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Leon Robinson and Shanika Robinson, Appellants, v. United States, Appellee.
Before Glickman and Blackburne–Rigsby, Associate Judges, and Steadman, Senior Judge. Appellants Shanika Robinson and Leon Robinson were convicted of a number of offenses committed in connection with the armed robbery and murder of Shahabuddin Rana on August 18, 2009.1 The principal issue before us, raised by Shanika Robinson, concerns the mens rea required for an aider and abettor to be subject to the additional punishment that is authorized by D.C.Code § 22–4502 (2012 Repl.) when a violent or dangerous crime was committed while armed. We hold that in order to be subject to the “while armed” enhancement of § 22–4502, an unarmed aider and abettor must have known that the principal offender (or, if appropriate, another accomplice) was armed. Where direct evidence of actual knowledge is lacking, the government must present sufficient circumstantial evidence for the trier of fact to infer that the aider and abettor knew the principal was armed. Because the trial court in the present case erroneously instructed the jury that the aider and abettor need only have reason to know that the principal offender was armed, and not necessarily actual knowledge of that fact, we must reverse Shanika Robinson's convictions for committing four offenses—first-degree felony murder, second-degree murder, second-degree burglary, and robbery—”while armed.” On remand, the trial court will have discretion, on the government's request, to enter judgments of conviction against Shanika Robinson on the lesser included offenses of (unarmed) second-degree burglary and (unarmed) robbery, in lieu of retrying her for the commission of those two offenses while armed. However, for reasons we shall explain, a similar option will not be available with respect to Shanika Robinson's convictions for felony murder and second-degree murder while armed. Ms. Robinson does not challenge her other convictions, which are not affected by the error, and which we therefore affirm. We also affirm Leon Robinson's convictions, as none of them are affected by the erroneous instruction on aiding and abetting liability and his claims of other error are not meritorious. I. The Trial A. The Government's Evidence According to the evidence presented by the government, Shahabuddin Rana, the decedent, owned and operated a convenience store called Pizza Mart in Northeast Washington, D.C. He was assisted in running the store by his brother Allauddin Rana, who had come to this country from Pakistan in 2006. To enable his brother to remain in the United States after his initial visa expired, Shahabuddin arranged a sham marriage between Allauddin and appellant Shanika Robinson in October 2008. Shahabuddin agreed to pay Shanika $500 a week for her continuing cooperation in the sham.2 In the summer of 2009, however, the imposture began to unravel. Shanika Robinson had a miscarriage, and Allauddin, angered that she had been carrying another man's child, asked his brother for help in obtaining a divorce. Shahabuddin told Shanika the sham marriage arrangement was over and stopped paying her. Allauddin testified at trial that Shanika pressed for a resumption of the weekly payments. On July 22, 2009, she and Allauddin attended an interview with the Immigration and Naturalization Service in furtherance of Allauddin's application to become a permanent resident. The interview did not go well and Shahabuddin's payments to Shanika did not resume. Nonetheless, Shanika continued to urge the Ranas to restart the payments. They refused. How Shanika reacted to Shahabuddin's cessation of payments was a central point of contention at trial. The government's main witness was Isaiah Genus, a man with whom Shanika had maintained an intimate relationship while she was married to Allauddin. Genus testified pursuant to a cooperation agreement that allowed him to plead guilty to conspiracy and second-degree murder for his complicity in Shahabuddin's murder. Phillip C. Zane for appellant Leon Robinson. Justin Murray, Public Defender Service, with whom James Klein and Alice Wang, Public Defender Service, were on the brief, for appellant Shanika Robinson. John P. Gidez, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman, Suzanne Grealy Curt, Michelle D. Jackson, and Jocelyn S. Ballantine, Assistant United States Attorneys, were on the brief, for appellee.
Early on Tuesday morning, Genus testified, they embarked again: Shanika drove him and Leon to the Pizza Mart in Cap's car. Genus testified that he was not armed and that he did not know Leon was carrying a weapon. On the way, Shanika gave the men latex gloves to wear so that they would not leave fingerprints. Shanika went to the door of the store and induced Shahabuddin to open it for her. When he did, Leon and Genus emerged suddenly from behind Shanika and barged in. According to Genus, Shanika entered the Pizza Mart last and closed the door behind her. Immediately upon entering, Leon started stabbing Shahabuddin with a knife he had brought. (Genus said that this was not the same knife as the one Leon had displayed three days earlier.) Genus and Leon pulled Shahabuddin into a storage room in the back of the Pizza Mart to prevent him from escaping. Once the three men reached the back room, Shahabuddin tried to wrest the knife from Leon's hand. Leon lost control of the weapon and it fell to the floor. He then grabbed a hammer that happened to be lying within reach and struck Shahabuddin in the head with it, repeatedly. Meanwhile, Genus, who had joined in the attack by punching and kicking Shahabuddin, picked up the knife and began stabbing him with it.
