UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

v. Criminal No. 19-251 (RDM) ANDRA L. VANCE,

Defendant.

MEMORANDUM OPINION AND ORDER

Defendant Andra L. Vance was charged by indictment with two counts of Deprivation of

Rights Under Color of Law, in violation of

. Dkt. 1. Count One alleges that

Vance struck Darrell Craig “with a baton multiple times on the head without legal justification,”

while Count Two alleges that Vance “used his baton to choke [Craig] without legal justification,

while [Craig] was on the ground.”

at 1–2. After a six-day jury trial on these charges, the jury

began its deliberations on November 9, 2022. Min. Entry (Nov. 9, 2022). The next day, the jury

wrote the Court a note, asking: “Is there a legal definition of choking?” Dkt. 158 at 2 (jury note).

After hearing argument from the parties, the Court instructed the jury as follows: “No, the

relevant law does not define choking. The jury should give that term its ordinary meaning, as the

jury understands it.”

(Court response).

Vance now asks the Court to reconsider its response to the jury question and requests that

the Court provide the jury with a dictionary definition of “choke” that a Magistrate Judge in the

Eastern District of Michigan referenced in a report and recommendation on a motion for

summary judgment in a § 1983 excessive-force case. Dkt. 160; see Robinson v. Chapko, 20-cv-

10499,

, at *5 (E.D. Mich. Oct. 29, 2021). For the reasons stated below, the

Court will deny Vance’s motion.

1 Vance asserts that the Court denied his initial request to provide the jury with a dictionary

definition of “choke” because “Vance’s propos[ed] [instruction] was . . . too favorable towards

Mr. Vance.” Dkt. 160 at 2. That assertion misstates the Court’s ruling. The Court expressed

concern not that Vance’s proposed instruction was too favorable to the defense, but rather that

different dictionaries would provide “different . . . definitions”—some more favorable in their

emphasis than others—of a term that, ultimately, is “not defined in the law.” Trial Tr. 17 (Nov.

10, 2022). Although the word “choke” does, as the Court explains in greater detail below, have

a familiar meaning that is readily understood by persons lacking special training or expertise, the

process of choosing between dictionary definitions risks emphasizing one aspect of that meaning

over others; it also risks suggesting to the jury that the Court believes that a particular emphasis

is warranted based on the facts of the case. In light of these considerations and, most

significantly, the limited nature of the jury’s question—which asked only whether there was a

“legal definition of choking,” Dkt. 158 at 2—the Court concluded that “what matters here for

present purposes is . . . [the] ordinary and common understanding . . . of the term,” which the

jury is best equipped to determine. Trial Tr. 24 (Nov. 10, 2022).

In his motion for reconsideration, Vance again asks the Court to provide the jury with a

dictionary definition of “choke,” a term that he argues is not “within the common knowledge of

the jury.” Dkt. 162 at 3. But his argument ignores the jury’s question, which asked only whether

there is a “legal definition” of the term. Dkt. 158 at 2. Vance points the Court to no such legal

definition, relying—at most—on a dictionary definition that a different court referenced in the

context of deciding a civil excessive-force inquiry. Dkt. 160 at 1 (citing Robinson,

). As the D.C. Circuit has explained, a district court may, in response to a jury question,

“limit its response to [accurately] answering the jury’s question,” without expanding its answer

2 “beyond the limits of the jury’s request for clarification.” United States v. Laing,

(D.C. Cir. 1989). The answer previously given—which responds directly to the jury’s

question and instructs them, in a limited fashion, that there is no “legal definition” of the term

“choke”—is, therefore, sufficient.

To be sure, a judge must “instruct the jury clearly and fully[] on the principals of law that

apply to and govern the case on trial,” including on the “essential elements of the offense” and

“words and phrases having technical meanings”—at least where those words and phrases appear

in the language of the statute. United States v. Maude,

(1973) (internal

quotation marks omitted); see also United States v. Robinson,

(10th Cir.

2006) (collecting cases from the First, Seventh, Eighth, Ninth, and Tenth Circuits that support

the notion that “[a] district court need not define a term when its use in jury instructions

comports with its ordinary meaning” (internal quotation marks omitted)). Here, of course,

“choking” is not an element of a charge brought under

. Rather, the word was

included in the indictment to describe the charge that the grand jury authorized the government

to bring and to provide fair notice to Vance of that charge. As the D.C. Circuit has explained,

“a[n] amendment [to an indictment] is thought to be bad because it deprives the defendant of his

right to be tried upon the charge in the indictment as found by the grand jury,” while “[a]

variance is thought to be bad because it may deprive the defendant of notice of the details of the

charge against him and protection against reprosecution.” United States v. Lorenzana-Cordon,

(D.C. Cir. 2020) (internal quotation marks omitted). There is no reason to believe

that either of these purposes requires giving the word “choke” a technical or obscure meaning; to

the contrary, the best way to serve both purposes is to give the term its ordinary, common-sense

meaning.

3 Moreover, even if “choking” were an element of the offense at issue, Vance’s argument

would still be unavailing. Like the terms “home,” “arrange,” “induce,” “possess” “conceal,” and

“business”—which the D.C. Circuit approvingly cited as examples of words “readily

comprehended by persons of ordinary intelligence,” Maude,

& n.98—the term

“choke” is both familiar as a matter of common usage and is, in this case, “applied . . . in [its]

conventional sense,”

. The key point is that jurors can (and should) rely on the word’s

“widely accepted and familiar meaning,”

, rather than needing a specific technical or

legal definition, cf. Miller v. Neathery,

(7th Cir. 1995) (concluding that failure

to define “recklessly” in the instructions was error because it is an “enigmatic term” to which

both “lawyers and lay persons alike find it difficult to ascribe a precise meaning”). That the

government has not identified a specific case for the proposition that the word “choking” is a

word “within the common knowledge of the jury,” Dkt. 162 at 3, does not change that

conclusion. Indeed, neither party has identified any case that is on point—presumably because

the issue has not previously come up in any federal case. 1 Nor is that absence of precedent

surprising, given the fact that the word “choke” does not appear in any federal criminal statute

and that, in any event, jurors are eminently capable of giving the word its familiar, everyday

meaning. The jury’s query whether the term has a “legal definition” did not signal a lack of

1 The only case that either party cites that even arguably addresses the issue is a decision from the Superior Court of the Virgin Islands, where the court rejected the defendant’s contention that it had erred when it “did not provide the jury with a definition for the term ‘choke.’” People v. Robles, 14-cr-24,

, at *3 (V.I. Super. Ct. Sept. 11, 2017). That decision, however, sheds little light on the question presented here because the word “choke” was used only in testimony, and the defendant simply argued that the jury lacked a basis to connect that testimony with “strangulation,” which was charged.

That argument failed for reasons unrelated to the question presented here; it failed because the witness “did not use the term ‘choke’ as a synonym for the term ‘strangle’ at trial.”

4 understanding of ordinary usage but, rather, understandable uncertainty regarding the relevant

law.

It is, accordingly, ORDERED that Defendant’s motion for reconsideration, Dkt. 160, is

DENIED.

SO ORDERED.

/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge

Date: November 16, 2022

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