UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v. Criminal Action No. 18-198 (JEB)

DARIN C. MOORE, JR., et al.,

Defendants.

MEMORANDUM OPINION

On November 1, 2022, a jury found Defendants Darin C. Moore, Jr., Gabriel Brown,

John Nikea Sweeney, and James Thomas Taylor guilty of two counts arising from the abduction

and murder of a Maryland man (kidnapping resulting in death and felony murder). The jury also

convicted all but Taylor of two additional counts (conspiracy and first-degree murder). Brown

and Taylor now move for a new trial, and Brown also seeks a judgment of acquittal. The Court

will deny the Motions.

I. Background

On June 19, 2018, Andre Carlos Simmons, Jr., was kidnapped and held for ransom before

being killed in the early hours of June 20. The Government charged all four Defendants with

four counts arising from those events: Kidnapping Resulting in Death, in violation of

(a)(1)–(2) (Count I); Conspiracy to Commit Kidnapping, in violation of

(c) (Count II); First-Degree Murder While Armed, in violation of

,

22-4502, 22-2104.01(b)(1), and 22-1805 (Count III); and Felony Murder While Armed, in

violation of

, 22-4502, 22-2104.01(b)(1), and 22-1805 (Count IV). See

ECF No. 41 (Superseding Indictment) at 2–6; see also Minute Entry of Sept. 1, 2022.

1 Trial began on September 19, 2022, and the presentation to the jury lasted nearly six

weeks. See Minute Entry of Sept. 19, 2022; Minute Entry of Oct. 20, 2022. The Government’s

evidence with respect to Brown showed that he helped plan the abduction; participated in a string

of phone calls with the other Defendants during the hours Simmons was held; collected ransom

money from Simmons’s family while on a phone call with other Defendants, who were calling

the family and demanding money; and met up with the others afterwards to split the proceeds.

See generally ECF No. 354 (Gov’t Opposition) at 7–8 (summarizing evidence presented at trial).

As to Taylor, the evidence established that his phone communicated with Simmons’s family to

demand ransom money; he coordinated with the other Defendants to carry out the kidnapping; he

participated in transporting Simmons to the location where he was killed; and he also met up

with the others afterwards to divide the ransom money. See generally

(discussing Taylor’s

involvement); Oct. 19, 2022, Tr. at 64–73 (summarizing evidence of his involvement).

Following deliberations, the jury convicted Moore, Brown, and Sweeney of all four

counts; it convicted Taylor of just the first two (kidnapping resulting in death and felony

murder). See ECF No. 327 (Verdict Form). Brown has now filed a Motion for Judgment of

Acquittal or New Trial; Taylor has also moved for a new trial. See ECF Nos. 338 (Taylor

Motion for New Trial); 339 & 341 (Brown Motion for Acquittal or New Trial). The Court

decides those Motions together here.

II. Legal Standard

Federal Rule of Criminal Procedure 29(c)(1) provides that “[a] defendant may move for a

judgment of acquittal, or renew such a motion, within 14 days after a guilty verdict or after the

court discharges the jury, whichever is later.” When considering such a motion, the Court must

“consider[] the evidence in the light most favorable to the government” and uphold a guilty

2 verdict if “any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” United States v. Wahl,

(D.C. Cir. 2002). Put another way,

the Court must determine whether “a reasonable juror must necessarily have had a reasonable

doubt as to the defendants’ guilt.” United States v. Weisz,

(D.C. Cir. 1983).

Federal Rule of Criminal Procedure 33(a), in turn, provides that “the court may vacate

any judgment and grant a new trial if the interest of justice so requires.” “Trial courts enjoy

broad discretion in ruling on a motion for a new trial.” United States v. Wheeler,

(D.C. Cir. 2014). This is true in part because “[t]he rules do not define ‘interests of justice’

and courts have had little success in trying to generalize its meaning.”

