United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 9, 2015 Decided July 28, 2015

No. 08-3037

UNITED STATES OF AMERICA,

APPELLEE

v.

GREGORY BELL, ALSO KNOWN AS BOY-BOY, ALSO KNOWN AS 

BUNGA,

APPELLANT

Consolidated with 11-3032

Appeals from the United States District Court

for the District of Columbia

(No. 1:05-cr-00100-2 and -3)

Sicilia C. Englert and Robert S. Becker, appointed by the 

court, argued the causes for appellants. With them on the joint 

briefs was Michael E. Lawlor, appointed by the court.

James M. Perez and Stratton C. Strand, Assistant U.S. 

Attorneys, argued the causes for appellee. With them on the 

briefs were Ronald C. Machen Jr., U.S. Attorney, and 

Elizabeth Trosman and John P. Mannarino, Assistant U.S. 

Attorneys. Elizabeth H. Danello, Assistant U.S. Attorney, 

entered an appearance.
2

Before: HENDERSON, BROWN and WILKINS, Circuit 

Judges.

Opinion for the Court filed by Circuit Judge BROWN.

Opinion dissenting in part and concurring in part filed by 

Circuit Judge WILKINS.

BROWN, Circuit Judge: “[L]ike a bad penny, it return[s] 

to [us] again.” Letter from Abigail Adams to Mary Smith 

(Oct. 6, 1766) (referencing unattributed aphorism). We 

revisit the Congress Park Crew (“Crew”), “a loose-knit gang 

that ran a market for crack cocaine in the Congress Park 

neighborhood of Southeast Washington, D.C., for nearly 

thirteen years.” United States v. Jones, 744 F.3d 1362, 1365 

(D.C. Cir. 2014). Previously, we affirmed the sentences 

imposed on three of six jointly-tried Crew members; two 

additional members now appeal: one challenging his

conviction and both challenging their sentences. We affirm 

the district court.

I

In 2005, eighteen Congress Park Crew members were 

indicted on various crimes including conspiracy and crack 

distribution. Eleven members pleaded guilty and one member 

was tried separately in 2006; the remaining six Crew 

members were tried together in 2007. In Jones we found the 

district court did not err in its sentencing of three of the 

jointly-tried Crew Members—Joseph Jones, Desmond 

Thurston, and Antwuan Ball. Id. at 1367–70. The present 

consolidated appeal concerns two additional Crew members 

tried in 2007—James Wilson and Gregory Bell (collectively 

“Defendants”). Wilson was convicted of two counts of aiding 
3

and abetting first-degree murder, seven counts of distributing 

crack cocaine, and one count of using a communications 

facility in relation to a narcotics offense. Bell was convicted 

of three counts of distributing crack cocaine. The Defendants 

were acquitted of a mélange of other charges including all 

narcotics and racketeering conspiracy charges and, in 

Wilson’s case, a third count of aiding and abetting murder. 

Wilson challenges his conviction at trial. He claims 

ineffective assistance of counsel based on substitutions of his 

defense attorneys, that two uncharged murders were

improperly admitted into evidence, and that the Government 

failed timely to produce pieces of exculpatory evidence in 

violation of Brady v. Maryland, 373 U.S. 83 (1963). Both 

Defendants also challenge the sentences imposed on them for 

crack cocaine distribution. We address each issue in turn.

II

Wilson’s most facially credible argument is that 

substitutions of trial counsel deprived him of effective 

representation. But we are ultimately unpersuaded by his

theory on appeal, which hinges on an extension of the 

doctrine of presumptive prejudice. 

A

The course of Wilson’s representation was marked by a 

number of substitutions of his lead and secondary courtappointed counsels.

1

 We summarize the substitutions most 

pertinent to the present appeal. In January 2007—

 1 Secondary counsel was appointed because the Government could 

seek the death penalty on certain charged offenses.
4

approximately two months prior to trial—Jenifer Wicks

assumed the role of lead counsel, after previously assisting as 

secondary counsel for several years. On February 5, 2007,

Gary Proctor was appointed to assist Wicks, and trial began 

on February 13, 2007. Approximately four months into trial, 

and shortly before the close of the Government’s case, Wicks 

was hospitalized then subsequently released with medical 

instructions to refrain from stressful work. In Wicks’s

prolonged absence Proctor filed a motion for mistrial or 

severance. Proctor asserted he was, in his view, unable to 

adequately represent Wilson because, inter alia, he had 

limited federal trial experience2 and had missed significant 

portions of the Government’s case at trial, amounting to 

approximately one third of the Government’s case by 

Proctor’s unverified but uncontested estimation. 

The district court initially granted severance but the 

Government sought reconsideration, proposing a “brief 

continuance[,] . . . a week or two, to allow Mr. Proctor to get 

up to speed,” before allowing the Government “to finish its 

five to six days or so of its case,” then a longer continuance 

(“a month and a half”), to provide Proctor time to prepare 

Wilson’s case in defense. J.A. 3383–84. Finding the 

Government’s proposal “eminently fair,” J.A. 3386, the 

district court reversed its earlier grant of severance. 

Secondary counsel3 was appointed to assist Proctor in his new 

 2 Proctor did, however, possess considerable state trial experience, 

including participating, by his own estimate, in “perhaps” a dozen 

death penalty cases in five states. He also served as a second chair 

in a prior federal criminal trial. 

3 Matthew Davies was appointed on June 28. The court recessed 

until July 9. The Government concluded its case on July 17. The 

court recessed again until August 21. See J.A. 3408, 3215.
5

role as lead counsel, and trial resumed in general accordance 

with the Government’s proposal. 

Proctor represented Wilson as lead counsel through the 

remainder of trial arguments. Although the dissent assumes 

Wicks’s departure from the case robbed the defense of the 

benefits of her prior work, Proctor’s ability (or inability) to 

directly consult with Wicks, in preparing and conducting 

Wilson’s defense at trial, is sparsely developed in the record 

before us. But see J.A. 3417 (indicating Wicks had at least 

some capacity to accept telephone calls, albeit without

providing insight into the extent of her availability or to what 

extent Proctor or Davies employed Wicks as a resource), 3486 

(Proctor noting he “dragged Ms. Wicks out of retirement one 

more time,” to be present in the courtroom during his closing 

arguments).

4

B

Despite being acquitted on a number of serious 

offenses—including counts of aiding and abetting murder, 

 4 The dissent suggests there is no reasonable expectation that Wicks 

could significantly assist in the defense, based on her doctor’s 

orders. See Dissenting Op. at 18 n.2. Wicks’s doctor’s instructions 

make clear Wicks “need[ed] to be off work for . . . 2 weeks 

[following her hospitalization] and [could] not return to trial work 

for [an] additional 6 months.” J.A. 739. But we do not find these 

instructions sufficient to determine Wicks’s unavailability to 

consult with Proctor, except perhaps in the two weeks immediately 

after her hospitalization. See also J.A. 3399 (“A fair reading of that 

letter . . . is that after two weeks or so time, Ms. Wicks is available 

in some capacity, whether it’s assisting, writing direct exam 

outlines, preparing witnesses in her office, consulting, doing 

something along those lines.”). 
6

assault with intent to murder, and RICO and narcotics

conspiracy—Wilson asserts Proctor’s representation fell 

below the minimum threshold of professional competence 

required by the Sixth Amendment. See generally Strickland 

v. Washington, 466 U.S. 668 (1984). Rather than identifying 

deficiencies in Proctor’s actual representation and then 

arguing prejudice under Strickland’s two-part test, see id. at 

687–88, Wilson argues Proctor’s representation was 

presumptively unreliable. 

In United States v. Cronic the Supreme Court identified 

three “circumstances that are so likely to prejudice the 

accused that the cost of litigating their effect in a particular 

case is unjustified.” 466 U.S. 648, 658 (1984). See also

Woods v. Donald, 135 S. Ct. 1372, 1378 (2015) (reiterating 

that Cronic applies only in such circumstances). “Most 

obvious, of course, is the complete denial of counsel.” 

Cronic, 466 U.S. at 659. The Court also recognized the 

presumption in the constructive absence of counsel, “if 

counsel entirely fails to subject the prosecution’s case to 

meaningful adversarial testing,” or where “[c]ircumstances 

. . . [are] present . . . [such that] although counsel is available 

to assist the accused during trial, the likelihood that any 

lawyer, even a fully competent one, could provide effective 

assistance is so small that a presumption of prejudice is 

appropriate without inquiry into the actual conduct of the 

trial.” Id. at 659–60.

Courts have limited Cronic to “a very narrow range of 

situations.” United States v. Hughes, 514 F.3d 15, 18 (D.C. 

Cir. 2008); United States v. Thompson, 27 F.3d 671, 676 

(D.C. Cir. 1994). For example, Cronic is only applicable for 

failure to test a prosecutor’s case where “the attorney’s failure 

. . . [is] complete,” Hughes, 514 F.3d at 18; the presumption is

“reserved for situations in which counsel has entirely failed to 
7

function as the client’s advocate.” Florida v. Nixon, 543 U.S. 

175, 189 (2004). Compare Burdine v. Johnson, 262 F.3d 336, 

349 (5th Cir. 2001) (unconscious attorney presumptively 

prejudicial, if unconscious during a critical stage of a 

proceeding), with Bell v. Cone, 535 U.S. 685, 696 (2002) (no 

presumptive prejudice where counsel “failed to mount some 

case for life after the prosecution introduced evidence in the 

sentencing hearing and gave a closing statement”) (internal 

quotation marks omitted); Cronic, 466 U.S. at 649–50 

(presumption inapplicable where a young attorney represented

a defendant in a complex mail fraud case, where the attorney 

specialized in real estate law, it was his first jury trial, and he

had twenty-five days to prepare versus the Government’s four 

and one-half years); Bellamy v. Cogdell, 974 F.2d 302, 303–

04 (2d Cir. 1992) (no per se prejudice where 71 year-old 

defense attorney suffered from a variety of physical ailments 

that left him “virtually incapacitated” and “at times” unable to 

concentrate, even where those incapacities led to the 

suspension of the attorney’s license shortly after the 

defendant’s conviction at trial). 

Wilson would have us extend Cronic to cases where a

substitution means at least one specific defense counsel was

not continuously present during each and every critical stage

of trial.

5

 In Wilson’s view, in cases where counsel is 

substituted, the duration of the continuance granted to allow 

substitute counsel to prepare is irrelevant. See Reply Brief for 

Appellant David Wilson at 7, United States v. Bell, No. 08-

 5 In this case, Proctor began his representation of Wilson prior to 

the commencement of trial. In this general sense, Proctor

represented Wilson continuously throughout the period of trial, but 

the crux of Wilson’s argument centers on parts of the trial—prior to 

Proctor’s assumption of the lead counsel role—where Wicks was 

present to represent Wilson but Proctor was absent. 
8

3037 (June 30, 2014) (“Wilson’s complaint is not that Proctor 

[] needed more time to prepare after Wicks became ill; 

Wilson’s argument is that an effective defense was impossible 

without Wicks.”). Because the issues are not factually 

developed on the record before us, Wilson’s theory of

presumptive prejudice cannot hinge on the substitute

counsel’s inability to consult with his predecessor or on prior 

counsel leaving no substantial trial notes or memoranda to 

assist in the defense.