Genus's description of this murder was corroborated by the subsequent autopsy; the medical examiner found that Shahabuddin had been stabbed twelve times and had suffered multiple blunt force injuries. The cause of death was determined to be stab wounds to Shahabuddin's torso and blunt force trauma to his head. The medical examiner also reported that Shahabuddin's body was severely burned. Genus explained at trial that Shanika entered the storage room after the attack was over and helped him and Leon set fire to the body.
Before they fled the Pizza Mart (taking, Genus said, “all of the evidence with them”), Shanika took cigarettes, cigars, bleach, peroxide, and cash from the store. These same items were found to be missing when the murder was discovered, according to Allauddin.
Returning to Shanika's house, appellants and Genus burned their bloody clothing on a backyard grill and cleaned the hammer and knife used in the attack with the peroxide and bleach stolen from the Pizza Mart. They then disposed of the weapons by throwing them in a dumpster. Shanika told Genus she had cleaned the car with bleach to remove any blood stains; however, after the police seized the vehicle a few weeks later, they found what proved to be traces of Shahabuddin's blood inside.
Based on the information provided to the police by Taylor, Shanika was arrested and her home was searched on August 28, 2009. During the search, the police recovered a notebook in which Shanika had written, “Take Cap car of the early morning[,] go to the Pizza Mart bout four in the morning[,] face stand a few feet away from the door. We can do it one or two ways.” Leon and Genus were arrested soon afterward.
In his testimony, Leon denied having been at the Pizza Mart when Shahabuddin was murdered or during the abandoned robbery attempt three days earlier. He likewise denied having participated in disposing of evidence. Leon claimed he did not know Shanika's marriage to Allauddin was a sham, was never told the Ranas owed Shanika money, and was never asked to help Shanika rob Shahabuddin.
In its final charge to the jury, the trial court instructed, inter alia, on the mens rea required for aiding and abetting liability. In general terms it told the jury that to find a defendant guilty of a crime as an aider and abettor, it would have to find that the defendant “knowingly associated him or herself in the commission of the crime, that he participated in the crime as something that he or she wished to bring about and that he or she intended by his actions to make it succeed.” 6 More specifically, with respect to each substantive offense alleged in the indictment, the court told the jury that the intent the government had to prove was the same whether the defendant was the principal offender or an aider and abettor. There was no objection to these instructions, and no issue is raised about them on appeal. However, the instructions did not specifically address the mens rea necessary for an aider and abettor to be found guilty of an offense allegedly committed while armed. There was no request for such an instruction, and no objection to its omission.
With regard to 2nd Degree Burglary While Armed, does the defendant—if an aider and abettor—have to have personally entered the Pizza Mart to be found guilty of this charge?
Also, does aiding and abetting apply to element 3 [the while armed element] of 2nd Degree Burglary While Armed?
At what point of time during the commission of the crime of second degree burglary while armed does one need to know or have reason to know that a principal is armed to be an aider and abettor?
For a principal to be guilty of second-degree burglary while armed, he or she must be armed at the time of the entry․ So the aider and abettor must know or have reason to know that at the time of the entry into the Pizza Mart by the principal that the principal is, in fact, armed or would be armed.
Shanika Robinson claims the trial court erred by instructing the jury, in response to its inquiry, that an aider and abettor may be found guilty of second-degree burglary while armed if she merely had “reason to know” the principal offender was armed. The government now concedes this instruction was erroneous. For the reasons that follow, we agree, and we conclude that Shanika's convictions for the four armed offenses—armed robbery, armed second-degree burglary, armed second-degree murder, and felony murder while armed (predicated on the armed robbery)—must be vacated, because we cannot say beyond a reasonable doubt that they were unaffected by the error. On remand, however, the government will have the option of accepting the entry of judgments of conviction for unarmed robbery and second-degree burglary in lieu of retrying Shanika Robinson on those armed counts.
