I . a a k1 SUPERIOR COURT OF THE DISTRICT OF COLUMBIA CRIMINAL DIVISION FELONY BRANCH as UNITED STATES OF AMERICA Case Nos.: 2015 11374 2015 17208 v. 2016 2637 2016 CF2 14083 MARCUS KING 2016 CF2 14084 ANDRE DUDLEY CHRISTOPHER PROCTOR Judge: Robert Morin Status Date: September 29, 2016 UNITED MOTION FOR JOINDER The United States respectfully moves the Court, pursuant to Criminal Rule 13, to join the indictment charging defendants Marcus King and Christopher Proctor with conspiracy and Obstruction of justice (cases 2016 CF2 14083 and 2016 CF2 14084) with the indictment charging defendants King, Proctor, and Andre Dudley with murder and related offenses (cases 2015 11374, 2015 17208, and 2016 2637). The defendants are charged in a 64-count indictment with second degree murder while armed and related Offenses in connection with a shootout the defendants engaged in on August 15, 2015, on a public street in Washington, DC. The Government?s evidence at trial will establish that at approximately 4:48 pm, Marcus King and Christopher Proctor were standing at or near the Log Cabin liquor store at the intersection of 7th and Streets, NW, each armed with a ?rearm, when they ?red multiple shots at a red 300 vehicle, being driven by Andre Dudley, which was traveling east on Street. At the time, Dudley had popped out of the sunroof The Government has included only the facts relevant to the instant Motion. The foregoing is not a full recitation of the Government?s anticipated evidence at trial. 1 of the vehicle and pointed a ?rearm towards the corner of the intersection. One of the bullets from the shootout struck Matthew Shl?onsky, an innocent bystander who was walking north on 7th Street, near the entrance to the Shaw/Howard Metro Station. Immediately after the shootout, Dudley, Proctor, and King eachfled the area in separate vehicles. Dudley drove eaSt on Street. During Dudley?s ?ight, in circumstances not relevant here, Dudley assaulted several other individuals Proctor entered a dark-colored vehicle and headed south on 7th Street. Proctor exited the vehicle in front of the Lincoln Westmoreland Apartments, located at 1730 7th Street NW, and ran inside the building. Proctor was identi?ed by several witnesses based on the surveillance footage from the apartment building. Meanwhile, King ?ed the scene in a white vehicle after being picked up on Street. Shortly after the shootout, detectives conducted a recorded non-custodial interview of King, during which he admitted to shooting at the red The Government?s investigation revealed that King and Proctor are friends who regularly hung out near the area of the shooting. Moreover, cell phone records demonstrate that Proctor and King called each other within minutes of the shooting. On August 21, 2015, King was arrested for Mr. Shlonsky?s murder, in case number 2015 CH 11374. On February 22, 2016, Proctor was arrested for the murder, in case number 2016 2637. Both defendants have been held without bond at the DC. Jail since their arrests. On April 27, 2016, following the presentation of evidence regarding the murder of Mr. Shlonsky, a grand jury indicted King, Proctor, and Dudley as co-defendants on multiple charges 2 Additional evidence, including cell site data and DNA evidence from shells casings on the scene, connects King to the murder. for their respective roles in his murder. On June 1, 2016, all three co-defendants were arraigned before Judge Robert Morin. On June 2, 2016, Proctor placed several phone calls ?'om the DC. Jail.3 On the calls, Proctor referenced a ?kite? that King had sent to Proctor.4 Proctor stated that he was upset that King did not read a letter to the judge saying that Proctor had nothing to do with the shooting. On June 14, 2016, pursuant to search warrants, detectives recovered from the jail cells of both King and Proctor written correspondence from each other. In particular, attached as Exhibit A is a copy of some of the materials recovered ?om King?s jail cell. The correspondence contains a ?kite? written by Proctor to King in which Proctor urges King to write a letter telling the judge that Proctor did not have anything to do with the August 15 shooting. Proctor wrote to King: ?Oh ok now a lil help for when writin the letter. So I can help too brah.? Proctor even provided a ?draft? letter for King to copy and sign. Thereafter, King drafted a letter addressed to the judge, as demonstrated in Exhibit A. King?s letter copies most of the formatting and verbiage suggested by Proctor. On August 31, 2016, a grand jury indicted King and Proctor on charges of conspiracy to obstruct justice and obstruction of justice. Both Superior Court Criminal Rule 13 and DC. Code Section 23-312 provide that ?