Court of Appeals Reverses Convictions on Kastigar Grounds

On January 30, 2001, a D.C. jury found Kenneth Aiken guilty of felony threats, felony destruction of property, stalking, and simple assault.  He was also found guilty of five counts of misdemeanor destruction of property, and two counts of violating a procedural order.  The charges were brought after Aiken testified at a civil protection hearing against him while he had purported derivative use immunity.  Aiken appealled his convictions on the ground of ineffective assistance of counsel, among other things, for failing to request a Kastigar hearing to determine whether evidence used by the prosecution was produced through the result of his testimony. 

In 2008, the Court of Appeals agreed and remanded Aiken’s case to a trial court to hold a Kastigar hearing to determine whether the government .  Aiken v. United States, 956 A.2d 33, 49-50 (D.C. 2008). 

On remand, the trial court found that the evidence admitted at trial against Aiken was discovered independently of his testimony at the hearing and reaffirmed his convictions.  In an opinion by the Court of Appeals handed down today, the Court of Appeals disagreed with the trial court’s assessment and reversed three of Aiken’s convictions. 

The Court held that the government had not met its burden of proving that the evidence it produced at trial was not independently discovered outside of the hearing.  Nevertheless, the Court affirmed most of Aiken’s convictions on the grounds that their admission was harmless error beyond a reasonable doubt and that the failure of his counsel to request a hearing did not overly prejudice the defendant. 

The Court did reverse Aiken’s two convictions for misdemeanor destruction of property as well as his conviction for felony threats.  The case can be found here:


Judge Nebeker Gives an MPD Detective Some Props

Today, in a fairly uninteresting criminal appeal, the Court, in an opinion by Judge Frank Nebeker, upheld the conviction of Andre Cooper for fraud. 

What was more striking was the position taken by the Court on the actions of MPD Detective Vince Tucci, a member of the Financial Crimes and Fraud unit, on his handling of the investigation.  This involved the seizure of a cell phone of the suspect during a sting operation and the search its memory bank.  The Court wrote:

“It should be pointed out that Detective Tucci and the MPD handled the search of the cell phone in a commendable way. Detective Tucci seized Cooper’s cell phone on the 16th.  Instead of immediately accessing the cell phone’s memory bank for evidence, the detective first obtained a warrant to search its memory bank. After obtaining a search warrant, the detective accessed the seized phone’s memory bank and telephone records, and the telephone records of the Maryland phone number that was associated with the December 13, 2004, order.”

I say attaboy to Detective Tucci for showing concern for the Constitution and the 4th Amendment and demonstrating once again that good, solid detective work happens when police pay attention to and follow the law.  The Court did not analyze whether a warrant was needed for a search of a cell phone memory card but that’s because it didn’t have to.  Even though the issue, as the Court pointed out, is unresolved, the detective was smart enough to wait for a search warrant to ensure that whatever he discovered would be admissible at trial.  This is a smart and Constitution concious detective and I’m glad the Court recognized that. 

The case is Cooper v. United States and is available here:

Today’s Holding in Hickey v. Bomers: Some Important Lessons for Both D.C. Employers and Employees

Today, the Court of Appeals reversed an Office of Administrative Hearings order awarding unemployment benefits to a fired legal secretary.  There were two main issues the Court had to decide in this case: (1) whether the fired secretary an actual employee or an independent contractor, and (2) whether the Administrative Law Judge (ALJ) had erred in finding that the secretary was not terminated for “misconduct.” 

The ALJ had found that the secretary was in fact an employee and not an independent contractor (an important distinction as she would not have been eligible for unemployment benefits if an independent contractor) and found that the secretary’s “absenteeism” did not constitute misconduct.  The ALJ thus awarded unemployment benefits. 

Today, the Court upheld the finding that the secretary was in fact an employee and not an independent contractor.  However, the Court reversed the ALJ’s finding that the secretary had not been fired for “misconduct” and thus reversed the award of unemployment benefits.  The Court concluded that excessive absenteeism and a failure of the secretary to notify her boss as to when she would be able to return to work after not showing up due to a claimed hospital illness constituted misconduct. 