(citation and internal

quotation marks omitted). At bottom, the D.C. Circuit counsels that “granting a new trial motion

is warranted only in those limited circumstances where a serious miscarriage of justice may have

occurred.”

(citation and internal quotation marks omitted). This Court nonetheless believes

that a clearly erroneous and prejudicial jury instruction could well necessitate a new trial. Cf.

United States v. Vicaria,

, 198–99 (11th Cir. 1994) (holding that district court did not

abuse its discretion in granting new trial after concluding that it had erroneously omitted

particular jury instruction); United States v. Adams,

(D.D.C. 2015).

III. Analysis

The Court first analyzes Brown’s Motions and then turns to Taylor’s.

A. Brown

Brown’s principal challenge — in seeking a judgment of acquittal or a new trial — is to

his conviction on Count I, for kidnapping that resulted in death in violation of

.

He offers three prongs of attack.

3 First, he contends that the Court’s jury instruction regarding Count I was deficient and so

requires a new trial. See Brown Mot. at 3–4. With respect to this offense, the Court instructed

the jury that “there must be a causal relationship between the kidnapping and the death, and the

Government must prove beyond a reasonable doubt that, but for the Defendant’s actions, Mr.

Simmons would not have died.” Oct. 19, 2022, Tr. at 5, 25–26. Brown argues that the Court

should have additionally instructed the jury that “it must find that Mr. Brown intended that death

resulted” — i.e., adding an intent element. See Brown Mot. at 4.

This is not the law. Defendant cites no cases in which courts have required that the

Government prove a defendant intended the resultant death under

. Indeed, the

Government identifies several cases where courts have held that statutes using such “death

results” language do not require a showing of intent. See Gov’t Brown Opp. at 5 (citing United

States v. Barraza,

(8th Cir. 2009); United States v. Woodlee,

(10th Cir. 1998); and other district-court decisions). Defendant points only to cases

presenting the general principle that mens rea is typically required for each element in a criminal

act. See Brown Mot. at 4. But the Government correctly responds that here that principle bows

to the more specific notion, articulated by the Supreme Court, that criminal statutes are often

designed to ratchet up punishment based on “the unintended consequences of [a defendant’s]

unlawful acts.” Gov’t Brown Opp. at 6–7 (quoting and discussing Dean v. United States,

, 570–76 (2009)). All told, then, Defendant cites no caselaw for his argument, and his

reliance on background statutory principles fails to carry the day.

Second, Brown argues that the Government presented insufficient evidence on this count,

thus meriting a judgment of acquittal (or at least a new trial). See Brown Mot. at 4–5. But the

Government introduced ample evidence at trial connecting him to the kidnapping that resulted in

4 Simmons’s death. This evidence included Brown’s communications with Sweeney, Moore, and

Taylor before, during, and after the abduction; video and forensic evidence indicating Brown’s

involvement in retrieving the ransom money; and their meeting up after the murder. See Gov’t

Brown Opp. at 8 (canvassing evidence). Based on that evidence, a reasonable jury could

conclude that Brown actively participated in the kidnapping from which Simmons’s death

resulted. Given that evidence, moreover, a jury certainly could have convicted Brown on an

aiding and abetting theory of liability. To the extent Defendant’s argument is that the

Government needed to prove that he “participated in the killing” or “knew that a killing would

take place,” Brown Mot. at 4, the Court reiterates that this is not the standard: as discussed, the

Government needed only to prove that Brown participated in the kidnapping that resulted in

Simmons’s death.

Third, Defendant maintains that there was insufficient evidence that he aided and abetted

with respect to the “death resulted” element. Id. at 5. His entire argument is that no evidence

showed that the kidnapping was “designed to culminate in death” or that Brown “had any

advance notice of such a plan.” Id. Again, however, there is no mens rea requirement for the

resulting-in-death element. Because a principal need not have specific intent that death result

under

, an aider and abettor need not either. See United States v. Simpson,

(8th Cir. 2022). And there certainly is sufficient evidence that Brown aided

and abetted the kidnapping by collecting ransom money while the other Defendants held

Simmons and contacted his family. See Gov’t Brown Opp. at 8.