6

The dissent focuses on concerns Wilson never raised—

either at trial or on appeal: (1) that the mid-trial substitution 

led to the irretrievable loss of Wick’s strategic consultations 

with him and (2) that Proctor could not begin his 

representation with the same well-developed rapport. But, 

since the Sixth Amendment does not guarantee representation 

by a single counsel or a meaningful relationship with counsel, 

Morris v. Slappy, 461 U.S. 1, 19-19-20 (1983), the fact that 

Proctor could not replicate the exact depth of relationship 

Wilson enjoyed with Wicks—even if true—cannot be the 

basis of a presumption of prejudice.

Further, the record is inconclusive as to whether Proctor 

had access to a paralegal who was present for the entire trial

and could foster continuity for the defense team after the midtrial substitution. See J.A. 3381 (the Government arguing that 

Proctor was “not truly alone,” in part, because “Ms. Wicks 

ha[d] a paralegal who’s been very involved in the case, [and 

 6 Although we do not know for certain, Proctor would at least 

potentially have had access to any notes or memoranda Wicks may 

have left behind, as he had access to Wicks’s office and records 

after her hospitalization. J.A. 3379 (“I spent half of Friday and 

most of Saturday in [Wicks’s] office just physically trying to figure 

out where everything is.”).
9

who] certainly must know the files”). Wilson does not point 

to anything in the record to adequately and concretely

demonstrate that Proctor’s lead counsel representation began

from a completely blank slate. We decline to presume such 

facts from an underdeveloped record, particularly where—as 

here—no other party would have been better situated than 

Wilson to inform the court of any limitations. 

Wilson analogizes Proctor to an errant defense counsel

whose absence prevents him from “assess[ing] each piece of 

the government’s case[,] observ[ing] how it is received by the 

jury[,] assess[ing] how it fits into the larger picture of trial[,] 

and . . . choos[ing] what evidence to present in the defense[’s] 

case.” Id. at 9. To be sure the complete absence of any 

dedicated counsel for the accused, during a critical stage of a 

proceeding, would warrant Cronic’s presumption. See, e.g., 

United States v. Russell, 205 F.3d 768, 771–72 (5th Cir. 

2000); United States v. Decoster, 624 F.2d 196, 256 (D.C. 

Cir. 1976) (en banc) (“[W]here the defendant had no counsel 

at all at a critical stage of his trial, automatic reversal of his 

conviction is usually in order.”). But where counsel is 

substituted promptly, there is no impermissible gap in a

defendant’s representation. The identity of counsel has 

changed but at each critical stage a defense lawyer was 

present to actively subject the prosecution’s case to “the 

crucible of meaningful adversarial testing.” Cronic, 466 U.S. 

at 656. See Goodwin v. Johnson, 132 F.3d 162, 176 (5th Cir. 

1997) (“When the defendant receives at least some

meaningful assistance, he must prove prejudice in order to 

obtain relief for ineffective assistance of counsel.”) (emphasis 

added). Cf. Carroll v. Renico, 475 F.3d 708, 713 (6th Cir. 

2007) (finding the Supreme Court has not even clearly 
10

established whether a co-defendant’s counsel standing in for a 

defendant’s absent lawyer is presumptively prejudicial).7

The inquiry thus turns on whether substitution of counsel,

during the course of trial, is tantamount to a constructive 

absence of representation or is otherwise a circumstance 

where no “lawyer, even a fully competent one, could provide 

effective assistance.” Id. at 659–60. “The question is not 

whether counsel in those circumstances will perform less well 

than he otherwise would, but whether the circumstances are 

likely to result in such poor performance that an inquiry into 

its effects would not be worth the time.” Wright v. Van 

Patten, 552 U.S. 120, 125 (2008).

Mid-trial substitution may prove disruptive. Even 

following a continuance, a substitute defense counsel will

sometimes be disadvantaged by his absence from earlier 

proceedings. Indeed, best practice may favor allowing for a 

severance or mistrial where the prolonged illness or absence 

of a defense counsel would require substitution. But “best 

practice” is not the standard for constitutional deficiency. Nor 

does every disadvantage to the defense’s representation, 

however meagre, suffice to “infect[] [an] entire trial with error 

of constitutional dimensions.” United States v. Frady, 456 

U.S. 152, 170 (1982). See generally Harrington v. Richter, 

562 U.S. 86, 110 (2011) (the Sixth Amendment “does not 

guarantee perfect representation, only a ‘reasonably 

competent attorney’”).

 7 We do not opine on the propriety of such an arrangement, which 

other circuits—though not the Supreme Court—have suggested is 

improper. See, e.g., Olden v. United States, 224 F.3d 561, 569 (6th 

Cir. 2000). In the present case, despite substitutions, Wilson was 

always represented by attorneys dedicated to his defense.
11

Imaginative theorizing added to rampant conjecture 

augmented by inapposite examples does not a convincing case 

for Cronic’s categorical rule make. Prudence counsels only 

greater caution when called on to find constitutional 

inadequacy as a per se matter, particularly where the state of 

the record requires speculation as to deficiencies that may or 

may not have existed. In this case, even the particular days 

Proctor missed prior to the substitution is not beyond 

contention. See generally Government’s Brief at 25 & n.10, 

United States v. Bell, No. 08-3037 (June 30, 2014) (noting 

that Proctor’s estimate that he missed one-third of the trial 

was neither expressly endorsed by the court nor confirmed

below).

If any break in the continuity of counsel at trial were

sufficient to create a presumption of prejudice, even where a 

different attorney for the accused was present at critical stages 

missed by the substitute lead counsel, the Sixth Amendment’s 

guarantee would resemble less the assurance of “effective” 

representation and instead demand something closer to a 

“perfect” defense. While perfection may seem a laudable 

goal, this latter threshold of performance is not demanded by 

our Constitution. See United States v. Gonzalez-Lopez, 548 

U.S. 140, 147 (2006) (right to counsel guarantees “effective

(not mistake-free) representation”). Cf. Jackson v. Johnson, 

150 F.3d 520, 525 (5th Cir. 1998) (“A constructive denial of 

counsel occurs . . . in only a very narrow spectrum of cases 

where the circumstances leading to counsel’s ineffectiveness 

are so egregious that the defendant was in effect denied any 

meaningful assistance at all.”) (quoting Childress v. Johnson, 

103 F.3d 1221, 1229 (5th Cir.1997)).

Wilson emphasizes that, unless the lawyer assuming the 

lead counsel role was continuously present at trial prior to the 

substitution, he will have been unable to physically “observ[e] 
12

witnesses as they testify [or] . . . how the jury receive[d] the 

evidence” for any days missed. Brief for Appellant David 

Wilson at 35, United States v. Bell, No. 08-3037 (June 30, 

2014). Substitute lead counsel is instead left to review the 

trial transcript; evaluate notes or memoranda left by substitute

counsel’s predecessor; or engage in second-hand consultation 

with the former lead counsel, if available.

8

 

Review of the trial transcript or other records is, at times,

an imperfect substitute for being present. Indeed, courts often 

acknowledge that “a cold record cannot recreate testimony. A 

witness may be credible on paper but not on the stand.” 

Harvard v. Florida, 459 U.S. 1128, 1134 (1983).9 This does 

not mean, however, that it is impossible for an attorney to

 8 Although they do not specifically address mid-trial substitutions, 

ABA Guidelines on the performance of defense counsel in death 

penalty cases recommends counsel, and other members of the 

defense team, “maintain[] the records of [a] case in a manner that 

will inform successor counsel of all significant developments 

relevant to the litigation,” provide successor counsel with client 

files and all other information relevant to the representation, “share 

potential further areas of legal and factual research with successor 

counsel,” and cooperate with successor counsel’s “professionally 

appropriate legal strategies.” Am. Bar Ass’n, Guidelines for the

Appointment and Performance of Defense Counsel in Death 

Penalty Cases, 31 HOFSTRA L. REV. 913, 1074 (2003).

9 This maxim is frequently employed to rationalize the greater 

deference appellate tribunals grant trial judges when reviewing

issues of credibility. See, e.g., Anderson v. City of Bessemer City, 

N.C., 470 U.S. 564, 575 (U.S. 1985). Nonetheless, there is no per 

se rule against mid-trial substitution of judges. See United States v. 

Thomas, 114 F.3d 228, 254 (D.C. Cir. 1997) (“[T]he complexity of 

a case and the abundance of evidence typically determine the extent 

of the review necessary to familiarize a successor judge with the 

record . . . .”). See generally FED. R. CRIM. P. 25(a). 
13

make sound assessments of credibility in the absence of direct 

observation of trial testimony. Even if it does not perfectly

substitute for in-person observation, trial transcripts can

provide insight into issues of reliability. Inconsistent 

statements; defensive, evasive, or ambiguous answers; and the 

nature of follow-up questions asked may all offer a window

into the reliability of a witness’ comments and are frequently 

discernable based on a substitute counsel’s review of the 

transcripts alone, even assuming the absence of any trial notes 

or other commentary from the predecessor defense counsel. 

There may be cases where a defendant is constitutionally 

prejudiced by his substitute counsel’s inability to directly 

evaluate a critical witness’s demeanor at trial because, for 

example, prior counsel was unavailable to consult and left no 

material records or notes, the transcript of the witness’s

testimony was highly ambiguous, and the prosecution’s case 

significantly hinged on the particular witness’ recitation. But 

constitutional prejudice does not automatically flow in every 

case where counsel is substituted mid-trial.

10 See United 

States v. Griffiths, 750 F.3d 237, 239 (2d Cir. 2014) (per 

curiam) (“We hold that there is no per se violation of the 

Sixth Amendment right to be represented by one’s counsel of 

choice and to effective assistance of counsel when a district 

court, after defense counsel has become incapacitated, 

appoints counsel, over defendant’s objection, to deliver the 

defense summation, notwithstanding the fact that appointed 

counsel did not witness the presentation of the evidence.”).

 10 If we adopted Wilson’s theory, a mid-trial substitution would 

perhaps only be permitted if the substitute counsel was present 

during all critical stages prior to his substitution.
14

That a mid-trial substitution of counsel may potentially

increase the likelihood of strategic blunders by the defense 

does not invalidate the prudence of inquiring whether, in a 

given case, mistakes of constitutional dimension were 

actually made. Cf. Childress, 103 F.3d at 1229 (“[W]e have 

consistently distinguished shoddy representation from no 

defense at all. . . . [B]ad lawyering, regardless of how bad, 

does not support the [per se] presumption of prejudice under 

Cronic.”).11 A challenge to the mid-trial substitution of 

Proctor calls for “precisely the type of probing and fact-

 11 In some cases, it may prove challenging to show precisely how a

substitution of counsel affected the course of performance—a factor 

that we have, at times, considered relevant in other contexts. E.g.,

United States v. Gonzalez-Lopez, 548 U.S. 140, 150 (2006) 

(recognizing a limited right to counsel of choice, where counsel is 

not appointed). But the challenge of divining how substitutions 

affected the course of a proceeding are not different in kind from 

other circumstances where Strickland governs. See, e.g., Padilla v. 

Kentucky, 559 U.S. 356, 366 (2010) (indicating Strickland governs 

ineffectiveness claims based on acceptance of a plea bargain). Cf.

Strickland, 466 U.S. at 710 (Marshall, J., dissenting) (criticizing 

this aspect of the Strickland standard). Moreover, to say that a 

substitution of counsel affects the course of a trial is not the 

equivalent of saying the substitution rendered representation 

constitutionally ineffective. See Gonzales-Lopez, 548 U.S. at 150–

51 (“[T]he requirement of showing prejudice in ineffectiveness 

claims stems from the very definition of the right at issue; it is not a 

matter of showing that the violation was harmless, but of showing 

that a violation of the right to effective representation occurred. . . . 