[t]he court may order two or more indictments or informations, or both, to be tried together if the 3 The DC. Department of Corrections regularly records inmates? phone calls. Inmates are informed of this fact. 4 Proctor referred to King by King?s nickname, ?Chi Chi.? A kite is a note passed between units or cells at the jail. offenses . . . could have been joined in a single indictment or information. The procedure shall be the same as if the prosecution were under such single indictment or information.? The question of whether two indictments ?could have been joined in a single indictment? is governed by Rule 8 (?Joinder of Offenses and of Defendants?). Speci?cally, the question of whether multiple defendants charged with multiple offenses can be tried together is governed by Rule Jackson v. United States, 623 A.2d 571, 578 (DC. 1993). Rule 8(b) permits multiple defendants to be tried together on multiple counts if the defendants ?are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses.? The Court of Appeals has allowed joinder under Rule 8(b) for the independent reasons of (1) ?cases in which one offense leads logically to the other? and (2) ?cases in which the offenses are part of a common scheme and are so closely connected in time and place that necessarily proof of the two crimes overlaps substantially.? Ray v. United States, 472 A.2d 854, 858 (DC. 1984) (citation omitted). The Court of Appeals has squarely held that a defendant who participates only in a cover- up is properly joined under Rule 8(b) with the defendants who participated in the underlying crime. Bush v. United States, 516 A.2d 186, 191-92 (DC. 1986). In light of this holding, charges against defendants who participate in both the cover-up and the underlying offense are of course properly joined together under Rule In Bush, the appellant was charged with obstruction of justice based on his efforts to conceal the identities of the other defendants, who were charged with robbery and burglary. Id. at 190. The court held that the appellant?s ?cover-up surely was a sequel to those [underlying] crimes,? and thus the appellant participated in the same ?series of . . . transactions? as the other defendants such that his trial was properly joined with the others?. Id. at 192. Here, defendants King and Proctor are charged with conspiracy and obstruction of justice based on their efforts to cover-up Proctor?s involvement in the underlying shooting. The conspiracy and obstruction of justice are thus part of the same ?series of transactions? as the underlying shooting. Therefore, the indictment charging King and Proctor with conspiracy and obstruction of justice is properly joined with the indictment charging King, Proctor, and Dudley with murder and related offenses. In addition, the equities support joinder, because the evidence of the conspiracy and obstruction charges which consists of King and Proctor?s attempts to falsely exculpate Proctor of the murder charges would itself be admissible in the underlying murder trial. This ??reciprocal? or ?mUtual admissibility? doctrine? suggests that joinder is appropriate if ?the rules of evidence would have permitted the admission of evidence of each crime at the separate trial of the other.? Cox v. United States, 498 A.2d 231, 237 (DC. 1985) (citing Drew v. United States, 331 F.2d 85, 90 (DC. Cir. 1964)). Two defendants? efforts to obstruct justice by falsely exculpating one of them of murder demonstrates both defendants? consciousness of their guilt of the underlying murder. This evidence is therefore both admissible to prove, and properlyjoined with, the underlying charges. See Washington v. United States, 434 A.2d 394, 395 (DC. 1980) (en banc) (bail jumping charge properly joined with underlying charges, in part because evidence of bail jumping would be admissible to show consciousness of guilt of underlying charges). The Court of Appeals has repeatedly recognized that a joint trial ?promotes the goal of trial economy and assures that a criminal transaction need only be proved once.? Coleman v. United States, 619 A.2d 40, 46 (DC. 1993) (internal quotation marks and brackets omitted). Here, that ef?ciency is manifested by a joint trial against all defendants on both the murder and related offenses and the conspiracy and obstruction of justice. Indeed, the trial for the conspiracy and obstruction of ustice charges will necessarily include the evidence relating to the shootout and murder. CONCLUSION For the foregoing reasons, the government respectfully submits that the indictments should be joined. Respect?illy submitted, CHANNING D. PHILLIPS UNITED STATES ATTORNEY DC Bar 415793 3/ Je?ey S. Nestler David Misler, DC Bar 991475 Jeffrey S. Nestler, DC Bar 978296 ASSISTANT U.S. ATTORNEYS 555 Fourth Street, N.W., Room 9419 Washington, DC 20530 Phone: (202) 252-7277 Fax: (202) 353-3906 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on September 7, 2016, a copy of the foregoing was served by email on counsel for the defendants, Janet Mitchell, Sara Kopecki, and Jon Norris. 3/ Je S. Nestler Jeffrey S. Nestler Proposed order SUPERIOR COURT OF THE DISTRICT OF COLUMBIA CRIMINAL DIVISION FELONY BRANCH UNITED STATES OF AMERICA Case Nos.: 2015 CF 1 11374 2015 17208 v. 2016 2637 2016 CF2 14083 MARCUS KING 2016 CF2 14084 ANDRE DUDLEY CHRISTOPHER PROCTOR Judge: Robert Morin Status Date: September 29, 2016 ORDER Upon motion of the United States, pursuant to Superior Court Criminal Rule 13, it is ORDERED that the indictment ?led on April 27, 2016, in cases 2015 11374, 2015 17208, and 2016 2637, is hereby JOINED with the indictment ?led on August 31, 2016, in cases 2016 CF2 14083 and 2016 CF2 14084. Date Judge Robert Morin Exhibit A Materials recovered from Marcus King?s jail cell (June 14, 2016) Am.? ..-. Rob Morin .. th-Oetzc, Prinz.- THC CAFE (4551' MK ??m-Sg?j 1 ?av? $116.22.. ?Ca Gaby/1:5) $3312qu "rm-c suo?r's mu; was, 114% new ?buolosz?t? LJHOIU Lam Wamwe AU (swam ?1'pr ?SH-ocrnw KAT maka? 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