Brown briefly raises two cursory arguments for vacating his convictions, both of which

fall short as well. He first asserts that the Government’s rebuttal closing “improperly attacked

the credibility of counsel” and mischaracterized cell-phone and DNA evidence. See Brown Mot.

5 at 5–6. Brown does not identify specific transcript quotations that he finds problematic, nor

could he: as the Government’s Opposition details, the prosecution engaged in no such attacks

and fairly characterized the cell-site, DNA, and text evidence. See Gov’t Brown Opp. at 13–15;

Oct. 20, 2022, Tr. at 43–44; see also id. at 70 (Court describing why Government DNA argument

was proper). Finally, Defendant summarily notes that “[t]he Court erred in denying the motions

for mistrial and the evidentiary and instructional requests that Mr. Brown sought pretrial and

during trial.” Brown Mot. at 6. This assertion identifies no specific errors in any of the Court’s

rulings and cites nothing for support. The Court accordingly will deny Brown’s Motions for a

Judgment of Acquittal and for a New Trial.

B. Taylor

Taylor raises three grounds for a new trial, which the Court will consider in turn.

Voice Identification

His first argument relates to Special Agent Riley Palmertree’s identification of Taylor’s

voice on one of the ransom calls. To understand the nature of his position, a summary of the

way in which that evidence came to light is helpful. According to Taylor, the Government made

“affirmative representations” in the period leading up to trial that his voice had not been

identified on any of the ransom calls. See Taylor Mot., ¶¶ 5–6. He and his counsel would soon

learn, however, that this was not the case. Although the Government did not raise the issue on

direct, during cross-examination, Taylor’s counsel asked Palmertree if he had “recognize[d] Mr.

Taylor’s voice in the ransom calls,” expecting him to respond that he had not. See Oct. 11, 2022,

P.M. Tr. at 75. Instead, Palmertree stated that he had indeed heard a voice that “sound[ed]” like

Taylor’s on one of the calls. Id.

6 Taylor’s counsel were understandably caught off guard by this response. At a recess,

counsel complained that they felt they had walked into a sort of trap set by the Government and

accused it of “sandbagging to a new level.” Oct. 12, 2022, A.M. Tr. at 49. Had they known

about this alleged identification, they explained, they would not have asked the agent about it.

The Government, for its part, denied any impropriety. It explained that because it had not been

planning to elicit that testimony from Palmertree, it had no obligation (and felt no need) to

disclose it. Id. at 17. That the evidence came out during cross-examination was thus entirely the

fault (or responsibility) of defense counsel’s decision to ask an ill-fated question. Id. at 20

(AUSA Wasserman: “Mr. Enzinna is the one who went down this pathway without knowing the

answer to the question that he was asking.”).

With the stage now set, the Court can turn to Taylor’s challenge, which appears to target

two forms of alleged Government misconduct: first, its failure to disclose the existence of this

critical piece of evidence to the defense; and second, its decision to go one step further and make

affirmative misrepresentations about such evidence, which ultimately walked the defense into a

trap.

The first allegation is easily dealt with. The parties agree that the prosecution had no

intent to use Palmertree’s identification as evidence in the trial. As the Government correctly

asserts, Taylor does not — indeed, cannot — cite any authority that would require it “to advise

the defense of an inculpatory identification that it was not intending to elicit.” ECF No. 353

(Gov’t Taylor Opp.) at 3. For example, Taylor understandably does not suggest that the

identification was exculpatory evidence subject to Brady (it plainly was not) or otherwise subject

to disclosure under the Jencks Act, where Palmertree testified that he had never written down his

conclusion about the voice anywhere. Id.; Oct. 11, 2022, P.M. Tr. at 76–77. The Government

7 thus had no independent duty to disclose the identification, and so its failure to do so does not

justify granting a new trial.