Leon Robinson's primary claim on appeal is that the trial court erred by refusing to grant his motion to sever his trial from that of his co-defendant, because he and Shanika presented irreconcilable defenses. We conclude that the court did not abuse its discretion by denying severance, and that Leon's other claims are meritless. Accordingly, we affirm his convictions (subject to the merger of certain counts, which should be effectuated on remand).
We perforce hold that the trial court in the present case erred by instructing the jury, in response to its inquiries, that a defendant could be convicted of second-degree burglary while armed as an aider and abettor if she had reason to know the principal perpetrator of that crime was armed.
The government argues that the instructional error was harmless as to all of Shanika's convictions other than the one for the charge to which the jury's inquiries and the court's responses specifically related, second-degree burglary while armed. This is so, the government contends, because even if Shanika did not know at the time her co-conspirators entered the Pizza Mart that they were armed, the evidence was overwhelming that she herself entered the Pizza Mart and was “present, participating, and aware of the presence of weapons” when the armed robbery and murder were committed. Shanika Robinson disagrees. She argues that the instructional error compromised the jury's verdict finding her guilty of all the “while armed” offenses—not only second-degree burglary while armed, but also the charges of armed robbery, felony murder while armed with the predicate felony of armed robbery, and second-degree murder while armed. For as the jury was instructed, even if it believed that Shanika did not know Genus or Leon was armed, the “while armed” element of each of the offenses was satisfied if she merely had reason to know it.
Judging by the jury's verdict and the questions it asked the court during its deliberations, we think it is reasonably possible the jury found Shanika guilty of each “while armed” offense as an aider and abettor without finding she knew her confederates were armed. Shanika, it will be recalled, denied intending to kill Shahabuddin or knowing that her confederates were going to do so, and she denied knowing they were armed. Moreover, she claimed that she did not enter the Pizza Mart while Genus and Leon were inside it committing the murder and robbery. Instead, she testified, she left them after they went inside and waited for them back at the car. Despite Genus's testimony to the contrary, there is reason to believe the jury credited Shanika on these points.
Second, the jury's final note to the court before it returned its verdict (asking when during the commission of an armed burglary an aider and abettor needs to know or have reason to know that the principal is armed, and whether knowing or having reason to know after the entry is sufficient) indicates that the jury credited Shanika's testimony that she did not know Genus or Leon was armed as of the time the men entered the Pizza Mart.
Third, we have no sound basis to conclude the jury must have found that Shanika knew even by the time of the murder and/or the robbery inside the Pizza Mart that Genus and Leon were armed. We cannot infer from the inquiry in its note that the jury found Shanika learned the men were armed after they entered the Pizza Mart, because the jury was careful to ask whether “knowing or having a reason to know ” that fact following the entry would suffice. To be sure, if the jury found that Shanika followed Genus and Leon into the store, then we might be confident it also found she knew then that the men were armed. But Shanika denied that she entered the Pizza Mart at any time on the morning of Shahabuddin's murder, and nothing in the jury's verdict shows that it disbelieved her.
In sum, the jury could have found that Shanika drove Genus and Leon to the Pizza Mart only to rob and burglarize it, that she waited for her accomplices in the car after they gained entry, and that she did not enter the Pizza Mart herself at any time during this trip. And the jury could have found that Shanika did not know Genus and Leon were armed until sometime after the robbery and murder were completed, if it all.37 The jury still might have found Shanika guilty of the “while armed” offenses if, misled by the court's erroneous response to the jury note, it thought reason to know the principal offenders were armed was all the prosecution had to show to establish the mens rea required for aiding and abetting those offenses.
Because it is reasonably possible the instructional error caused the jury to misunderstand and misapply the law in finding Shanika Robinson guilty on the “while armed” counts, we cannot find the error harmless with respect to any of them.
It does not necessarily follow that Shanika Robinson is entitled to a new trial on each “while armed” count. While retrial on those counts is certainly an available option, there may be a more tailored alternative: allowing the trial court to enter judgments of conviction, with the consent of the government, for the lesser-included, “unarmed” offenses. This alternative is open to consideration so long as the instructional error did not affect the jury's determination of Shanika's guilt on a given count other than with respect to the “while armed” element of the offense. Because the parties did not address the availability of this option in their briefs prior to oral argument, we requested and have received supplemental post-argument briefing on the question.