[I]f and when counsel’s ineffectiveness ‘pervades’ a trial, it does so 

(to the extent we can detect it) through identifiable mistakes. We 

can assess how those mistakes affected the outcome.”). See also 

Strickland, 466 U.S. at 693 (majority opinion) (“Attorney errors 

come in an infinite variety and are as likely to be utterly harmless in 

a particular case as they are to be prejudicial.”).
15

specific analysis” that Strickland is designed to require. Sears 

v. Upton, 561 U.S. 945, 955 (2010) (per curiam). 

We decline to sweep virtually every mid-trial substitution 

under Cronic’s blanket rule. See generally Cronic, 466 U.S. 

at 659 n. 26 (“[T]here is generally no basis for finding a Sixth 

Amendment violation unless the accused can show how 

specific errors of counsel undermined the reliability of the 

finding of guilt.”); Appel v. Horn, 250 F.3d 203, 214 (3d Cir. 

2001) (“[T]he majority of Sixth Amendment right to counsel 

cases are, and should be, analyzed under the ineffective 

assistance standard of Strickland which requires a showing of 

prejudice.”). The Cronic inquiry is a largely mechanical one, 

and we are mindful of avoiding a holding that could open the 

door to replacing “case-by-case litigation over prejudice with 

case-by-case litigation over prejudice per se.” Scarpa v. 

Dubois, 38 F.3d 1, 14 (1st Cir. 1994) (in the context of 

finding Cronic inapplicable based on claims of substandard 

attorney performance).

Moreover, we are unpersuaded that a contrary rule would 

actually prove narrow. The dissent suggests Cronic would

“only” apply where a “defense counsel is incapacitated midtrial . . . and no replacement attorney is available who 

observed the testimony of key government witnesses . . . and 

participated in material consultations with the defendant.” 

Dissenting Op. at 19. The dissent’s logic would extend to 

most mid-trial substitutions. And this kind of excruciatingly 

detailed examination of the facts is exactly the circumstance 

for which Strickland is designed.

III

Wilson also challenges the admission of evidence of two 

uncharged murders: that Wilson—with the assistance of his 
16

drug supplier, Larry Browne—shot and killed Sam Phillips 

and that, in a botched robbery of another drug dealer, Wilson 

and two other co-conspirators killed Reginald Reid. 

The lower court deemed the Phillips murder extrinsic to 

the charged conspiracies, noting it stemmed from a “dispute 

over an overlapping romantic relationship.” J.A. 2133. 

Nonetheless the murder was admitted under Federal Rule of 

Evidence 404(b) to show Wilson’s access to and familiarity 

with the use of firearms. 

In contrast, the Reid murder was admitted as “intrinsic” 

to the charged conspiracy because it was “evidence . . . of the 

development of relationships among the alleged coconspirators to show the way that the alleged conspiracies 

grew and were formed and developed, as well as evidence of 

prior conspiratorial conduct among the alleged conspirators 

that would be corroborative of the defendant’s entry into the 

charged agreements in the indictment.” J.A. 2132. 

Our review is for abuse of discretion. See United States 

v. Douglas, 482 F.3d 591, 596 (D.C. Cir. 2007) (Rule 404(b) 

standard); see also id. (review of Rule 403 balancing 

reviewed only for grave abuse); United States v. Becton, 601 

F.3d 588, 595 (D.C. Cir. 2010) (applying the Rules 401 and 

403 abuse of discretion standard when reviewing if evidence 

was intrinsic to the charged crime). We find no basis to 

reverse the district court’s judgment.

A

As to the Phillips murder, the Government makes a 

threshold argument that Wilson waived his challenge by 

arguing he should be allowed to offer evidence that the

Phillips shooting resulted in Phillips’s death. See Wagner v. 
17

Taylor, 836 F.2d 596, 599 (D.C. Cir. 1987) (“It has long been 

settled that on appeal a litigant cannot avail himself of an 

error that he induced the court under review to commit.”). 

We find no applicable waiver. Wilson argued in favor of 

presenting evidence the Phillips shooting ended in a homicide 

because the district court had previously held, over Wilson’s 

objections, that the shooting was admissible. In light of the 

lower court’s ruling, Wilson favored presenting evidence the 

Phillips shooting ended in a homicide under the theory that 

evidence of a homicide would better show any bias of the 

Government’s witness (Browne), who had allegedly assisted 

Wilson in the Phillips shooting and was testifying pursuant to 

the conditions of a plea agreement. 

Though not waived, Wilson’s merits argument is

fruitless. The Phillips murder is admissible to show use of

and familiarity with firearms. Knowledge of firearms is a 

permissible purpose under Rule 404(b). See FED. R. EVID.

404(b)(2); United States v. Miller, 895 F.2d 1431, 1435 (D.C. 

Cir. 1990) (the purposes listed in Rule 404(b)(2) are

illustrative, not exhaustive). Prior use and familiarity with 

firearms is relevant to satisfying the scienter requirement to 

multiple charged offenses, including counts of first degree 

murder while armed and use of a firearm in relation to a crime 

of violence. Cf. Cassell, 292 F.3d at 794–95 (“A prior history 

of intentionally possessing guns . . . is certainly relevant to the 

determination of whether a person . . . on the occasion under 

litigation knew what he was possessing and intended to do 

so.”).

It was likewise not an abuse of discretion—much less 

grave abuse—for the lower court to hold exclusion 
18

unwarranted under Rule 403.12 See FED. R. EVID. 403.

Beyond the Phillips murder, considerable other evidence was 

presented showing Wilson’s access and familiarity with 

firearms, including testimony that Wilson carried a gun; twice 

shot at James Faison, a rival gang member; and, in a separate 

incident, opened fire outside a recreation center. This tends to 

reduce the danger of unfair prejudice from evidence of the 

Phillips murder—as that shooting “did not involve conduct 

any more sensational or disturbing than the [other]” conduct 

attributed to Wilson. United States v. Roldan-Zapata, 916 

F.2d 795, 804 (D.C. Cir. 1990). The relevancy of the Phillips 

shooting is also not rendered redundant, in light of other 

evidence of his familiarity with firearms; the shooting holds 

unique probative value because it arose during a drug 

transaction that “occurred relatively close in time to the 

conduct charged in the indictment, thereby increasing the 

probative value of the 404(b) evidence.” United States v. 

West, 22 F.3d 586, 597 (5th Cir. 1994). 

 12 Rule 404’s advisory committee note employs slightly different 

language in describing the balancing inquiry. FED. R. EVID. 404

advisory committee’s note (“The determination must be made 

whether the danger of undue prejudice outweighs the probative 

value of the evidence in view of the availability of other means of 

proof and other factors . . . under Rule 403.”). Contrary to Wilson’s 

argument, Rule 403’s ordinary “substantially outweighs” standard 

applies in weighing prejudice for evidence admitted under Rule 

404(b). See, e.g., Cassell, 292 F.3d at 795 (“Our analysis does not 

end after determining that prior bad acts evidence is probative to a 

non-character issue under Rule 404(b). We must continue with a 

determination of whether the district court erred in determining that 

the evidence is admissible under Rule 403 . . . [which] prohibits the 

admission of relevant evidence if its probative value is substantially 

outweighed by the danger of unfair prejudice . . . .”). 
19

Moreover, the district court issued limiting instructions to 

mitigate the danger of undue prejudice or improper 

inferences. There is nothing to suggest the jury ignored the 

court’s instructions. See United States v. Brown, 597 F.3d 

399, 406 (D.C. Cir. 2010) (“The jury is presumed to have 

followed [a] cautionary instruction.”). Thus, “[w]here, as 

here, there is no compelling or unique evidence of prejudice,

we deem such a limiting instruction sufficient to protect a 

defendant’s interest in being free from undue prejudice . . . . .” 

United States v. McCarson, 527 F.3d 170, 174 (D.C. Cir. 

2008).

B

The district court also admitted evidence of the Reid 

murder, finding it intrinsic to the charged conspiracy because 

it “show[ed] the way that the alleged conspiracies grew and 

were formed and developed, as well as evidence of prior 

conspiratorial conduct among the alleged conspirators that 

would be corroborative of the defendant’s entry into the 

charged agreements in the indictment.” J.A. 2132. 

Generally intrinsic evidence includes “act[s] that [are] 

part of the charged offense” or “some uncharged acts 

performed contemporaneously with the charged crime . . . if 

they facilitate the commission of the charged crime.” United 

States v. Bowie, 232 F.3d 923, 929 (D.C. Cir. 2000). Thus, 

evidence is not generally rendered intrinsic simply because it 

completes the story or explains the circumstances behind a 

charged offense. Id. But even if evidence of the Reid murder 

was improperly admitted as intrinsic, any error was 
20

harmless.13 “In a conspiracy prosecution, the government is 

[] allowed considerable leeway in offering . . . [extrinsic,

‘other crimes’ evidence under Rule 404(b)(2)] to inform the 

jury of the background of the conspiracy charged . . . and to 

help explain to the jury how the illegal relationship between 

the participants in the crime developed.”

United States v. Mathis, 216 F.3d 18, 26 (D.C. Cir. 2000). It 

is well-established that such other crimes evidence is 

admissible to establish the “contours of [a] conspiracy.”

United States v. Graham, 83 F.3d 1466, 1473 (D.C. Cir. 

1996).14

 13 We therefore need not resolve whether the Reid murder can be 

intrinsically admitted as prior conspiratorial conduct within the 

umbrella of the charged conspiracy—i.e., as an (uncharged) overt 

act in furtherance of the charged drug conspiracy or as 

contemporaneous action in facilitation of the conspiracy—based on 

the Government’s theory that it was committed to “enrich certain 

members of the [conspiracy], as well as weaken another drug 

dealer.” J.A. 656 (Government’s Supplemental Notice & Motion to 

Admit Evidence of Other Crimes). But see United States v. 

Watkins, 591 F.3d 780, 785 (5th Cir. 2009); United States v. Lewis, 

759 F.2d 1316, 1344 (8th Cir. 1985) (“[T]he government is not 

limited in its proof to establishing the overt acts specified in the 

indictment.”). 

14 In the context of the Reid murder, Wilson’s opening brief makes 

only fleeting reference to the Rule 403 standard, as part of its 

summary of a Third Circuit case. See Brief for Appellant David 

Wilson at 46. Because his Reid murder, Rule 403 argument is first 

made in his Reply, see Reply Brief for Appellant David Wilson at 

20, the argument is waived, see In re Asemani, 455 F.3d 296, 

300(D.C. Cir. 2006).
21

IV

Wilson next asserts Brady violations, which bear on his 

conviction for two counts of aiding and abetting murder. The 

Government’s theory was that Wilson acted as the getaway 

driver for two gunmen in the murder of rival gang-member 

Ronnie Middleton and his girlfriend Sabrina Bradley. The 

Government argued Wilson assisted in the shootings because 

he believed Middleton was responsible for the murder of 

Maurice Doleman, who was “like a brother” to Wilson. See 

J.A. 2572 (“They was almost like brothers, sir.”). Wilson 

points to the Government’s failure to timely disclose various 

reports allegedly material to the murders and favorable to the 

accused. Our review is de novo. In re Sealed Case No. 99-

3096 (Brady Obligations), 185 F.3d 887, 892 (D.C. Cir. 

1999). 

