible offenders. See D.C. Code § 24-903. To be eligible for its sentencing alternatives, one must be “a person less than 22 years old convicted of a crime other than murder,
8

Possession With Intent to Distribute a Controlled Substance While Armed and Possession of a Firearm During the Commission of a Crime of Violence or Dangerous Offense carry minimum sentences of five years’ imprisonment for offenders who are not Youth Act eligible. See D.C. Code §§ 22-4502(a), 22-4504(b). 24

first degree murder that constitutes an act of terrorism, and second degree murder that constitutes an act of terrorism.” See D.C. Code § 24-901(6).9 If an offender is eligible for sentencing pursuant to the Youth Act, a court is given three alternatives: probation, commitment up to the maximum penalty otherwise provided, or a sentence under any other applicable penalty provision. The pertinent language is as follows: (a) If the court is of the opinion that the youth offender does not need commitment, it may suspend the imposition or execution of sentence and place the youth offender on probation. *** (b) If the court shall find that a convicted person is a youth offender, and the offense is punishable by imprisonment under applicable provisions of law other than this subsection, the court may sentence the youth offender for treatment and supervision pursuant to this subchapter up to the maximum penalty of imprisonment otherwise provided by law. *** (d) If the court shall find that the youth offender will not derive benefit from treatment under subsection (b) of this section, then the court may sentence the youth offender under any other applicable penalty provision. D.C. Code § 24-903. Two things are notable about this section. First, it contains no mandatory minimum sentence. Section (a) allows for entire sentences to be suspended and for the youth offender to be placed on probation, and Section (b) allows for a sentence “up to the maximum penalty of imprisonment otherwise provided by law.” Second, these sentencing provisions were clearly intended to have priority over other sentencing provisions. Section (d) specifically allows for sentencing “under any other applicable penalty provision.” In short, the Youth Act provides for an alternative sentencing scheme for youth offenders which may be used instead of “any other applicable penalty provision” and which contains no mandatory minimum.

9

Mr. Green was born on January 31, 1985 and was less than twenty-two years old when sentenced on September 20, 2006. He was not convicted of any of the offenses listed in D.C. Code § 24-901(6). 25

.2

The truth in sentencing provisions of D.C. Code § 24-403.01

The United States argued below, and the trial court accepted, that mandatory minimum sentences apply to Youth Act offenders because of language subsequently added to the law. The language in question is the following, originally passed as part of the Truth in Sentencing Amendment Act of 1998:10 A sentence under this section [for felonies committed on or after August 5, 2000] of imprisonment, or of commitment pursuant to § 24-903, shall be for a definite term, which shall not exceed the maximum term allowed by law or be less than any minimum term required by law. D.C. Code § 24-403.01(c). There are admittedly two ways to interpret this provision. Mr. Green submits that the far more natural interpretation is that it does nothing to change the status of mandatory minimum sentences for Youth Act offenders. The main point of the provision is that all sentences must be for a definite term, determinable at the time of sentencing. The provision also reiterates that any sentence must be between any applicable minimum and maximum, and that this is true for Youth Act sentences as well. But it simply means that youth offenders are subject to those mandatory minimums specifically provided for them. For instance, youth offenders who are convicted more than once of having committed a crime of violence when armed are subject to a mandatory minimum sentence. See D.C. Code § 22-4502(e)(1). Also, a youth offender is subject to an additional penalty if convicted more than once of first degree sexual abuse while armed or first degree child sexual abuse while armed. See id. The language in § 24-403.01(c) merely acknowledges that these minimums must be respected, just as all minimums must be. The other interpretation of § 24-403.01(c) would read it to mean that mandatory minimum sentences that had been applicable only to offenders not sentenced under the Youth Act must now be applied in Youth Act sentencing as well. But this interpretation reads too much into a provision that is primarily about the definiteness of sentences. The references to minimums and maximums, whether under the Youth Act or otherwise, were not meant to alter those limits.
10

D.C. Law 12-165, 45 D.C. Reg. 2980 § 2; App. at 35a. 26

.3

Because some offenses with mandatory minimum sentences are specifically exempt from the Youth Act, the other offenses must not be.