The government argues that it would be appropriate to allow the trial court on remand to enter judgment on four unarmed offenses—first-degree felony murder with the predicate of simple robbery, second-degree murder, robbery, and second-degree burglary. Shanika disagrees, however, and urges us to reject that option in this case because the jury was not asked to consider any lesser-included unarmed offenses and because the government, before it responded to our request for supplemental briefing, did not ask this court for any disposition other than outright affirmance of her convictions. In addition to those objections, Shanika argues it would be improper to enter a judgment of conviction against her for either unarmed murder offense, because the instructional error also tainted the jury's findings supporting that offense, or because the jury did not even find all the elements of the “lesser included” offense.
Moreover, we have never held that this option is foreclosed if the jury was not instructed on the lesser-included offense.41 We perceive no reason that should make a difference, as long as we are assured that the jury, in convicting the defendant on the greater offense, necessarily and actually did find all the elements of the putative lesser offense 42 on a record permitting it to do so, and that entry of judgment on the lesser offense will result in “no undue prejudice” to the accused.43 In declining to request an instruction on a lesser-included offense, the defendant may have preferred to make an all-or-nothing gamble on the trial's outcome; but where the defendant has lost that gamble and been found guilty of the greater offense, he is not aggrieved if his conviction is reduced to a true lesser-included crime that is supported by the evidence and untainted by error.
Accordingly, with respect to each of Shanika Robinson's four convictions for a “while armed” offense, we may proceed to consider whether the government should have the option on remand of accepting the entry of judgment for a lesser-included unarmed offense. Because the Chapman standard of harmlessness applies, the government bears the burden of persuading us there is no reasonable possibility that the instructional error affected the jury's finding of all the elements of the lesser-included offenses, and that appellant would not be unfairly prejudiced by entry of judgment thereon.
Shanika's conviction for second-degree murder likewise could have been affected by the erroneous instruction that a defendant is liable for her accomplices' use of a weapon if she merely had reason to know they were armed. For as she points out, the jury was permitted to infer from the use of a weapon that a defendant had the heightened mens rea required for second-degree murder.50 Conceivably, therefore, the erroneous instruction could have led the jury to find that Shanika satisfied the heightened mens rea requirement of second-degree murder based on proof that she had a less culpable mental state—not actual knowledge of her accomplices' possession of a weapon, but only reason to know they were armed (a mental state akin to negligence 51 ). If that is what occurred, the erroneous instruction impermissibly lowered the government's burden of proving an essential element (the mens rea ) of unarmed second-degree murder.52 That possibility renders it inappropriate to enter judgment against Shanika on that lesser-included offense.
Accordingly, we reverse Shanika Robinson's convictions for each of the four “while armed” offenses and remand for a new trial on those counts of the indictment. However, in lieu of retrial on the armed robbery and armed second-degree burglary counts, the trial court may, with the consent of the government, enter judgments of conviction against Shanika on the lesser-included offenses of unarmed robbery and unarmed second-degree burglary.
FN1. Supplemental post-argument briefing at the court's request was completed by March 10, 2014.. FN1. Supplemental post-argument briefing at the court's request was completed by March 10, 2014.
FN1. Appellants were indicted and tried on charges of first-degree premeditated murder while armed, second-degree burglary (with intent to steal) while armed, robbery while armed, two counts of first-degree felony murder while armed (with armed second-degree burglary and armed robbery as the predicate felonies), tampering with physical evidence, and conspiracy to rob, murder, commit burglary, and obstruct justice. Leon Robinson was convicted on all counts. Shanika Robinson was acquitted of first-degree premeditated murder and of the felony murder charge based on burglary, but was convicted of the lesser-included offense of second-degree murder while armed and of all the other counts of the indictment, including felony murder while armed based on armed robbery.. FN1. Appellants were indicted and tried on charges of first-degree premeditated murder while armed, second-degree burglary (with intent to steal) while armed, robbery while armed, two counts of first-degree felony murder while armed (with armed second-degree burglary and armed robbery as the predicate felonies), tampering with physical evidence, and conspiracy to rob, murder, commit burglary, and obstruct justice. Leon Robinson was convicted on all counts. Shanika Robinson was acquitted of first-degree premeditated murder and of the felony murder charge based on burglary, but was convicted of the lesser-included offense of second-degree murder while armed and of all the other counts of the indictment, including felony murder while armed based on armed robbery.