Wilson first points to the Carter Report, which the 

Government disclosed roughly three months into trial. That

police report contains a two-paragraph section reflecting

Bradley Carter’s statement that Aman Ball and Joseph Jones 

committed the murders, rather than Antonio Roberson and 

Antoine Draine—as the Government had theorized at trial. 

Second, Wilson argues the Doleman Reports were also 

improperly suppressed. Wilson obtained the Doleman 

Reports only in post-trial discovery. The reports consist of 

summaries of police interviews conducted during the 

investigation of the Doleman murder, including summaries of 

statements by three witnesses who indicated that they

believed or had heard individuals other than Middleton were 

responsible for Doleman’s death.

Wilson cannot show the delayed disclosure of the Carter 

Report was prejudicial. See generally Strickler v. Greene, 

527 U.S. 263, 281–82 (1999) (the three components of a 
22

Brady claim are (1) the evidence at issue must be favorable to 

the accused because it is exculpatory or impeaching; (2) the 

evidence must have been suppressed by the State, willfully or 

inadvertently; and (3) prejudice must have ensued). “[W]here 

disclosure was made but made late, the defendant must show 

a reasonable probability that an earlier disclosure would have 

changed the trial’s result and not just that the evidence was 

material.” United States v. Andrews, 532 F.3d 900, 907 (D.C. 

Cir. 2008). As the district court noted, the Carter Report “was 

disclosed approximately two months before the close of the 

government’s case-in-chief, and Wilson had ample 

opportunity to use this evidence at trial.” United States v. 

Wilson, 720 F. Supp. 2d 51, 70 (D.D.C. 2010). To the extent 

the Government’s narrative as to the Middleton-Bradley 

murders was not fully challenged, it is because Wilson elected

not to use the Carter Report to do so. See id. at 68 (Wilson 

did not recall the Government’s witnesses, Kelliebrew or 

Capies, to incorporate information from the Carter Report into 

the defense’s cross-examination or otherwise use the report to 

investigate facts and question witnesses).15 Moreover, even if 

the Government’s delay had prevented Wilson from using the 

Carter Report at trial (it did not), it is doubtful any prejudice 

would have ensued. The report does not even overtly 

contradict the Government’s theory regarding Wilson’s 

involvement in the Middleton-Bradley murders. Although the 

report implicates two different shooters, the Government

 15 Wilson’s attorney, Wicks, also did not request a continuance to 

further investigate the new information. She instead asked for a 

delay in calling Carter, which the district court granted. J.A. 2992–

93. See Andrews, 532 F.3d at 907 (no Brady violation based on the 

government’s failure to produce notes until the fourth day of trial,

where the notes were only six pages in length and the defense did 

not request a continuance to examine or investigate them despite 

having two opportunities to do so). 
23

believed Wilson was the driver to and from the killings, not 

one of the shooters. 

We also find no Brady violation based on suppression of 

the Doleman Reports. “Suppressed information is 

exculpatory and thus ‘favorable’ to the defense for Brady

purposes when it directly contradicts the motive theory 

testified to by prosecution witnesses.” Mendez v. Artuz, 303 

F.3d 411, 414 (2d Cir. 2002). The Government theorized 

Wilson believed Middleton was responsible for Doleman’s 

death, and this belief precipitated Wilson’s involvement in the 

Middleton-Bradley murders. The suppressed reports, 

however, merely demonstrate that other individuals believed 

someone other than Middleton was responsible—which is, at 

best, tertiary to the question of Wilson’s subjective beliefs and 

does not directly contradict the Government’s theory of 

motive. Cf. Hunt v. Lee, 291 F.3d 284, 295 (4th Cir. 2002) 

(“[T]he state’s theory [was] that Hunt killed Jones because 

Hunt believed that Jones . . . t[old] [the police] that Hunt 

killed Ransom. It is irrelevant whether Jones [] actually told 

the police that Hunt was Ransom’s killer. The critical issue is 

whether Hunt believed that Jones was telling the police that 

Hunt was the killer.”). Further, Wilson cannot show the 

suppressed evidence “could reasonably be taken to put the 

whole case in such a different light as to undermine 

confidence in the verdict.” Kyles v. Whitley, 514 U.S. 419, 

435 (1995). “The police reports do not directly exonerate 

Wilson or lessen the force of the corroborated and credible 

testimony regarding admissions Wilson made about his 

involvement in the[] [Middleton-Bradley] murders to [various 

witnesses].” Wilson, 720 F. Supp. 2d at 65.16

 16 Wilson’s co-conspirators Bobby Capies and Kairi Kelliebrew 

testified that Wilson told them of his involvement in the Middleton-
24

Even considering the cumulative effect of the multiple 

alleged Brady violations, United States v. Lloyd, 71 F.3d 408, 

412 (D.C. Cir. 1995), the untimely or suppressed materials are 

insufficient to undermine our confidence in the jury’s verdict 

or to overcome the Government’s evidence, which included, 

inter alia, testimony from multiple witnesses that Wilson told 

them of his involvement in the Middleton-Bradley murders.

V

We turn to the Defendants’ sentencing challenges. Both 

Wilson and Bell were convicted of multiple counts of crack 

distribution. They argue the sentences imposed by the district 

court violated the Sixth Amendment and were procedurally

and substantively unreasonable. As the Defendants concede,

our prior decision in Jones, 744 F.3d 1362, directly forecloses 

these sentencing arguments—save one claim related to a twopoint firearm enhancement applied to Bell. See Oral Arg. Tr. 

at 1:08:42–09:53 (“We understand that this panel cannot 

reverse the holding in Jones. We think it was wrongly 

decided. . . . We would just ask that you would agree that we 

should have rehearing . . . .”).

17 

 

Bradley murders. Torran Scott, who had a daughter with Bradley, 

also testified that Wilson told him “he didn’t know that [Bradley] 

was in the truck.” J.A. 3320. Renee Cottingham, who unlike the 

other three witnesses was not testifying pursuant to a deal with the 

Government, testified that Wilson provided her with specific details 

about the crime and that she observed Wilson repeatedly mumbling 

to himself, “Why was she there? Why was she there? She 

shouldn’t have been there.” J.A. 3339. 17 This Court’s prior decisions “bind the circuit unless and until 

overturned by the court en banc or by Higher Authority.” Critical 
25

A

In determining the Defendants’ sentences, the district 

court attributed 1.5 kilograms of crack cocaine from the 

conspiracy to each of the Defendants as relevant conduct, a 

finding the court made by a preponderance of the evidence. 

Because the jury acquitted the Defendants of the charged drug 

conspiracies, the Defendants argue the district court’s 

attributions violated the Sixth Amendment by increasing the 

minimum and maximum terms of imprisonment based on 

facts not found by a jury beyond a reasonable doubt. 

The Sixth Amendment provides criminal defendants with 

the right to a jury trial. “The right includes, . . . as its most 

important element, the right to have the jury, rather than the 

judge, reach the requisite finding of ‘guilty.’” Sullivan v. 

Louisiana, 508 U.S. 275, 277 (1993). Acting in conjunction 

with the Sixth Amendment is the protection of the Fifth 

Amendment, which requires a jury “to find each element of 

[a] crime beyond a reasonable doubt,” Patterson v. New York, 

432 U.S. 197, 204 (1977), before a guilty verdict can properly

be rendered, United States v. Gaudin, 515 U.S. 506, 509–10 

(1995). 

That said, many facts that result in an increase to a 

defendant’s sentence are not considered elements of a crime 

and can be found by a sentencing judge relying on a

preponderance of the evidence standard. Rita v. United 

States, 551 U.S. 338, 352 (2007) (“[A] sentencing court [may] 

take account of factual matters not determined by a jury [] to

 

Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 

871, 876 (D.C. Cir. 1992) (internal quotation marks omitted).
26

increase the sentence in consequence.”). The scope of this

general sentencing principle is, of course, not unlimited. 

Facts that increase the maximum, Apprendi v. New Jersey, 

530 U.S. 466, 490 (2000), or mandatory minimum, Alleyne v. 

United States, 133 S. Ct. 2151, 2155 (2013), statutory 

sentence are considered elements that must be found by a jury 

beyond a reasonable doubt. Nonetheless “long-standing 

precedents of the Supreme Court and this Court establish that 

a sentencing judge may consider uncharged or even acquitted 

conduct in calculating an appropriate sentence, so long as that 

conduct has been proved by a preponderance of the evidence 

and the sentence does not exceed the statutory maximum for 

the crime of conviction” or increase the statutory mandatory 

minimum. United States v. Settles, 530 F.3d 920, 923 (D.C. 

Cir. 2008).

The Defendants’ sentences fall within the statutory range, 

rendering their constitutional argument unconvincing. They 

first suggest the sentencing court ran afoul of Alleyne by using 

the 1.5 kilograms of crack cocaine from the conspiracy to 

sentence the Defendants pursuant to 21 U.S.C. § 

841(b)(1)(A), which includes a higher mandatory minimum 

sentence than subsections (B) or (C). See 21 U.S.C. § 

841(b)(1)(A)–(C) (subsection (A) provides for a ten year 

mandatory minimum, as opposed to five years for subsection 

(B) and no mandatory minimum for subsection (C)). But 

“there is no indication in the record that the district court 

judge thought he had to impose a higher mandatory minimum 

sentence as a result of finding [the Defendants] responsible 

for a larger amount of cocaine.” United States v. Hernandez, 

731 F.3d 666, 672 (7th Cir. 2013). The filed judgments make 

clear the Defendants were sentenced pursuant to subsections 

(B) and (C). See J.A. 1812, 2113–14. See also J.A. 3664, 

3702 (sentencing judge identifying the appropriate sentencing 
27

ranges, rather than the ranges that would be produced if he 

had sentenced the Defendants pursuant to subsection (A)). 

Even if the sentences fall within the statutory range, the 

Defendants argue Alleyne prohibits any increase in the 

defendant’s base offense level or upward departure from the 

base offense level, where such an increase or departure is

based on facts found by a sentencing judge to a 

preponderance of the evidence. Alleyne, however, dealt with 

an increase to the statutory range—not increases to a 

defendant’s range under the Sentencing Guidelines

(“Guidelines”). See Alleyne, 133 S. Ct. at 2161 n.2 (“Juries 

must find any facts that increase [] the statutory maximum or 

minimum . . . . Importantly, this is distinct from factfinding 

used to guide judicial discretion in selecting a punishment 

within limits fixed by law.”) (emphasis added) (internal

quotation marks and citations omitted). “We [] lack any basis 

to reconsider the settled rule that enhancing a sentence within 

the statutory range based on facts found by the judge, as 

opposed to the jury, does not violate the Sixth Amendment.” 

Jones, 744 F.3d at 1369. “[J]udicial fact-finding does ‘not 

implicate the Sixth Amendment even if it yield[s] a sentence 

above that based on a plea or verdict alone.’” Id. at 1370 

(quoting United States v. Bras, 483 F.3d 103, 107 (D.C. Cir. 

2007)).