Another flaw with the interpretation given by the trial court is that it makes superfluous other provisions in the law. If § 24-403.01(c) means that all mandatory minimums apply to all Youth Act sentences, then there would be no reason for D.C. Code § 22-4502(e)(1), which makes the Youth Act inapplicable to certain mandatory minimum sentences. Obviously, statutory construction that results in some provisions being superfluous is to be disfavored. See, e.g., U. S. Parole Comm’n v. Noble, 693 A.2d 1084, 1107-08 (D.C. 1997) (“A basic principle is that each provision of the statute should be construed so as to give effect to all of the statute’s provisions, not rendering any provision superfluous.”). Furthermore, one of the specific mandatory minimums required of youth offenders was passed after the addition of § 24-403.01(c). The provision making the Youth Act inapplicable to offenders subject to additional penalties for being convicted more than once of first degree sexual abuse while armed was passed as part of the Technical Amendments Act of 2000. See D.C. Law 13-313 § 21(b)(3), 48 D.C. Reg. 1873, 1879; App. at 96a. Therefore, the ruling of the trial court renders superfluous a more specific provision that was passed after a more general one. .B The legislative history reveals that the Youth Act was intended to abrogate mandatory minimum sentences for youth offenders and that no subsequent law was intended to reinstitute them.

The Youth Act was passed to “fill the void” left by Congress’s repeal of the Federal Youth Corrections Act. See Report on Bill 6-47, Youth Rehabilitation Act of 1985, Council of the District of Columbia, Committee on the Judiciary, June 19, 1985, at 2; App. at 26a. The Federal Youth Corrections Act had provided for a great deal of flexibility in the sentencing of persons under the age of twenty-two, and under that act “no minimum sentence [was] required.” Watts v. Hadden, 651 F.2d 1354, 1376 (10th Cir. 1981). The repeal the Federal Youth Corrections Act had the unintended effect of eliminating youth rehabilitation measures in the District of Columbia. See Report on Bill 6-47, at 2; App. at 26a (“[A]bolition of the FYCA was more of an

27

accident caused by the District’s ties with the Federal government than an independent determination by Congress that the District should not have a special youth offender statute.”). Consequently, the D.C. Council passed the Youth Act “to give the court flexibility in sentencing a youth offender according to his individual needs” like it had had under the Federal Youth Corrections Act. Id. In 1997 Congress passed the National Capital Revitalization and Self Government Improvement Act. See Balanced Budget Act of 1997, Pub. L. No. 105-33, §§ 11,000 et seq., 111 Stat. 251. The Revitalization Act provided for the creation of a D.C. Truth in Sentencing Commission, which would propose changes to the D.C. sentencing laws to ensure that violent offenders would serve at least eighty-five percent of the imposed sentence. See id. § 11,212(b). The D.C. Council subsequently established a Truth In Sentencing Commission, which “limited its proposed legislation to the absolute minimum necessary to comply with the Revitalization Act.” Report on Bill 13-696, Sentencing Reform Amendment Act of 2000, Council of the District of Columbia, Committee on the Judiciary, May 25, 2000, at 3; App. at 51a (emphasis added). The Commission proposed legislation, which was promptly enacted as the Truth in Sentencing Amendment Act of 1998, D.C. Law 12-165, 45 D.C. Reg. 2980; App. at 34a. The Truth in Sentencing Amendment Act introduced into the law the language relied upon by the trial court. That Act provides as follows: In the case of [certain felonies],11 a sentence under this section of imprisonment, or of commitment pursuant to section 4 of the Youth Act, shall be for a definite term, which shall not exceed the maximum term allowed by law or be less than any minimum term required by law. D.C. Law 12-165 § 2; App. at 35a. As mentioned above, the purpose of this act was simply to do the “absolute minimum necessary” to comply with the National Capital Revitalization Act truth

11

As originally drafted, this provision applied only “[i]n the case of a felony described in section 11212(h) of the National Capital Revitalization and Self Government Improvement Act of 1997.” As discussed in the following paragraph, this provision was later amended to apply to all felonies committed on or after August 5, 2000. 28