FN2. Because appellants share the same last names, as do the two Rana brothers, this opinion often will refer to the four individuals by their first names alone.. FN2. Because appellants share the same last names, as do the two Rana brothers, this opinion often will refer to the four individuals by their first names alone.
FN3. Taylor testified that Shanika was very upset when the Ranas stopped paying her. Claiming to have overheard the conspirators' planning, Taylor said that Shanika had the idea “to go to the Pizza Mart and get [Allauddin's] brother to let her in. She was going to leave the back door opened so that Leon and Ike [Genus] could come in. They was gone beat him up and take the money.” Taylor testified a first attempt at the robbery was aborted because there were too many people at the Pizza Mart. Before the second attempt, Shanika told Taylor she was going to the Pizza Mart and took Cap's car. After Shanika returned, she said “she got [Allauddin's] brother to let her in. She left the back door opened, Leon and Ike came in and everything got crazy.” Shanika also said that “[s]he had to get her licks in too,” and that they took cigarettes, cigars, and money from the Pizza Mart. The conspirators burned their clothes on the grill, and Shanika cleaned the car with bleach.. FN3. Taylor testified that Shanika was very upset when the Ranas stopped paying her. Claiming to have overheard the conspirators' planning, Taylor said that Shanika had the idea “to go to the Pizza Mart and get [Allauddin's] brother to let her in. She was going to leave the back door opened so that Leon and Ike [Genus] could come in. They was gone beat him up and take the money.” Taylor testified a first attempt at the robbery was aborted because there were too many people at the Pizza Mart. Before the second attempt, Shanika told Taylor she was going to the Pizza Mart and took Cap's car. After Shanika returned, she said “she got [Allauddin's] brother to let her in. She left the back door opened, Leon and Ike came in and everything got crazy.” Shanika also said that “[s]he had to get her licks in too,” and that they took cigarettes, cigars, and money from the Pizza Mart. The conspirators burned their clothes on the grill, and Shanika cleaned the car with bleach.
FN4. Shahabuddin had cut her off on prior occasions, Shanika testified, and she had been able to persuade him to resume the payments.. FN4. Shahabuddin had cut her off on prior occasions, Shanika testified, and she had been able to persuade him to resume the payments.
FN5. Shanika also denied providing Genus and Leon with gloves.. FN5. Shanika also denied providing Genus and Leon with gloves.
FN6. See Criminal Jury Instructions for the District of Columbia, No. 3.200 (Rev.2013) (the “Redbook”); see also Wilson–Bey v. United States, 903 A.2d 818, 825 (D.C.2006) (en banc).. FN6. See Criminal Jury Instructions for the District of Columbia, No. 3.200 (Rev.2013) (the “Redbook”); see also Wilson–Bey v. United States, 903 A.2d 818, 825 (D.C.2006) (en banc).
FN8. 903 A.2d 818 (D.C.2006) (en banc).. FN8. 903 A.2d 818 (D.C.2006) (en banc).
FN9. 11 A.3d 1282, 1289 (D.C.2011).. FN9. 11 A.3d 1282, 1289 (D.C.2011).
FN12. Second-degree murder while armed was the only lesser-included offense submitted to the jury.. FN12. Second-degree murder while armed was the only lesser-included offense submitted to the jury.
FN13. See D.C.Code § 22–2104.01(b)(4), (5) (2012 Repl.); see also Keels v. United States, 785 A.2d 672, 685–86 (D.C.2001) (requiring jury determination of existence of statutory aggravating factors).. FN13. See D.C.Code § 22–2104.01(b)(4), (5) (2012 Repl.); see also Keels v. United States, 785 A.2d 672, 685–86 (D.C.2001) (requiring jury determination of existence of statutory aggravating factors).
FN14. (Phillip) Johnson v. United States, 686 A.2d 200, 205 (D.C.1996); see also Cox v. United States, 999 A.2d 63, 69 (D.C.2010).. FN14. (Phillip) Johnson v. United States, 686 A.2d 200, 205 (D.C.1996); see also Cox v. United States, 999 A.2d 63, 69 (D.C.2010).
FN15. Guishard v. United States, 669 A.2d 1306, 1314 (D.C.1995); see also Cox, 999 A.2d at 69.. FN15. Guishard v. United States, 669 A.2d 1306, 1314 (D.C.1995); see also Cox, 999 A.2d at 69.