The Court is more sympathetic, however, to Defendant’s second allegation. If Taylor’s

counsel is correct that the Government affirmatively represented prior to trial that “no one has

identified Mr. Taylor’s voice on the ransom calls at all,” Oct. 12, 2022, A.M. Tr. at 52, one could

“certainly see [why] the defense [felt] sandbagged” by Palmertree’s revelation. Id. at 53. To be

sure, the Government has a partial explanation for its conduct: those representations were made

in 2019, years before the trial and before Palmertree had an opportunity to familiarize himself

with Taylor’s voice and with the ransom calls. Id. at 20–21. It was not until “shortly before the

trial” that Palmertree “advised that he recognized Mr. Taylor’s voice.” Id. at 21. But as this

Court asked the Government: “[T]hat representation . . . may have been correct at the time[,] but

. . . don’t you have the obligation to clarify when you come across newer information?” Id. at

52. The answer — and this Court would agree with Defendant on this — is yes.

Where the Court diverges with Taylor is on the question of whether the Government’s

conduct justifies a new trial. It does not. To begin, in the context of Palmertree’s testimony, the

evidence packed little punch. Taylor’s counsel spent substantial time on cross-examination

successfully impeaching Palmertree’s testimony, including by eliciting his admission that he

could not remember writing down his identification anywhere or telling anyone about it at the

time. See Oct. 11, 2022, P.M. Tr. at 76–77; see also Oct. 12, 2022, A.M. Tr. at 54 (“Mr. Enzinna

. . . has certainly raised some potential credibility issues with the jury based on Palmertree’s

response.”); cf. id. at 47 (Government noting that cross-examination was misleading because

Taylor’s counsel played a call that was not the call on which Taylor was identified, leading jury

to think identification was inaccurate).

8 The Court then took steps to prevent the Government from benefiting from Palmertree’s

identification. Most significantly, the Government was barred from questioning him about the

identification on redirect, despite its insistence that redirect was necessary to restore the agent’s

credibility. See Oct. 12, 2022, A.M. Tr. at 23, 54–55. In addition, for closings, the Court — in

consultation with defense counsel and with their agreement — permitted the Government only to

(a) invite the jury to make its own judgment about the identification by comparing a particular

ransom call to a recorded jail call between Taylor and another individual; and (b) repeat

Palmertree’s testimony that the voice he heard “sound[ed] like James Taylor.” Oct. 18, 2022,

P.M. Tr. at 107–11 (emphasis added). The Government’s closing argument stayed within those

parameters. See Oct. 19, 2022, Tr. at 109. The Court, moreover, acceded to Taylor’s request

that his counsel be allowed to argue in closing that “[Palmertree] said he never wrote [his

identification] down,” despite the Government’s protest that it was not permitted to clarify that

part of his testimony on redirect. See Oct. 18, 2022, P.M. Tr. at 110–11.

Beyond these prophylactic measures, given the substantial other evidence linking Taylor

to the crime, the identification of his voice (even if believed) was merely another brick in the

Government’s evidentiary wall. See, e.g., Oct. 19, 2022, Tr. at 52–53 (summarizing evidence

connecting Taylor to related home invasions); id. at 64–65 (summarizing evidence that ransom

phone, which belonged to Taylor, was in Benning Park with abduction car after kidnapping); id.

at 77 (evidence that Taylor was with Brown in car used for kidnapping the morning of murder);

id. at 81–86 (evidence that Taylor possessed ransom phone at relevant times). Indeed, in its

closing, the Government was explicit that the evidence was clearly sufficient for a jury to convict

Taylor even without believing that his voice was on any of the ransom calls. Id. at 86 (“While it

is entirely possible that James Taylor’s voice is one of [the] voices [on the ransom calls], and I

9 encourage you to listen closely to [them], ultimately you need not determine whether his voice is

on the ransom calls to determine that he was in possession of this phone at times during the

kidnapping and murder and was a participant in the kidnapping over the course of the evening.”).