B

The Defendants next challenge their sentences as 

procedurally unreasonable. Among other things, they protest

the district court’s consideration of 1.5 kilograms of crack 

cocaine from the acquitted conspiracy when calculating the 

Defendants’ sentences. They argue crack cocaine distributed 

through the acquitted conspiracy is not “relevant conduct”

where the Defendants’ convictions were for “street-level drug 
28

dealing.” Brief for Joint Appellants Sentencing at 23, United 

States v. Bell, No. 08-3037 (June 30, 2014). See generally

U.S.S.G. § 1B1.3(a) (relevant conduct). Yet in Jones we

affirmed drug distribution sentences imposed on three of the 

Defendants’ co-conspirators, where the sentencing judge 

attributed cocaine distributed through the course of the 

acquitted conspiracy. 744 F.3d at 1368 (“‘[R]elevant 

conduct’ includes acts that were part of the same course of 

conduct or common scheme or plan as the offense of 

conviction, and here, the district court specifically found that 

appellants’ crack distribution offenses were part of a 

‘common scheme’ with Congress Park Crew members, a 

finding that we have already determined was not clearly 

erroneous.”) (internal quotation marks and citations 

omitted).18

Relying on Justice Scalia’s partial concurrence in Rita, 

551 U.S. at 375 (Scalia, J., concurring in part), the Defendants 

next rehash their Sixth Amendment argument couched as a 

distinct theory of procedural unreasonableness. They argue

the sentencing court misunderstood the scope of his 

sentencing authority and misapplied the Guidelines. The 

Defendants’ refrain is familiar: because the acquitted 

conspiracy was not found by a jury beyond a reasonable 

doubt, it was procedurally unreasonable for the sentencing 

judge to consider it in calculating the Defendants’ base 

 18 The Defendants also raise an argument that there was insufficient 

evidence to support an attribution of 1.5 kilograms of crack 

cocaine. The specifics of their contentions are somewhat better 

developed in a parallel argument they raise for substantive 

unreasonableness, discussed infra Part V(C). To the extent this

procedural unreasonableness argument is distinct from the 

Defendants’ substantive unreasonableness argument, it remains 

irreconcilable with Jones. See 744 F.3d at 1366–68. 
29

offense levels under the Guidelines. According to the 

Defendants, the acquitted conspiracy could, at most, only be 

considered as a section 3553 factor. “Whatever the merits of 

Justice Scalia’s argument [in Rita], it is not the law.” Jones, 

744 F.3d at 1369. A sentencing court may base a sentence on 

acquitted conduct, “even when consideration of the acquitted 

conduct multiplies a defendant’s sentence severalfold,” so 

long as the sentence does not exceed the statutory maximum 

and is based on conduct established by a preponderance of the 

evidence. Id. 

The Defendants’ final argument for procedural 

unreasonableness relates to a two-point firearm enhancement 

imposed on Bell. See U.S.S.G. § 2D1.1(b)(1). The 

enhancement was imposed based on a loaded handgun found 

hidden in Bell’s bedroom in proximity to other tools of the 

narcotic trade. The search leading to the firearm occurred in 

1996, during the lifetime of the acquitted crack conspiracy, 

but Bell argues the enhancement can only be applied if a 

firearm was present during an offense of conviction—i.e., if 

the firearm was found during one of the drug distribution 

counts of which he was convicted. Bell is mistaken. “The 

applicability of a specific offense characteristic, such as 

section 2D1.1(b)(1), depends on whether the conduct at issue 

is ‘relevant’ to the offense of conviction,” United States v. 

Pellegrini, 929 F.2d 55, 56 (2d Cir. 1991). “[T]he 

enhancement is to be applied whenever a firearm is possessed 

during conduct relevant to the offense of conviction,” United 

States v. Smith, 127 F.3d 1388, 1390 (11th Cir. 1997), which 

“includes acts ‘that were part of the same course of conduct or 

common scheme or plan as the offense of conviction.’” Id.

(quoting U.S.S.G. § 1B1.3(a)(2)). It was not erroneous for the 

sentencing judge to find the firearm was possessed during 

conduct relevant to the offenses of conviction. The weapon 

was found “hidden in a speaker . . . in proximity to other tools 
30

of the narcotic trade,” J.A. 2627–28, and the judge found—by

a preponderance—that the life of the drug conspiracy

encompassed both the time of the search and the time of the 

offenses of conviction. 

C

The Defendants also contend their sentences were 

substantively unreasonable, though—at times—their 

arguments are mere variations of their constitutional or

procedural unreasonableness theories. For example, the 

Defendants again argue the sentencing judge could not 

attribute crack cocaine from the acquitted conspiracy to them, 

as relevant conduct. This particular iteration of the 

Defendants’ argument hinges on their belief that “[t]he only 

reasonable interpretation of the [jury’s acquittal on 

conspiracy] is that [the jury] believed either no conspiracy 

existed or that Appellants were not part of the conspiracy.” 

Brief for Joint Appellants Sentencing at 28.19 But “an 

acquittal in a criminal case does not preclude the Government 

 19 The Defendants assert this conclusion necessarily follows

because the jury purportedly made specific factual findings as to the 

drug quantities attributable to Bell and Wilson as co-conspirators, 

by acquitting them of conspiring to distribute at least 5 kilograms of 

cocaine and 50 grams of crack cocaine, as well as the lesser 

included offenses of conspiracy to distribute 500 grams of cocaine 

and 50 grams of crack cocaine and conspiracy to distribute 

detectable amounts of cocaine and crack cocaine. Yet “[a]n 

acquittal [is] only [] an acknowledgment that the government failed

to prove an essential element of the offense beyond a reasonable 

doubt.” United States v. Watts, 519 U.S. 148, 156 (1997). It does 

not amount to a specific finding that no conspiracy existed or that 

the Government would be unable to prove the Defendants’ 

participation in the conspiracy under a reduced burden of proof.
31

from relitigating an issue when it is presented in a subsequent 

action governed by a lower standard of proof. . . . [A] jury’s 

verdict of acquittal does not prevent the sentencing court from 

considering conduct underlying the acquitted charge, so long 

as that conduct has been proved by a preponderance of the 

evidence.” United States v. Watts, 519 U.S. 148, 156 (1997). 

The Defendants also argue it was substantively 

unreasonable to attribute the distribution of 1.5 kilograms of 

crack cocaine to them. The Defendants argue there was 

insufficient evidence to support the quantities of crack 

cocaine attributed by the judge, based on the evidence 

presented of the quantities that Bell and Wilson personally 

distributed. The sentencing judge’s attribution, however, 

was—in the first instance—based upon whether crack cocaine 

sales among all the conspirators exceeded 1.5 kilograms and 

were reasonably foreseeable to the Defendants. J.A. 3623–24 

(Bell),20 3687–88 (Wilson). See also Jones, 744 F.3d at 1368 

(permitting the attribution of crack cocaine from defendants’ 

coconspirators as relevant conduct); U.S.S.G. § 

1B1.3(a)(1)(B) & cmt. 2 (conduct of coconspirators is 

“relevant” in determining a defendant’s Guideline range 

where he engages in jointly undertaken criminal activity and 

the coconspirators’ conduct is reasonably foreseeable to the 

defendant). This finding was supported by ample evidence. 

See, e.g., J.A. 3621–24 (as to Bell, noting—in addition to 

various other witness testimony—that the co-conspirators 

who entered guilty pleas admitted to their accountability for 

 20 The sentencing judge made a secondary finding that Bell was 

personally responsible for at least 1.5 kilograms of crack cocaine. 

J.A. 3623. This finding was also adequately supported. See J.A. 

3622–23.
32

over 1.5 kilograms of crack cocaine); J.A. 3689–91 (same, as 

to Wilson). 

The Defendants further protest that the Government 

relied upon testimonial evidence, rather than physical or 

documentary evidence. But there is no problem with the 

Government relying on admissible testimony, so long as it is 

sufficient—either alone or in combination with other 

evidence—to satisfy the requisite burden of proof. See United 

States v. Graham, 317 F.3d 262, 271 (D.C. Cir. 2003).

Moreover, contrary to the Defendants’ claims of vagueness 

and inconsistency, the Government’s witnesses offered

specific information to support the quantities of cocaine 

attributed to the Defendants based on the acquitted 

conspiracy. Drug dealer Cedric “Conner . . . [testified to]

supplying an estimated quantity in excess of one kilo between 

1999 and 2000, and [coconspirator Robert] Capies . . . 

[admitted to] buying over 500 grams from 1992 to 2001.” 

J.A. 3622. The Defendants challenge the credibility of these

witnesses. But, while evidence of their coconspirators’ 

disreputable character “may undercut the[ir] . . . credibility 

generally, [it] do[es] not establish that it was implausible for 

the district court to credit particular aspects of their testimony, 

especially where, as here, the cooperators offered mutually 

corroborative accounts.” 744 F.3d at 1367.

VI

For the foregoing reasons the district court is

Affirmed. 
WILKINS, Circuit Judge, dissenting in part and concurring

in part: I join the Court’s opinion upholding Bell’s sentence. 

I part ways with the majority, however, on Wilson’s 

conviction. In my view, the District Court violated the Fifth 

and Sixth Amendments by forcing Wilson to continue his 

defense with replacement counsel who had been absent from 

court during the earlier testimony of key government 

witnesses. Because this error requires reversing Wilson’s 

conviction and remanding his case for a new trial, I 

respectfully dissent.

I.

The Supreme Court decided United States v. Cronic, 466 

U.S. 648 (1984) and Strickland v. Washington, 466 U.S. 668 

(1984) on the same day. In doing so, the Court examined the 

Sixth Amendment right to the effective assistance of counsel 

with respect to two very distinct categories of asserted error. 

Understanding the reasons for the separate paths is 

fundamental to the analysis of the error asserted in this case.

In the first category of constitutional error, the defense 

lawyer “deprive[s] a defendant of the right to effective 

assistance, simply by failing to render ‘adequate legal 

assistance.’” Strickland, 466 U.S. at 686 (quoting Cuyler v.

Sullivan, 446 U.S. 335, 344 (1980)). “[B]ecause we presume 

that the lawyer is competent to provide the guiding hand that 

the defendant needs, the burden rests on the accused to 

demonstrate a constitutional violation.” Cronic, 466 U.S. at 

658 (citation omitted); see also Strickland, 466 U.S. at 688 

(discussing “presumption that counsel will fulfill the role in 

the adversary process that the Amendment envisions”). To 

prevail on this type of claim, the defendant must show that 

counsel’s performance was objectively unreasonable, and 

that, “but for counsel’s unprofessional errors, the result of the 

proceeding would have been different.” Strickland, 466 U.S. 

at 687-88, 694. Thus, the analysis hinges on an examination 
2

of “how specific errors of counsel undermined the reliability 

of the finding of guilt.” Cronic, 466 U.S. at 659 n.26 (citing 

Strickland, 466 U.S. at 693-96).

The second category of Sixth Amendment error does not 

examine specific errors of counsel at all. Rather, this error 

transpires when “[t]here are . . . circumstances that are so 

likely to prejudice the accused that the cost of litigating their 

effect in a particular case is unjustified.” Id. at 658. In these 

instances, the constitutional violation is shown “without 

inquiry into counsel’s actual performance at trial,” id. at 662, 

because “the surrounding circumstances made it so unlikely 

that any lawyer could provide effective assistance that 

ineffectiveness [i]s properly presumed without inquiry into 

actual performance at trial,” id. at 661 (emphasis added). 

Stated differently, the circumstances of this type of error are 

such that “although counsel [was] available to assist the 

accused during trial, the likelihood that any lawyer, even a 

fully competent one, could provide effective assistance is so 

small that a presumption of prejudice is appropriate without 

inquiry into the actual conduct of the trial.” Id. at 659-60.

So how do we identify those circumstances “that are so 

likely to prejudice the accused” that prejudice is presumed? 

The Supreme Court provided several salient examples in both 

Strickland and Cronic. 

In Strickland, the Court observed that prejudice is 

presumed where there is an “[a]ctual or constructive denial of 

the assistance of counsel altogether.” 466 U.S. at 692. 