FN16. Wheeler v. United States, 977 A.2d 973, 987 n. 36 (D.C.2009) as amended by order, 987 A.2d 431 (D.C.2010). Our cases have defined “actual possession” as “the ability of a person to knowingly exercise direct physical custody or control over the property in question.” (Courtney) Johnson v. United States, 40 A.3d 1, 14 (D.C.2012) (emphasis added) (quoting United States v. Hubbard, 429 A.2d 1334, 1338 (D.C.1981)); see also White v. United States, 763 A.2d 715, 724–25 (D.C.2000). Constructive possession likewise entails knowledge of the location of the item, as well as the ability and intention to exercise dominion and control over it. See, e.g., Rivas v. United States, 783 A.2d 125, 129 (D.C.2001) (en banc).. FN16. Wheeler v. United States, 977 A.2d 973, 987 n. 36 (D.C.2009) as amended by order, 987 A.2d 431 (D.C.2010). Our cases have defined “actual possession” as “the ability of a person to knowingly exercise direct physical custody or control over the property in question.” (Courtney) Johnson v. United States, 40 A.3d 1, 14 (D.C.2012) (emphasis added) (quoting United States v. Hubbard, 429 A.2d 1334, 1338 (D.C.1981)); see also White v. United States, 763 A.2d 715, 724–25 (D.C.2000). Constructive possession likewise entails knowledge of the location of the item, as well as the ability and intention to exercise dominion and control over it. See, e.g., Rivas v. United States, 783 A.2d 125, 129 (D.C.2001) (en banc).
FN17. See Wilson–Bey, 903 A.2d at 831 (stating that aiding and abetting liability requires that the accomplice “ ‘in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed’ ”) (quoting United States v. Peoni, 100 F.2d 401, 402 (2d Cir.1938)).. FN17. See Wilson–Bey, 903 A.2d at 831 (stating that aiding and abetting liability requires that the accomplice “ ‘in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed’ ”) (quoting United States v. Peoni, 100 F.2d 401, 402 (2d Cir.1938)).
FN18. Rosemond v. United States, 134 S.Ct. 1240, 1249–50 (2014) (holding that to convict a person as an aider and abettor under federal law prohibiting using or carrying a firearm during a crime of violence or a drug trafficking crime, the government must prove that the person knew in advance that one of his accomplices would be armed). We have looked to the federal courts' interpretation of the federal aiding and abetting statute, 18 U.S.C. § 2, for guidance in construing our own aiding and abetting statute, D.C.Code § 1805 (2012 Repl.). Wilson–Bey, 903 A.2d at 831.. FN18. Rosemond v. United States, 134 S.Ct. 1240, 1249–50 (2014) (holding that to convict a person as an aider and abettor under federal law prohibiting using or carrying a firearm during a crime of violence or a drug trafficking crime, the government must prove that the person knew in advance that one of his accomplices would be armed). We have looked to the federal courts' interpretation of the federal aiding and abetting statute, 18 U.S.C. § 2, for guidance in construing our own aiding and abetting statute, D.C.Code § 1805 (2012 Repl.). Wilson–Bey, 903 A.2d at 831.
FN19. Conversely, “for purposes of aiding and abetting law, a person who actively participates in a criminal scheme knowing its extent and character intends that scheme's commission.” Rosemond, 134 S.Ct. at 1249.. FN19. Conversely, “for purposes of aiding and abetting law, a person who actively participates in a criminal scheme knowing its extent and character intends that scheme's commission.” Rosemond, 134 S.Ct. at 1249.
FN20. See, e.g., Kitt v. United States, 904 A.2d 348, 356 (D.C.2006) ( “[W]here a specific mens rea is an element of a criminal offense, a defendant must have had that mens rea himself to be guilty of that offense, whether he is charged as the principal actor or as an aider and abettor”); see also Collins v. United States, 73 A.3d 974, 981 n.3 (D.C.2013) (in order to convict a defendant as an aider and abettor “ the government was required to show that the accomplice had the same intent necessary to prove commission of the underlying substantive offense by the principal.”); Lancaster v. United States, 975 A.2d 168, 174 (D.C.2009) (“Because armed robbery is a specific-intent crime, the government must prove that the aider and abettor shared the same mens rea required of the principals.”).. FN20. See, e.g., Kitt v. United States, 904 A.2d 348, 356 (D.C.2006) ( “[W]here a specific mens rea is an element of a criminal offense, a defendant must have had that mens rea himself to be guilty of that offense, whether he is charged as the principal actor or as an aider and abettor”); see also Collins v. United States, 73 A.3d 974, 981 n.3 (D.C.2013) (in order to convict a defendant as an aider and abettor “ the government was required to show that the accomplice had the same intent necessary to prove commission of the underlying substantive offense by the principal.”); Lancaster v. United States, 975 A.2d 168, 174 (D.C.2009) (“Because armed robbery is a specific-intent crime, the government must prove that the aider and abettor shared the same mens rea required of the principals.”).