A seemingly small and ordinary case, there are some important lessons for any employer and employee in the District of Columbia it helps teach:

1.  The fact that an employee files an IRS 1099 form does not serve to transform an employee into an independent contractor.  In this case, the legal secretary had filed independent 1099 forms with the IRS and her boss paid none of her taxes.  As the Court (citing Judah v. Reiner, 744 A.2d 1037, 1041 (D.C. 2000)) pointed out, the 1099 form is often reffered to as the “independent contractor’s tax form.”  Nevertheless, it was not enough to undermine other factors that weighed in favor of her being an employee.  This holding serves as an important reminder to employers who are looking to avoid tort or contract liability.  The mere filing of 1099 tax returns will not lead to a classification of an employee as an independent contractor.

2.  Excessive absenteeism does constitute misconduct.  Although misconduct and Gross Misconduct are categorized differently as reasons for terminating an employee (and require different standards of proof for an employer).  Nevertheless, they both have the same end result.  If you were terminated for either reason, you will be denied unemployment benefits.  This is an important lesson for all employees in this wretched economy. 

3.  If you are an employee who faces a medical emergency requiring a prolonged absence from work, you need to inform your employer and keep your employer up to date on when you will be able to return to work.  Here, the secretary had left work at noon on December 11, 2008 and had unplanned surgery on December 13, 2008.  She called her boss on December 12, 2008 to let him know that she would be going to the hospital.  After that though, she failed to communicate with him for several weeks.  She failed to provide any documentation of her hospitalization.  When they did communicate again, she failed to give him a time frame as to when she would return and did not call him a week later when requested to discuss the return.  It was then that he decided to terminate her. 

Obviously, missing work due to an illness is not misconduct.  But failing to inform your boss of when you will return to work after prolonged illness and failing to provide any record of your hospitalization is misconduct.  It’s an important reminder for employees on the course of conduct they should take whenever they face an unplanned illness and have a prolonged absence: (1) promptly notify your employer, (2) continue to communicate with your employer about when you will be able to return to work, and (3) provide some kind of record (a doctor’s note) if asked for it.  Failure to follow these steps, if you are terminated, can result in the denial of unemployment benefits (something that is quite painful in this economic state).

The case, Hickey v. Bomers, is here:

Welcome to 430 E Street NW!!!!

I have started up this blog to report on and publicize the decisions of the D.C. Court of Appeals.  The D.C. Court of Appeals is a little known but powerful and important court.  No it’s not the D.C. Circuit (a court with which it’s often confused) but it decides many important cases.  For example, last year the Court, sitting en banc, held that an voter initiative to define marriage as between one man and one woman could not be placed on the D.C. ballot.  The Court is also the court that held in the 1980’s that Congressional measures to govern D.C. required a presidential signature.  

Created in 1971 in anticipation of the 1974 Home Rule Act, the D.C. Court of Appeals is basically our 51st state supreme court (although it is technically a federal Article I court, Congress has designated the D.C. Court of Appeals as a state supreme court) and is the final arbiter of all District of Columbia Law.   As one veteran D.C. appellate litigator once explained to a group of confused lawyers attempting to litigate in the District of Columbia: “they’re the ones who issued your license to practice law.”  

The Court consists of 9 full time judges and a cadre of senior judges who actively hear cases.  Most cases are heard by three judge panels though the Court will sometimes hear cases with the full court sitting en banc.  All judges are appointed by the president and confirmed by the Senate.   Although this may change with the recent retirements of three of the court’s judges (Noel Kramer, Inez Smith Reid, and Vanessa Ruiz), the D.C. Court of Appeals was the first high court in the country to have a majority of women judges and is likely the first to have been comprised of a majority of racial minorities (four judges were African-American and one judge was Latino).  

So for anyone out there interested in this court or its decisions, welcome to 430 E Street NW!