in sentencing requirements. And as the committee report makes explicitly clear, this law was not intended to extend any mandatory minimum sentences to persons sentenced under the Youth Act: This preserves existing maxima and minima, subject to any future changes that may be made to the District of Columbia Code. It does not require or result in any extension or application of mandatory minimum sentences to categories of offenders, including persons sentenced under the Youth Rehabilitation Act, to which the mandatory minima do not apply currently under District of Columbia law. Report on Bill 12-523, Truth in Sentencing Amendment Act of 1998, Council of the District of Columbia, Committee on the Judiciary, February 25, 1998, at 9; App. at 46a. In short, the legislative history confirms that this provision merely requires that all sentences be of a definite length, within any previously applicable minimums or maximums. Two years after passing the Truth in Sentencing Amendment Act, the D.C. Council passed the Sentencing Reform Amendment Act of 2000, D.C. Law 13-302, 47 D.C. Reg. 7249; App. at 78a. The trial court mistakenly cited this act as the source of the language added by the Truth in Sentencing Amendment Act. See Tr. III at 10; App. at 15a. In fact, the Sentencing Reform Amendment Act merely amended the relevant language in the Truth in Sentencing Amendment Act to make it applicable to all felonies. See D.C. Law 13-302, § 8(a)(4)(A); App. at 86a (“The first sentence is amended by striking the phrase ‘In the case of a felony described in section 11212(h) of the National Capital Revitalization and Self Government Improvement Act of 1997, approved August 5, 1997 (111 Stat. 712; D.C. Code § 24-1212(h)), a’ and inserting the word ‘A’ in its place.”).12 Finally, as mentioned in Section 3 supra, the Technical Amendments Act of 2000 provided that Youth Act offenders are specifically subject to additional penalties if convicted of a second or successive offense of first degree sexual abuse while armed. It is worth noting that there had already been one such exception in the law. The District of Columbia Court Reform and Criminal Procedure Act of 1970 provided that sentences pursuant to the Federal Youth
12

The Sentencing Reform Amendment Act also amends the Youth Act by specifying terms of supervised release and the proper facilitates for Youth Act offenders. See D.C. Law 13-302, §§ 8(a)(2) & (a)(9); App. at 84a & 87a. 29

Corrections Act13 would not apply to persons convicted more than once of having committed a crime of violence “when armed or having readily available any pistol or other firearm . . . or other dangerous or deadly weapon.” See Pub. L. No. 91-358, § 205(a), 84 Stat. 473; App. at 101a. In 2000, after the passage of the sentencing amendments discussed above, the same section of the D.C. Code was amended to make the Youth Act inapplicable to offenders subject to additional penalties for being convicted more than once of first degree sexual abuse while armed. See Technical Amendments Act of 2000 § 21(b)(3); App. at 96a. This amendment further confirms that the D.C. Council had understood that mandatory minimums do not generally apply to Youth Act sentences. .C The rule of lenity requires that youth offenders not be subject to mandatory minimums, except as specifically provided.

It is a well-established cannon of statutory construction that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.” Rewis v. United States, 401 U.S. 808, 812 (1971); Henson v. United States, 399 A.2d 16, 21 (D.C. 1979) (“When a penal statute is capable of two or more reasonable constructions the ‘rule of lenity’ directs our attention to the least harsh among them.”). At the very least, the statutes discussed above are ambiguous. Therefore, the rule of lenity requires that these statutes be construed such that youth offenders are subject to mandatory minimums only as specifically provided. CONCLUSION For the reasons set forth above, Mr. Green respectfully requests that the order denying his motion to suppress evidence be reversed, that his conviction be vacated, and that the case be remanded to the Superior Court for the District of Columbia. In the alternative, he requests that his sentence be vacated and the case be remanded for sentencing consistent with a ruling from this Court.
13

When the FYCA was replaced by the Youth Act, this provision was updated to apply to the Youth Act. See Youth Rehabilitation Amendment Act of 1985, D.C. Law 6-69, 32 D.C. Reg. 4587 § 9; App. at 23a. 30

Respectfully submitted,

_____________________________ James Mangiafico, Bar No. 481689 Mary Kennedy, Bar No. 390622 ARNOLD & PORTER LLP 555 Twelfth Street, NW Washington, DC 20004 (202) 942-5000