FN21. Wilson–Bey, 903 A.2d at 836–39; accord, Coleman v. United States, 948 A.2d 534, 553 (D.C.2008) (holding that a conviction for second-degree murder as an aider and abettor “cannot stand on the basis that the defendant was merely negligent”). “A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct.” Model Penal Code § 2.02. Of course, if the circumstances support a supposition that a person had reason to know a fact, those circumstances might also support an inference that the person had actual knowledge of that fact.. FN21. Wilson–Bey, 903 A.2d at 836–39; accord, Coleman v. United States, 948 A.2d 534, 553 (D.C.2008) (holding that a conviction for second-degree murder as an aider and abettor “cannot stand on the basis that the defendant was merely negligent”). “A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct.” Model Penal Code § 2.02. Of course, if the circumstances support a supposition that a person had reason to know a fact, those circumstances might also support an inference that the person had actual knowledge of that fact.
FN22. The Redbook's proposed instruction regarding aiding and abetting “while armed” offenses states that “[a]n aider and abettor is legally responsible for the principal). ting valent) test of “ omitted); ual possession. ossession when teh sed ould be modified to require only that a would-be ac's use of a weapon during an offense if the government proves beyond a reasonable doubt that the aider and abettor had actual knowledge that some type of weapon would be used to commit the offense.” Instruction 3.200 (emphasis added). While this instruction correctly requires that the aider and abettor have actual knowledge of a weapon, it should be modified to require only knowledge that the principal is armed (since use of a weapon to commit the offense is not a prerequisite for guilt under § 22–4502). Additional modification of the instruction may be necessary to properly reflect the requirements of constructive possession when the principal is not alleged to have had actual possession.. FN22. The Redbook's proposed instruction regarding aiding and abetting “while armed” offenses states that “[a]n aider and abettor is legally responsible for the principal). ting valent) test of “ omitted); ual possession. ossession when teh sed ould be modified to require only that a would-be ac's use of a weapon during an offense if the government proves beyond a reasonable doubt that the aider and abettor had actual knowledge that some type of weapon would be used to commit the offense.” Instruction 3.200 (emphasis added). While this instruction correctly requires that the aider and abettor have actual knowledge of a weapon, it should be modified to require only knowledge that the principal is armed (since use of a weapon to commit the offense is not a prerequisite for guilt under § 22–4502). Additional modification of the instruction may be necessary to properly reflect the requirements of constructive possession when the principal is not alleged to have had actual possession.
FN23. Fox v. United States, 11 A.3d 1282 (D.C.2011).. FN23. Fox v. United States, 11 A.3d 1282 (D.C.2011).
FN24. Id. at 1289 (citing, inter alia, Guishard v. United States, 669 A.2d 1306, 1314 (D.C.1995)).. FN24. Id. at 1289 (citing, inter alia, Guishard v. United States, 669 A.2d 1306, 1314 (D.C.1995)).
FN25. See Sutton v. United States, 988 A.2d 478, 490 (D.C.2010); Wheeler v. United States, 977 A.2d 973, 986 n. 34 (D.C.2009), as amended by order, 987 A.2d 431 (D.C.2010).. FN25. See Sutton v. United States, 988 A.2d 478, 490 (D.C.2010); Wheeler v. United States, 977 A.2d 973, 986 n. 34 (D.C.2009), as amended by order, 987 A.2d 431 (D.C.2010).
FN26. Our holding in this case was anticipated, though, in Wheeler; see id. at 987 n.36.. FN26. Our holding in this case was anticipated, though, in Wheeler; see id. at 987 n.36.
FN27. Fox, 11 A.3d at 1287.. FN27. Fox, 11 A.3d at 1287.