Cronic agreed, explaining that prejudice is presumed where a 

defendant was “denied counsel at a critical stage of his trial,” 

whether actually or constructively. 466 U.S. at 659. The 

Court also explained that, when counsel “entirely fails to 

subject the prosecution’s case to meaningful adversarial 
3

testing,” the adversary process is presumptively 

unreliable. Id.

But in addition to these scenarios, Strickland explained 

that prejudice is presumed where there have been “various 

kinds of state interference with counsel’s assistance,” 466 

U.S. at 692, because the “[g]overnment violates the right to 

effective assistance when it interferes in certain ways with the 

ability of counsel to make independent decisions about how to 

conduct the defense,” id. at 686. Again, Cronic agreed, 

explaining that prejudice is presumed where the defense was 

“prevented from assisting the accused during a critical stage 

of the proceeding.” 466 U.S. at 659 n.25. In so doing, both 

Strickland and Cronic reaffirmed the long-established 

principle that certain impediments to the defense are so grave 

that they thwart the adversarial factfinding process at the heart 

of our system of justice. These impediments can result from 

actions of the trial court as well as those of the prosecutor. 

When a trial court imposes serious obstacles to a defendant’s 

ability to obtain the “guiding hand of counsel at every step in 

the proceedings against him,” due process is denied. Brooks 

v. Tennessee, 406 U.S. 605, 612 (1972) (quoting Powell v. 

Alabama, 287 U.S. 45, 69 (1932)). This is because “[t]he 

very premise of our adversary system of criminal justice is 

that partisan advocacy on both sides of a case will best 

promote the ultimate objective that the guilty be convicted 

and the innocent go free.” Herring v. New York, 422 U.S. 

853, 862 (1975).

In this case, forcing Wilson to finish the trial with a 

lawyer who had missed several critical days of the 

proceedings was such an impediment to the defense and 

interference with counsel’s assistance that prejudice is 

presumed. To understand why, we need to review the facts.
4

II.

As the majority explains, Wilson was one of six 

defendants in a drug conspiracy trial that lasted ten months. 

Four months into the government’s case, Wilson’s lead 

counsel, Jenifer Wicks, suddenly took ill, and the District 

Court initially announced its intent to grant Wilson’s motion 

for a mistrial. However, the Government objected, and the 

District Court changed course. The Government proposed 

that Wilson’s second-chair counsel, Gary Proctor, be elevated 

to take over his defense, and that the court could take a 

continuance to allow Proctor to get up to speed. The District 

Court acceded to this request and denied Wilson’s motion for 

a mistrial.

1

 

 1 The District Court refused to grant a mistrial solely on the ground

that appointing Proctor as replacement counsel, appointing a new 

second-chair counsel, and recessing for sufficient time to allow 

Wilson’s new defense team to prepare would be sufficient to 

protect Wilson’s rights. Trial Tr. at 16,635-37, United States v. 

Ball (D.D.C. June 27, 2007), ECF No. 1040. The District Court’s 

determination therefore implicitly declined the government’s selfserving invitation to speculate that Wicks would be “available in 

some capacity” to consult with Proctor. Id. at 16,599. Thus, the 

majority’s suggestion (based on the biased speculation by the trial 

prosecutor) that Wicks might have been able to assist Wilson from 

outside the courtroom after a two-week initial recovery – a 

proposition for which there is no support – is wholly irrelevant to 

the decision under review. Of course, it also ignores the fact that 

the initial two weeks during which Wicks was undisputedly

forbidden from discussing work on doctor’s orders ended July 9, 

the day the government resumed its case following a recess. 

Proctor therefore could not have consulted with Wicks as of the 

time he had to begin defending the remainder of the government’s 

case.
5

Saying that Proctor needed to get up to speed is quite the 

understatement. Proctor had tried only one other federal 

criminal case (also as second-chair counsel), had no 

familiarity with the RICO statute, and had only been admitted 

to the bar for about five years. Defendant’s June 24, 2007 

Trial Brief, United States v. Ball, No. 05-cr-100 (D.D.C. June 

24, 2007), ECF No. 1016. He joined Wilson’s defense only a 

week and a half before trial began, and continued to work on 

other cases during the first four months of trial. His role on 

Wilson’s defense was largely administrative; Wicks prepared 

the trial strategy, interviewed witnesses, and consulted with 

Wilson while Proctor made photocopies and handled phone 

calls. Proctor cross-examined only one government witness 

and met with Wilson independently only once before Wicks 

took ill. Proctor was thus not merely second-chair counsel; he 

was a part-time, relatively inexperienced, last-minute addition 

second-chair counsel.

Because of his administrative duties in this case, as well 

as his work on his other cases, Proctor was not present in 

court for about a third of trial before Wicks’s illness. Proctor 

missed the testimony of several witnesses who were critical to 

the prosecution’s case against Wilson, including Torran Scott 

and Renee Cottingham, two of the four witnesses who 

inculpated Wilson in the murders of Sabrina Bradley and 

Ronnie Middleton. See Trial Tr. at 11, United States v. Ball, 

No. 05-cr-100 (D.D.C. June 27, 2007), ECF No. 1040. 

Proctor was not in the courtroom to watch Scott tell the jury 

that Wilson had admitted involvement in the shooting, and 

that Wilson asked Scott to corroborate his alibi. Nor did 

Proctor see Scott admit on cross examination that he failed to 

inculpate Wilson until four years after the murders and two 

days before pleading guilty as part of a deal with the 

government. Proctor was not present when Cottingham told 

the jury that Wilson confessed to her that he had committed 
6

the murders while she unbraided his hair one evening. 

Proctor did not see Wicks cross-examine Cottingham on her 

belief that Wilson was involved in her brother’s homicide, 

giving her strong incentive to implicate him in Middleton and 

Bradley’s murders. Scott and Cottingham’s testimony, along 

with the testimony of two co-conspirators who testified in 

exchange for government leniency, was the only evidence the 

government presented to connect Wilson with those murders. 

See Maj. Op. at 23 n.16. 

Proctor missed other significant parts of the prosecution 

case as well. Proctor was not present during a large part of 

the cross-examination of Damien Green. Green was a 

government witness who had testified at length that Wilson 

had robbed several men at gunpoint, threatened him with a 

gun, shot at him, and even shot up a recreation center. See

Trial Tr. at 11,675-77, United States v. Ball, No. 05-cr-100 

(May 17, 2007), ECF No. 942; Trial Tr. at 13,106-12, id.

(D.D.C. May 29, 2007), ECF No. 967; Trial Tr. at 13,786-88, 

13,827-35, id. (D.D.C. May 31, 2007), ECF No. 978. On 

cross, when Proctor was absent, other defense attorneys 

questioned Green about his daily use of drugs and alcohol 

throughout the period about which he had testified. Trial Tr. 

at 13,913-22, id. (D.D.C. June 4, 2007), ECF No. 979. 

Proctor was also absent during – and did not see the jury’s 

reaction to – a forensic pathologist’s graphic testimony about 

Middleton and Bradley’s deaths, during which the 

government introduced into evidence autopsy photographs of 

their gunshot wounds and their faces. Trial Tr. at 15,629-34, 

15,645-69, id. (D.D.C. June 14, 2007), ECF No. 1010, 1012.

When Wicks left Wilson’s side, her accumulated 

knowledge of the case left with her. In particular, Wilson 

lost: (1) Wicks’s tactical and strategic consultations with 

Wilson about the trial, (2) Wicks’s appraisal of witness 
7

demeanor, and (3) Wicks’s assessment of the jury’s reaction 

to the witness testimony and physical evidence introduced at 

trial. In denying Wilson a mistrial and forcing him to 

continue to verdict with the assistance of a lawyer who had 

missed so much and who would not have this accumulated 

knowledge, the District Court deprived Wilson of his right to 

an attorney with the knowledge necessary to challenge 

adequately the government’s evidence. 

A.

The District Court did not consider the impact on 

Wilson’s defense of losing Wicks’s work-product from her 

consultations with Wilson, but Supreme Court precedent 

makes clear the centrality of these consultations to the right to 

assistance of counsel. Moreover, when a defendant is denied 

the opportunity to consult with counsel at trial, prejudice to 

the defense is presumed. In a series of cases reaffirmed in 

Cronic, 466 U.S. at 659 n.25, the Supreme Court found 

constitutional error based upon limitations on criminal 

defendants’ ability to consult with their attorneys. In Geders 

v. United States, the Court held that a trial court’s denial of 

the defendant’s access to his attorney during a weekend trial 

recess violated the right of effective assistance of counsel, 

because it hampered counsel’s ability to discuss the 

significance of the day’s evidence with the defendant. 425 

U.S. 80, 88-89 (1976); see also Mudd v. United States, 798 

F.2d 1509, 1510 (D.C. Cir. 1986) (holding that even an order 

only barring the defendant from discussing his upcoming 

testimony with his counsel – but not restricting any other 

topic of discussion – during a trial recess violates the Sixth 

Amendment and requires reversal without a showing of actual 

prejudice). Similarly, in Brooks, the Court struck down a 

Tennessee law that required a defendant to take the stand 

before any other defense witnesses, because it inhibited the 
8

“important tactical decision” of whether and when the 

defendant would testify. 406 U.S. at 612. In short, “the Sixth 

Amendment guarantees not just the right to have counsel, but 

also the right to consult with counsel about important tactical 

decisions,” to participate in those decisions, and to have one’s 

counsel “obtain factual information crucial to making them.” 

United States v. McLaughlin, 164 F.3d 1, 17 (D.C. Cir. 1998) 

(Tatel, J., dissenting). 

After Cronic, the Court confirmed that a trial court’s 

denial of the defendant’s right to confer with his attorney 

during trial recess “is not subject to the kind of prejudice 

analysis that is appropriate in determining whether the quality 

of a lawyer’s performance itself has been constitutionally 

ineffective.” Perry v. Leeke, 488 U.S. 272, 280 (1989). As 

this Court explained in Mudd, 798 F.2d at 1513, a rule that 

requires the defendant to establish that he was prejudiced by 

his inability to consult with counsel would require the 

defendant to show “what he and counsel discussed, what they 

were prevented from discussing, and how the order altered the 

preparation of his defense,” and “[p]resumably the 

government would then be free to question defendant and 

counsel about the discussion that did take place, to see if 

defendant nevertheless received adequate assistance.” Mudd, 

798 F.2d at 1513. We stated then that we could not “accept a 

rule whereby private discussions between counsel and client 

could be exposed in order to let the government show that the 

accused’s sixth amendment rights were not violated,” chilling 

defendants’ ability to communicate freely with their lawyers. 

Id. (citing Martin v. Lauer, 686 F.2d 24, 32 (D.C. Cir. 1982)).

Proctor represented, and the government did not dispute, 

that while he was out of court attending to his other cases, 

making copies and performing other administrative tasks (and 

at one point even travelling to Ireland for a family funeral), 
9

Wicks was in the courtroom every day discussing the 

government’s evidence with Wilson and strategizing his 

defense. The District Court corroborated Wilson’s lack of a 

relationship with Proctor before Proctor was forced to take 

over, urging Wilson to “take to heart” the need to 

communicate with Proctor going forward. Trial Tr. at 16,639, 

United States v. Ball (D.D.C. June 27, 2007), ECF No. 1040. 