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ADDENDUM OF STATUTORY PROVISIONS INVOLVED D.C. Code § 22-4502. Additional penalty for committing crime when armed. (a) Any person who commits a crime of violence, or a dangerous crime in the District of Columbia when armed with or having readily available any pistol or other firearm (or imitation thereof) or other dangerous or deadly weapon (including a sawed-off shotgun, shotgun, machine gun, rifle, dirk, bowie knife, butcher knife, switchblade knife, razor, blackjack, billy, or metallic or other false knuckles): (1) May, if such person is convicted for the first time of having so committed a crime of violence, or a dangerous crime in the District of Columbia, be sentenced, in addition to the penalty provided for such crime, to a period of imprisonment which may be up to, and including, 30 years for all offenses except first degree murder while armed, second degree murder while armed, first degree sexual abuse while armed, and first degree child sexual abuse while armed, and shall, if convicted of such offenses while armed with any pistol or firearm, be imprisoned for a mandatory-minimum term of not less than 5 years; and (2) Shall, if such person is convicted more than once of having so committed a crime of violence, or a dangerous crime in the District of Columbia, be sentenced, in addition to the penalty provided for such crime, to a period of imprisonment of not less than 5 years and, except for first degree murder while armed, second degree murder while armed, first degree sexual abuse while armed and first degree child sexual abuse while armed, not more than 30 years, and shall, if convicted of such second offense while armed with any pistol or firearm, be imprisoned for a mandatory-minimum term of not less than 10 years. (3) Shall, if such person is convicted of first degree murder while armed, second degree murder while armed, first degree sexual abuse while armed, or first degree child sexual abuse while armed, be sentenced, in addition to the penalty provided for such crime, to a period of imprisonment of not less than the minimum and mandatory minimum sentences required by subsections (a)(l), (a)(2), (c) and (e) of this section and § 22-2104, and not more than life imprisonment or life imprisonment without possibility of release as authorized by § 24403.01(b-2); § 22-2104; § 22-2104.01; and §§ 22-3002, 22-3008, and 22-3020. (4) For purposes of imprisonment following revocation of release authorized by § 24403.01(b)(7), the offenses defined by this section are Class A felonies. (b) Repealed. (c) Any person sentenced pursuant to paragraph (1), (2), or (3) of subsection (a) above for a conviction of a crime of violence while armed with any pistol or firearm, shall serve a mandatory-minimum term of 5 years, if sentenced pursuant to paragraph (1) of subsection (a) of this section, or 10 years, if sentenced pursuant to paragraph (2) of subsection (a) of this section, and such person shall not be released, granted probation, or granted suspension of sentence, prior to serving such mandatory-minimum sentence.

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(d) Repealed. (e)(1) Subchapter I of Chapter 9 of Title 24 shall not apply with respect to any person sentenced under paragraph (2) of subsection (a) of this section or to any person convicted more than once of having committed a crime of violence or a dangerous crime in the District of Columbia sentenced under subsection (a)(3) of this section.. (2) The execution or imposition of any term of imprisonment imposed under paragraph (2) or (3) of subsection (a) of this section may not be suspended and probation may not be granted. (f) Nothing contained in this section shall be construed as reducing any sentence otherwise imposed or authorized to be imposed. (g) No conviction with respect to which a person has been pardoned on the ground of innocence shall be taken into account in applying this section. D.C. Code § 24-903. Sentencing alternatives. (a)(1) If the court is of the opinion that the youth offender does not need commitment, it may suspend the imposition or execution of sentence and place the youth offender on probation. (2) The court, as part of an order of probation of a youth offender between the ages of 15 and 18 years, shall require the youth offender to perform not less than 90 hours of community service for an agency of the District government or a nonprofit or other community service organization, unless the court determines that the youth offender is physically or mentally impaired and that an order of community service would be unjust or unreasonable. (3) Within 120 days of January 31, 1990, the Mayor shall develop and furnish to the court a youth offender community service plan. The plan shall include: (A) Procedures to certify a nonprofit or community service organization for participation in the program; (B) A list of agencies of the District government or non-profit or community service organizations to which a youth offender may be assigned for community service work; (C) A description of the community service work to be performed by a youth offender in each of the named agencies or organizations; (D) Procedures to monitor the attendance and performance of a youth offender assigned to community service work; (E) Procedures to report to the court a youth offender’s absence from a court-ordered community service work assignment; and