In sum, while the Government’s approach to the Palmertree identification may have been

problematic, the error it engendered was harmless, particularly given the Court’s limiting of the

Government’s use of the identification.

DNA Evidence

Taylor next contends that the Government erroneously argued in its rebuttal closing that

the DNA of all four Defendants was found in the kidnapping car (the Maxima), even though that

was not true of him. See Taylor Mot., ¶¶ 9–10. It does not help his position that he pinpoints no

specific language in that closing to support this argument. Id. In any event, the Court disagrees

with his characterization.

The Government was forthcoming throughout the trial about the fact that Taylor’s DNA

was not found in the Maxima. Consider the following relevant excerpts from the rebuttal. The

Government at one point referred to “[t]he presence of DNA of Darin Moore, Gabriel Brown and

John Sweeney on multiple items taken from . . . the Maxima,” omitting Taylor’s name from the

list. See Oct. 20, 2022, Tr. at 63. It also acknowledged that “Mr. Taylor’s counsel . . .

emphasized the DNA and fingerprints results that either excluded him or favored exclusion” and,

contrary to Taylor’s suggestion, did not deny or dispute those results. Id. at 57. Instead, it

encouraged the jury to consider other evidence showing that Taylor was in the Maxima on the

night in question, including a video that depicted him getting out of the car at a local

convenience store soon after the murder. Id. (“But we know that he was in the Maxima from the

Lucky Mart video.”). The Government also sought to explain, rather than deny, the lack of

10 Taylor’s DNA and fingerprint evidence in the car. For example, it referred back to the DNA

analyst’s testimony that “[y]ou don’t always leave a [DNA] trace” or “fingerprints of value.” Id.

at 58.

The transcript of the rebuttal thus confirms the Government’s assertion that it “never

argued either overtly or impliedly that Taylor’s DNA or fingerprints were found on any evidence

in the case.” Gov’t Taylor Opp. at 6. The Court concludes that the DNA issue is not grounds for

a new trial.

Dumbuya’s Involvement

Finally, Taylor asserts that the Government improperly concealed the existence of a fifth

co-conspirator and friend of Moore’s, Phillip Dumbuya, until closing argument. See Taylor

Mot., ¶ 11. Had Taylor been timely informed of Dumbuya’s possible connection to the crime,

the Motion continues, he could have fashioned a defense that “the role that the Government

alleged was carried out by [him] was, in fact, carried out by Mr. Dumb[u]ya.” Id., ¶ 12. The

Government counters that “the record is clear that the defendants were on notice of Dumbuya’s

involvement more than two years before trial.” Gov’t Taylor Opp. at 9. This is correct.

In June 2020, the Government filed a Supplemental Conspiracy Notice explaining,

among other things, that Moore and Dumbuya had communicated about efforts to target

Simmons. Id.; ECF No. 145 (Supplemental Conspiracy Notice) at 17–20. The Notice included

transcripts of text messages between the two men. See Supp. Notice at 18–20. If that were not

enough, Moore filed a Motion in Limine to exclude those text messages, see ECF No. 176

(Moore MIL), which the Government opposed in part on the ground that Dumbuya’s statements

would be “admissible as admissions of a co-conspirator.” ECF No. 179 (Opp. to MIL) at 7

(emphasis added). This Court then issued an Opinion on the Motion, which referenced the

11 Government’s invocation of the “co-conspirator-statement exception.” ECF No. 189 (Op. on

Taylor/Moore Mots.) at 11.

In that context, it is “inconceivable” that Taylor was unaware of Dumbuya’s role until

closing arguments. See Gov’t Taylor Opp. at 10. The Court thus concludes that Taylor’s third

ground for a new trial carries him no farther than the first two.

IV. Conclusion

For the foregoing reasons, the Court will deny Brown’s Motions for Judgment of

Acquittal and for a New Trial and Taylor’s Motion for a New Trial. A separate Order so stating

will issue this day.

s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: January 27, 2023

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