Had Wicks remained until the end of trial, her consultations 

with Wilson undoubtedly would have guided her choices 

about how to challenge later government witnesses, what 

further investigation was needed, what witnesses to call in her 

case-in-chief, and what to ask those witnesses. Proctor did 

not observe much of the vital attorney-client consultation that 

happens during trial while testimony is fresh, and it is 

completely unrealistic to assume that he could reconstruct 

those discussions months later based on a cold transcript. 

Since Wicks was forbidden from any work for the fortnight 

following her illness, it is beyond dispute that Proctor lacked 

any access to these consultations in the two weeks he 

prepared for the close of the government’s evidence. As for 

the remainder of trial, the record contains no evidence

indicating anything other than that most, if not all, of these

consultations between Wilson and Wicks were irretrievably 

lost to Proctor. 

In reversing its prior decision to sever Wilson from the 

trial, the District Court gave no consideration to the prospect 

that moving forward would mean the loss of months’ worth of 

Wilson’s consultations with Wicks. See id. at 16,636-39. But

the Constitution protects the defendant’s ability to consult 

with counsel during trial because “ordinarily a defendant is 

ill-equipped to understand and deal with the trial process 

without a lawyer’s guidance.” Geders, 425 U.S. at 88. 

Criminal defendants know the most about the facts of their 

own case, but are typically not familiar with the rules of 
10

evidence and lack the skill to present their own defense. 

Powell, 287 U.S. at 68-69. Defense counsel must have access 

to the information needed to challenge the government’s case. 

The same constitutional error that flows from a restriction on 

defendant-counsel communication also results from a court

order to continue trial after the knowledge and strategic 

decisions built upon these communications are lost to the 

defense. Forcing Wilson to move forward when the substance 

of his consultations with counsel had been erased

fundamentally impaired the adversarial process. Spoliation of 

the fruits of consultation is no different from denial of 

consultation in the first place. Based on Geders, Perry v. 

Leake, and Mudd, prejudice from such spoliation is presumed.

B.

The loss of Wicks’s appraisal of witness demeanor is a 

separate highly prejudicial circumstance, because it impaired 

Wilson’s right to present a defense, including the right to 

challenge the credibility of government witnesses. See 

Washington v. Texas, 388 U.S. 14, 19 (1967). The 

government conceded at oral argument that witness credibility 

is a critically important issue to trial success, Oral Arg. Tr. at 

21:27-21:38, and that observing live testimony enhances

credibility determinations beyond what is possible from

merely reading a transcript, id. at 22:04-22:10. We afford 

trial judges the greatest deference in their role as factfinders 

precisely because only those who observe witness testimony 

firsthand “can be aware of the variations in demeanor and 

tone of voice that bear so heavily on the listener’s 

understanding of and belief in what is said.” Anderson v. City 

of Bessemer City, N.C., 470 U.S. 564, 575 (1985) (internal 

citations omitted); see also, e.g., Ornelas v. United States, 517 

U.S. 690, 701 (1996) (Scalia, J., dissenting) (probable cause 

findings are reviewed deferentially because “[a]n appellate 
11

court never has the . . . full benefit of [the district court’s] 

hearing of the live testimony.”); Wainwright v. Witt, 469 U.S. 

412, 429 (1985) (a trial judge’s “predominant function in 

determining juror bias involves credibility findings whose 

basis cannot be easily discerned from an appellate record”). It 

can hardly be gainsaid that “[l]ive testimony enables the 

finder of fact to see the witness’s physical reactions to 

questions, to assess the witness’s demeanor, and to hear the 

tone of the witness’s voice – matters that cannot be gleaned 

from a written transcript.” United States v. Mejia, 69 F.3d 

309, 315 (9th Cir. 1995) (internal citations omitted).

Even more importantly, the Sixth Amendment requires

that the factfinder observe witness examination first-hand. 

The Confrontation Clause “commands . . . that reliability be 

assessed in a particular manner: by testing in the crucible of 

cross-examination,” Crawford v. Washington, 541 U.S. 36, 61 

(2004), and entitles a criminal defendant to “both the 

opportunity to cross-examine and the occasion for the jury to 

weigh the demeanor of the witness,” Barber v. Page, 390 U.S. 

719, 725 (1968). As Judge Learned Hand explained, witness 

demeanor may prove decisive to the jury’s resolution of a

case:

[T]he carriage, behavior, bearing, manner and appearance 

of a witness – in short, his “demeanor” – is a part of the 

evidence. The words used are by no means all that we 

rely on in making up our minds about the truth of a 

question that arises in our ordinary affairs, and it is 

abundantly settled that a jury is as little confined to them 

as we are. They may, and indeed they should, take into 

consideration the whole nexus of sense impressions 

which they get from a witness. This we have again and 

again declared, and have rested our affirmance of 

findings of fact of a judge, or of a jury, on the hypothesis 
12

that this part of the evidence may have turned the scale. 

Moreover, such evidence may satisfy the tribunal, not 

only that the witness’ testimony is not true, but that the 

truth is the opposite of his story; for the denial of one, 

who has a motive to deny, may be uttered with such 

hesitation, discomfort, arrogance or defiance, as to give 

assurance that he is fabricating, and that, if he is, there is 

no alternative but to assume the truth of what he denies.

Dyer v. MacDougall, 201 F.2d 265, 268-69 (2d Cir. 1952) 

(footnote omitted). 

But unlike other forms of evidence, “[d]emeanor 

evidence is not captured by the transcript; when the witness 

steps down, it is gone forever.” United States v. Zeigler, 994 

F.2d 845, 849 (D.C. Cir. 1993). Just as it is undoubtedly true 

that, “since [witness demeanor] evidence has disappeared, it 

will be impossible for an appellate court to say” whether the 

factfinder was correct in relying on it, Dyer, 201 F.2d at 269,

any advocate hoping to challenge witness credibility based on 

demeanor will be fundamentally handicapped if he did not 

himself observe the witness testify. Since witness demeanor

may determine the jury’s verdict, an attorney must observe 

the testimony in order to mount an effective defense. 

When the District Court forced Proctor to take over 

Wilson’s defense without having seen key government 

witness testimony, it denied him the means to prepare his 

client’s defense. It is folly to expect an attorney who was not 

present at trial to “pick up the thread of the state’s case, pick 

up on all the subtle nuances that are apparent only to those 

actually in the courtroom during trial, read a cold transcript . . 

. and go on to do an effective job on a criminal case.” 

Minnesota v. Parson, 457 N.W.2d 261, 263 (Minn. Ct. App. 

1990) (holding that trial court erred in allowing pro se 
13

defendant’s standby counsel to leave courtroom during trial

after defendant refused his assistance). Few lawyers would 

voluntarily enter into such a disadvantaged position. Indeed, 

Proctor’s motion for a mistrial explicitly cited his fear of 

violating his ethical duty to competently represent Wilson. 

How can we uphold a conviction secured after such a fatal 

blow to the defense’s ability to challenge the government’s 

case?

C.

Wilson was further prejudiced because his lawyer missed 

the reaction of the most important people – the factfinders –

to critical portions of the evidence. In Herring, a case 

favorably cited by both Cronic and Strickland, the Court ruled 

that the Sixth Amendment was violated because the 

defendant’s lawyer was not permitted to make a summation in 

a bench trial. 422 U.S. at 864. No prejudice needed be 

shown. And it was immaterial that the trial judge – the 

factfinder – said that he did not need to hear from the lawyer 

to decide the credibility issues because “counsel’s argument 

would not change his mind.” Id. at 860. The Court described 

the case as involving the right “to participate fully and fairly 

in the adversary fact-finding process,” id. at 858, because 

“there will be cases where closing argument may correct a 

premature misjudgment and avoid an otherwise erroneous 

verdict,” id. at 863. 

Any good trial lawyer knows to watch the jury’s reaction 

to testimony as it is presented, because jurors’ responses can 

inform strategic and tactical choices going forward. See HON.

RICHARD B. KLEIN, ROBERTO ARON, TRIAL COMMUNICATION 

SKILLS § 46:4 (2d ed. 2014) (“During a court presentation one 

should observe the jury’s response. . . . Not observing the 

jury’s reaction is like walking down the street with your eyes 
14

closed.”); Richard M. Rawdon, Listening: The Art of 

Advocacy, 36 TRIAL 99, 101 (2000) (“By noting jurors’ 

reactions, you can alter your proof if necessary. . . . When you 

conduct your cross, . . . you must observe the jury’s reaction 

to your questions and the witness’s answers.”); Hon. Stephen 

S. Trott, Words of Warning for Prosecutors Using Criminals 

as Witnesses, 47 HASTINGS L.J. 1381, 1406 (1996). In 

recognition of the fact that jurors’ reaction to testimony is 

often key to understanding the ultimate verdict, appellate 

courts defer to trial judges’ rulings that are informed by 

observation of those responses. E.g., Palenkas v. Beaumont 

Hosp., 443 N.W.2d 354, 356-57 (Mich. 1989) (determination 

of whether jury’s verdict was “motivated by such 

impermissible considerations as passion, bias, or anger is best 

left to trial court because it observed jury reaction to 

witnesses); Pennsylvania v. Fredericks, 340 A.2d 498, 504 

(Pa. Super. Ct. 1975) (upholding declaration of mistrial

because trial court was in a “far better position” to weigh 

whether jury would reach a verdict since it had “observed the 

jury’s attentiveness and reaction to the evidence”); 

Redevelopment Auth. of Bucks Cnty. v. Asta, A.2d 300, 303 

(Pa. Commw. Ct. 1974). Perhaps the Eight Circuit summed it 

up best in explaining why it deferred to a trial judge’s 

determination that a jury’s damage award was the result of 

passion or prejudice: 

[W]e acknowledge that much of the evidence supporting 

this inference consisted of the district court’s 

observations of the jury’s general demeanor, 

observations that do not necessarily lend themselves to 

written expression. In other words, perhaps one just had 

to be there.

Tedder v. Am. Railcar Indus., Inc., 739 F.3d 1104, 1112 (8th 

Cir. 2014).
15

Wilson was denied an attorney who “had been there” to 

observe the jury’s reaction to critical testimony that 

inculpated his client in a double homicide. He was 

consequently denied a lawyer capable of adjusting his case 

and focusing his closing argument based on that jury reaction. 

In this case, the Sixth Amendment mandated that Wilson have 

an advocate who could effectively present an alternative view 

of the evidence, and “no aspect of such advocacy could be 

more important than the opportunity finally to marshal the 

evidence for each side before submission of the case to 

judgment.” Herring, 422 U.S. at 862. How could Wilson’s 

counsel effectively “correct premature misjudgments” that the 

jurors may have reached about the evidence, when, for much 

of the case, he was not even present to see their initial 

judgments?

* * *

As explained above, in Cronic and Strickland the 

Supreme Court identified three scenarios in which prejudice is 

presumed to result from the denial of the Sixth Amendment 

right to assistance of counsel. Several of the Supreme Court’s 

post-Cronic cases have dealt with whether counsel’s 

performance so “fail[ed] to subject the prosecution’s case to 

meaningful adversarial testing” that prejudice need not be 

shown. See Bell v. Cone, 535 U.S. 685, 696-98 (2002) 

(prejudice not presumed where defense counsel failed to 

present mitigating evidence and waived closing argument in 

penalty phase of capital case but delivered opening statement, 

pointed to mitigating evidence already adduced at trial, and 

successfully objected to government evidence); Smith v. 