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(F) Procedures to notify the court that a youth offender has completed the community service ordered by the court. (4) If the court unconditionally discharges a youth offender from probation pursuant to § 24906(b), the court may discharge the youth offender from any uncompleted community service requirement in excess of 90 hours. The court shall not discharge the youth offender from completion of the minimum of 90 hours of community service. (b) If the court shall find that a convicted person is a youth offender, and the offense is punishable by imprisonment under applicable provisions of law other than this subsection, the court may sentence the youth offender for treatment and supervision pursuant to this subchapter up to the maximum penalty of imprisonment otherwise provided by law. The youth offender shall serve the sentence of the court unless sooner released as provided in § 24-904. (c) Where the court finds that a person is a youth offender and determines that the youth offender will derive benefit from the provisions of this subchapter, the court shall make a statement on the record of the reasons for its determination. The youth offender shall be entitled to present to the court facts that would affect the decision of the court to sentence the youth offender pursuant to the provisions of this subchapter. (d) If the court shall find that the youth offender will not derive benefit from treatment under subsection (b) of this section, then the court may sentence the youth offender under any other applicable penalty provision. (e) If the court desires additional information as to whether a youth offender will derive benefit from treatment under subsection (b) of this section, the court may order that the youth offender be committed for observation and study at an appropriate classification center or agency. Within 60 days from the date of the order or an additional period that the court may grant, the court shall receive the report. (f) Subsections (a) through (e) of this section provide sentencing alternatives in addition to the options already available to the court. D.C. Code § 24-403.01. Sentencing, supervised release, and good time credit for felonies committed on or after August 5, 2000. (a) For any felony committed on or after August 5, 2000, the court shall impose a sentence that: (1) Reflects the seriousness of the offense and the criminal history of the offender; (2) Provides for just punishment and affords adequate deterrence to potential criminal conduct of the offender and others; and (3) Provides the offender with needed educational or vocational training, medical care, and other correctional treatment.

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(b)(1) If an offender is sentenced to imprisonment, or to commitment pursuant to § 24-903, under this section, the court shall impose a period of supervision ("supervised release") to follow release from the imprisonment or commitment. (2) If the court imposes a sentence of more than one year, the court shall impose a term of supervised release of: (A) Five years, if the maximum term of imprisonment authorized for the offense is 25 years or more; or (B) Three years, if the maximum term of imprisonment authorized for the offense is more than one year, but less than 25 years. (3) If the court imposes a sentence of one year or less, the court shall impose a term of supervised release of: (A) Not more than 5 years, if the maximum term of imprisonment authorized for the offense is 25 years or more; or (B) Not more than 3 years, if the maximum term of imprisonment authorized for the offense is more than one year, but less than 25 years. (4) In the case of a person sentenced for an offense for which registration is required by the Chapter 40 of Title 22, the court may, in its discretion, impose a longer term of supervised release than that required or authorized by paragraph (2) or (3) of this subsection, of: (A) Not more than 10 years; or (B) Not more than life if the person is required to register for life. (5) The term of supervised release commences on the day the offender is released from imprisonment, and runs concurrently with any federal, state, or local term of probation, parole, or supervised release for another offense to which the offender is subject or becomes subject during the term of supervised release. A term of supervised release does not run during any period in which the offender is imprisoned in connection with a conviction for a federal, state, or local crime unless the period of imprisonment is less than 30 days. (6) Offenders on supervised release shall be subject to the authority of the United States Parole Commission until completion of the term of supervised release. The Parole Commission shall have and exercise the same authority as is vested in the United States District Courts by 18 U.S.C. § 3583(d)-(i), except that: (A) The procedures followed by the Parole Commission in exercising such authority shall be those set forth in chapter 311 of title 18 of the United States Code; and (B) An extension of a term of supervised release under 18 U.S.C. § 3583(e)(2) may be 35