Robbins, 528 U.S. 259, 286-88 (2000) (prejudice not 

presumed where failure consisted of attorney’s decision not to 

file a merits brief on direct appeal). Likewise, the Court has 
16

examined what constitutes actual or constructive absence of 

counsel at a “critical stage,” Cronic, 466 U.S. at 659, of the 

proceeding. See Wright v. Van Patten, 552 U.S. 120, 125 

(2008) (counsel’s participation in plea hearing via telephone 

was not subject to prejudice per se); Roe v. Flores-Ortega, 

528 U.S. 470, 484 (2000) (counsel’s failure to timely file 

appeal worked a complete denial of appellate counsel because 

it “deprived respondent of the appellate proceeding 

altogether”); Penson v. Ohio, 488 U.S. 75, 88 (1988) (denial 

of counsel on appeal is subject to presumed prejudice). But 

the Court has not had occasion to identify further examples of 

prejudice per se that fall under the final category it identified 

in Cronic and Strickland: the government or trial court’s 

interference with counsel’s assistance to his or her client. 

Our sister circuits, following the Supreme Court’s lead, 

have adopted rules that certain other impairments of access to 

counsel are per se prejudicial. For instance, the Second 

Circuit concluded that representation by a disbarred attorney 

is prejudicial per se. United States v. Novak, 903 F.2d 883, 

890 (2d Cir. 1990). More relevant to the case at bar, a

number of our sister circuits have held even brief physical

absences of defense counsel from trial presumptively 

prejudicial. The Sixth Circuit, for instance, overturned a 

conviction obtained after a trial in which counsel was absent 

for an afternoon of testimony that directly inculpated the 

defendant, reasoning that “[i]t is difficult to perceive a more 

critical stage of a trial than the taking of evidence on the 

defendant’s guilt.” Green v. Arn, 809 F.2d 1257, 1263 (6th 

Cir. 1987), vacated on other grounds, 484 U.S. 806 (1987), 

reinstated, 839 F.2d 300 (6th Cir. 1988). The Fifth Circuit, in 

United States v. Russell, 205 F.3d 768 (5th Cir. 2000), 

reversed a conspiracy conviction even though the testimony 

focused on the co-defendants, rather than the defendant, 

during his counsel’s day-long absence from court.
17

These cases differ from the instant one only in the 

physical presence of some lawyer at every stage of Wilson’s 

trial. But see Burdine v. Johnson, 262 F.3d 336, 341 (5th Cir. 

2001) (en banc) (overturning murder conviction after counsel, 

though present, repeatedly dozed during the defendant’s trial). 

Physical presence is important, since without it there will be 

no one to object to prosecution evidence and confront the 

government’s witnesses. But it is not the end of the inquiry. 

Assessing witness demeanor, consulting with the defendant, 

and observing the reaction of the jurors are as critical to a 

criminal defense as cross-examination, and it is those 

capacities, not the mere risk of “strategic blunders by the 

defense,” Maj. Op. at 13, that are threatened by the majority’s 

disposition. It is not enough that some defense lawyer be 

present to object when necessary; that lawyer must also have 

the knowledge necessary to carry forward the representation 

through the defense case-in-chief and closing argument. 

Nothing can substitute for observing and listening to live 

testimony, watching the jurors, and consulting with the 

defendant in preparing for cross-examination, shaping the 

evidence the defense will present during its case-in-chief, and 

structuring closing argument. 

Neither the majority nor either party has found a case 

with facts analogous to this one. The best the majority can 

muster is United States v. Griffiths, 750 F.3d 237, 239 (2d Cir. 

2014) (per curiam). But Griffiths is an apple to our orange. 

First, the case involved a two-week trial on a three count 

indictment for false statements, obstruction of justice and mail 

fraud; serious charges no doubt, but far from the bulk, 

complexity and seriousness of this case. Second, while 

replacement counsel was brought in to present closing 

arguments after the defense lawyer suffered a debilitating 

stroke at the close of the evidence, such counsel had the aid of 

the defense paralegal who had been present for the entire 
18

trial.

2

 Finally, and most significantly, the defendant in 

Griffiths refused to consent to a mistrial, so this was not a

case where the alleged trial impairment was due to actions of 

the government or the trial court, as it is here.

3

 In line with 

Griffiths, courts have declined to reverse midtrial substitutions 

of counsel only where the circumstances ensured that an 

incapacitated defense attorney’s knowledge of the case would 

not be lost to replacement counsel. E.g., United States v. 

Ortiz-Martinez, 1 F.3d 662, 667 (8th Cir. 1993) (attorney who 

took ill was still present at trial to advise replacement 

 2 As explained above, despite the majority’s speculation that Wicks 

had “some capacity to accept telephone calls” after her 

hospitalization, Maj. Op. at 5, at the time the District Court denied 

the mistrial there was no reasonable expectation that she would be 

able to assist significantly in Wilson’s defense.

3 For that reason, any double jeopardy concern is a red herring on 

our facts. Wilson himself moved for a mistrial, and the “general 

rule is that the defendant's motion for, or consent to, a mistrial 

removes any double jeopardy bar to reprosecution.” Oregon v. 

Kennedy, 456 U.S. 667, 683 (1982). See also 2A CHARLES ALAN 

WRIGHT & PETER J. HENNING, FEDERAL PRACTICE AND 

PROCEDURE § 440 (4th ed. 2009). But if the circumstance were to 

arise in the future where a defendant refused to consent to a mistrial 

after his lawyer’s mid-trial incapacitation, I note that courts 

regularly conclude that the “lengthy delay” required for 

replacement counsel to prepare constitutes “manifest necessity” that 

justifies declaring a mistrial without a double jeopardy bar to 

retrial, even if the defendant objects to a mistrial. United States v. 

Williams, 717 F.2d 473, 475 (9th Cir. 1983); see also United States 

v. Tolliver, 937 F.2d 1183, 1188 (7th Cir. 1991); United States v. 

Von Spivey, 895 F.2d 176, 178 (4th Cir. 1990); Hudson v. Rushen, 

686 F.2d 826, 831 (9th Cir. 1982); United States v. Wayman, 510 

F.2d 1020, 1028 (5th Cir. 1975). I know of no case in which 

defense counsel’s incapacitating illness was not found to constitute 

manifest necessity. 
19

counsel); United States v. Sonnenschein, 565 F.2d 235, 235

(2d Cir. 1977) (new counsel had been prepared to try the case 

from the beginning of trial). 

III.

The majority fears that presuming prejudice in Wilson’s 

case would “sweep virtually every mid-trial substitution under 

Cronic’s blanket rule,” Maj. Op. at 14, but the Court confuses 

analysis under Cronic with automatic reversal. Just because 

all mid-trial substitutions where replacement counsel missed 

earlier parts of trial should be analyzed under Cronic’s rubric

does not mean all substitutions violate the Sixth Amendment. 

See Perry, 488 U.S. at 279-81 (affirming that “direct 

governmental interference with the right to counsel” is 

prejudicial per se, but finding no constitutional error in order 

prohibiting defendant from conferring with his attorney 

during a fifteen-minute break in his testimony); Mudd, 798 

F.2d at 1514 (“We thus do not find that all orders restricting 

the discussion of testimony constitute a violation, no matter 

what their duration; . . . [w]hen these sixth amendment 

violations occur, however, we agree with those circuits that 

have applied a per se reversal rule.”). The Court need only 

hold that, when defense counsel is incapacitated mid-trial 

through no fault of the defendant, and no replacement 

attorney is available who observed the testimony of key 

government witnesses against the accused and participated in 

material consultations with the defendant, the Constitution 

requires a mistrial. 

My colleagues reply that determining situations in which 

prejudice is presumed with such a degree of specificity would 

“replac[e] ‘case-by-case litigation over prejudice with caseby-case litigation over prejudice per se.’” Maj. Op. at 15 

(quoting Scarpa v. Dubois, 38 F.3d 1, 14 (1st Cir. 1994)). 
20

The First Circuit opinion the majority cites for this 

proposition arose in a completely different context: it dealt 

with an ineffective assistance claim based on defense 

counsel’s trial error, which the defendant argued was so 

egregious that the court should presume prejudice. The 

Scarpa court explicitly cautioned that “attorney error, even 

when egregious, will almost always require analysis under 

Strickland’s prejudice prong.” Scarpa, 38 F.3d at 14

(emphasis added). The Supreme Court later made precisely 

the same point, explaining that, when it comes to defense 

counsel performance, prejudice will only be presumed if 

counsel “entirely fail[ed] to subject the prosecution’s case to 

meaningful adversarial testing,” a distinction that “is not of 

degree but of kind.” Bell, 535 U.S. at 697. As I explain 

above, however, an impediment to the defense affirmatively 

erected by the government’s objection to a mistrial is wholly 

different from defense counsel blunder. 

In addition, even on its own terms, Scarpa is 

unconvincing. The First Circuit reasoned that it was 

inappropriate to presume prejudice when the court must 

examine the trial record to detect whether the error occurred. 

Scarpa, 38 F.3d at 14 (“[O]nce it is necessary to examine the 

trial record in order to evaluate counsel’s particular errors, 

resort to a per se presumption is no longer justified by the 

wish to avoid the cost of case-by-case litigation.”). Yet 

reviewing the trial record is precisely must be done even in 

cases where the application of prejudice per se is 

unchallenged. See, e.g., Green, 809 F.2d at 1260-61 

(analyzing large portions of trial transcript to determine that 

counsel was absent during government witness testimony that 

inculpated the defendant). And, contrary to the majority’s 

exhortation not to frame the circumstances in which the Court 

should presume prejudice too narrowly, the Supreme Court 

has admonished us to define these situations with some 
21

specificity. See Woods v. Donald, 135 S. Ct. 1372, 1377 

(2015) (framing question as applicability of Cronic rule to 

counsel’s absence during “testimony regarding codefendants’ 

actions”); Wright, 552 U.S. at 125 (“Our precedents do not 

clearly hold that counsel’s participation by speakerphone 

should be treated as a ‘complete denial of counsel,’ on par 

with total absence.”). 

Presumptive prejudice as described by Strickland and 

Cronic is not an historical curio, kept in the reliquary cabinet 

to be taken out and marveled at but never employed in future 

cases, no matter how much they fit its pattern. Surely, if there 

are cases in which prejudice should be presumed, this is one. 

Wilson was convicted of Middleton and Bradley’s murders 

solely based on the testimony of witnesses who claimed that 

he had confessed his involvement to them; no eyewitnesses 

testified and no physical evidence connected him to the crime. 

Replacement counsel missed all of that and more, even 

venturing to another continent during the trial, and prior 

counsel was under doctor’s orders not to return to work. 

Under those circumstances, no “lawyer, even a fully 

competent one,” Cronic, 466 U.S. at 659-60, having missed 

so much of the live testimony and the consultation with the 

defendant about the proceedings, would be able “to 

participate fully and fairly in the adversary factfinding 

process” on the defendant’s behalf. Herring, 422 U.S. at 858. 

Wilson had a right to counsel who “had been there” at all 

critical stages to carry forward this defense at trial, and with 

Wicks’ incapacitation, the prosecutors obtained a strategic 

advantage that resulted in an uneven playing field. Under the 

teachings of Strickland and Cronic, this was presumptively 

prejudicial.

Affording Wilson a new trial would undoubtedly have 

required the investment of additional judicial resources. It is 
22

understandable that, four months into trial, the District Court 

was loath to declare a mistrial, sever Wilson from his codefendants, and schedule a new trial against him at the 

conclusion of the main event. But that is what the Sixth 

Amendment and due process required. Because this 

constitutional violation requires reversal, I would not reach 

the other crimes evidence and Brady issues.

Accordingly, I dissent.