ordered only by the court upon motion from the Parole Commission. (7) An offender whose term of supervised release is revoked may be imprisoned for a period of: (A) Not more than 5 years, if the maximum term of imprisonment authorized for the offense is life or the offense is specifically designated as a Class A felony; (B) Not more than 3 years, if the maximum term of imprisonment authorized for the offense is 25 years or more, but less than life and the offense is not specifically designated as a Class A felony; (C) Not more than 2 years, if the maximum term of imprisonment authorized for the offense is 5 years or more, but less than 25 years; or (D) Not more than 1 year, if the maximum term of imprisonment authorized for the offense is less than 5 years. (b-1) If the maximum term of imprisonment authorized for an offense is a term of years, the term of imprisonment or commitment imposed by the court shall not exceed the maximum term of imprisonment authorized for the offense less the maximum term of imprisonment authorized upon revocation of supervised release pursuant to subsection (b)(7) of this section. If the maximum term of imprisonment authorized for the offense is up to life or if an offense is specifically designated as a Class A felony, the maximum term of imprisonment authorized upon revocation of supervised release pursuant to subsection (b)(7) shall not be deducted from the maximum term of imprisonment or commitment authorized for such offense. (b-2)(1) The court may impose a sentence in excess of 60 years for first degree murder or first degree murder while armed, 40 years for second degree murder or second degree murder while armed, or 30 years for armed carjacking, first degree sexual abuse, first degree sexual abuse while armed, first degree child sexual abuse or first degree child sexual abuse while armed, only if: (A) Thirty-days prior to trial or the entry of a plea of guilty, the prosecutor files an indictment or information with the clerk of the court and a copy of such indictment or information is served on the person or counsel for the person, stating in writing one or more aggravating circumstances to be relied upon; and (B) One or more aggravating circumstances exist beyond a reasonable doubt. (2) Aggravating circumstances for first degree murder are set forth in § 22- 2104.01. Aggravating circumstances for first degree sexual abuse and first degree child sexual abuse are set forth in § 22-3020. In addition, for all offenses, aggravating circumstances include: (A) The offense was committed because of the victim's race, color, religion, national origin or sexual orientation; 36

(B) The offense was committed because the victim was or had been a witness in any criminal investigation or judicial proceeding or was capable of providing or had provided assistance in any criminal investigation or judicial proceeding; (C) The offense was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody; (D) The offense was especially heinous, atrocious, or cruel; (E) The offense involved a drive-by or random shooting; (F) The offense was committed after substantial planning; (G) The victim was less than 12 years old or more than 60 years old or vulnerable because of mental or physical infirmity; or (H) Except where death or serious bodily injury is an element of the offense, the victim sustained serious bodily injury as a result of the offense. (3) This section does not limit the imposition of a maximum sentence of up to life imprisonment without possibility of release authorized by § 22-1804a; § 22-2104.01; § 222106; and § 22-3020. (c) A sentence under this section of imprisonment, or of commitment pursuant to § 24-903, shall be for a definite term, which shall not exceed the maximum term allowed by law or be less than any minimum term required by law. A person sentenced under this section to imprisonment, or to commitment pursuant to § 24-903, for such a felony shall serve the term of imprisonment or commitment specified in the sentence, less any time credited toward service of the sentence under subsection (d) of this section. (d) A person sentenced to imprisonment, or to commitment pursuant to § 24- 903, under this section may receive good time credit toward service of the sentence only as provided in 18 U.S.C. § 3624(b). (d-1)(1) A person sentenced to imprisonment under this section for a nonviolent offense may receive up to a one-year reduction in the term the person must otherwise serve if the person successfully completes a substance abuse treatment program in accordance with 18 U.S.C. § 3621(e)(2). (2) For the purposes of this subsection, the term "nonviolent offense" means any crime other than those included within the definition of "crime of violence" in § 23-1331(4). (e) The sentence imposed under this section on a person convicted of assault with intent to commit first or second degree sexual abuse or child sexual abuse in violation of § 22-401, or of armed robbery in violation of § 22-4502, shall be not less than 2 years if the violation occurs 37

after the person has been convicted in the District of Columbia or elsewhere of a crime of violence as defined in § 22-4501, providing for the control of dangerous weapons in the District of Columbia. The sentence imposed under this section on a person convicted of first or second degree sexual abuse or child sexual abuse in violation of § 22-3002, § 22-3003, or § 22-3008 through § 22-3010, shall not be less than 7 years if the violation occurs after the person has been convicted in the District of Columbia or elsewhere of a crime of violence, as so defined. (f) The sentence imposed under this section shall not be less than 1 year for a person convicted of: (1) Assault with a dangerous weapon on a police officer in violation of § 22-405, occurring after the person has been convicted of a violation of that section or of a felony, either in the District of Columbia or in another jurisdiction; (2) Illegal possession of a pistol in violation of § 22-4503, occurring after the person has been convicted of violating that section; or (3) Possession of the implements of a crime in violation of § 22-2501, occurring after the person has been convicted of a violation of that section or of a felony, either in the District of Columbia or in another jurisdiction.

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CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Brief has been served, by hand, upon Roy W. McLeese, Esq., Chief, Appellate Division, Office of the United States Attorney, 555 Fourth Street, N.W., Room 8104, Washington, D.C. 20530, this 20th day of June, 2007.

___________________________ James Mangiafico

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