FN28. See id. at 1288–89.. FN28. See id. at 1288–89.
FN29. The instruction did not contain the “natural and probable consequences” language that Wilson–Bey had disapproved, and it properly informed the jury that to convict a defendant as an aider and abettor, it had to find that he “knowingly” associated himself with the commission of a crime, participated in the crime as something that he “wished to bring about,” and “intended by his actions to make it succeed. Id. The same instruction recently had been approved as adequate in another post-Wilson-Bey decision, Appleton v. United States, 983 A.2d 970, 978 (D.C.2009), and the Fox court found it “hard to imagine” how it could have confused the jury with respect to mens rea. Fox, 11 A.3d at 1289.. FN29. The instruction did not contain the “natural and probable consequences” language that Wilson–Bey had disapproved, and it properly informed the jury that to convict a defendant as an aider and abettor, it had to find that he “knowingly” associated himself with the commission of a crime, participated in the crime as something that he “wished to bring about,” and “intended by his actions to make it succeed. Id. The same instruction recently had been approved as adequate in another post-Wilson-Bey decision, Appleton v. United States, 983 A.2d 970, 978 (D.C.2009), and the Fox court found it “hard to imagine” how it could have confused the jury with respect to mens rea. Fox, 11 A.3d at 1289.
FN30. Id. at 1288.. FN30. Id. at 1288.
FN31. See Wheeler, 977 A.2d at 986 n. 34 (citing Thomas v. United States, 731 A.2d 415, 420 n.6 (D.C.1999)).. FN31. See Wheeler, 977 A.2d at 986 n. 34 (citing Thomas v. United States, 731 A.2d 415, 420 n.6 (D.C.1999)).
FN32. See Wilson–Bey, 903 A.2d at 843 (citing Chapman v. California, 386 U.S. 18, 24 (1967)).. FN32. See Wilson–Bey, 903 A.2d at 843 (citing Chapman v. California, 386 U.S. 18, 24 (1967)).
FN33. Morten v. United States, 856 A.2d 595, 601 (D.C.2004) (acknowledging that “the harmless ‘beyond a reasonable doubt’ standard and the test of ‘[no] reasonable possibility’ of an effect on the conviction” are equivalent) (citing United States v. Bagley, 473 U.S. 667, 679 n.9 (1985)).. FN33. Morten v. United States, 856 A.2d 595, 601 (D.C.2004) (acknowledging that “the harmless ‘beyond a reasonable doubt’ standard and the test of ‘[no] reasonable possibility’ of an effect on the conviction” are equivalent) (citing United States v. Bagley, 473 U.S. 667, 679 n.9 (1985)).
FN34. Because robbery is one of the felonies enumerated in the felony murder statute, D.C.Code § 22–2101 (2012 Repl.), and second-degree burglary is not, the government is required to prove an intent to kill in order to convict a defendant of felony murder with the underlying felony of second-degree burglary, but is not required to prove that intent for robbery. See Kitt v. United States, 904 A.2d 348, 355 (D.C.2006).. FN34. Because robbery is one of the felonies enumerated in the felony murder statute, D.C.Code § 22–2101 (2012 Repl.), and second-degree burglary is not, the government is required to prove an intent to kill in order to convict a defendant of felony murder with the underlying felony of second-degree burglary, but is not required to prove that intent for robbery. See Kitt v. United States, 904 A.2d 348, 355 (D.C.2006).
FN36. The jury's conviction of Shanika on the conspiracy count does not contradict this inference. The jury was instructed that “the object of the conspiracy was to commit four offenses: burglary, robbery, murder, and obstruction of justice,” but that to find a defendant guilty of the offense of conspiracy, it only had to find that an agreement existed to “commit at least one of th[os]e four crimes.” The verdict form does not indicate which of the four crimes the jury relied upon, nor does it specify what overt acts in furtherance of the conspiracy the jury found. Shanika's conspiracy conviction therefore does not show the jury found she conspired to kill Shahabuddin.. FN36. The jury's conviction of Shanika on the conspiracy count does not contradict this inference. The jury was instructed that “the object of the conspiracy was to commit four offenses: burglary, robbery, murder, and obstruction of justice,” but that to find a defendant guilty of the offense of conspiracy, it only had to find that an agreement existed to “commit at least one of th[os]e four crimes.” The verdict form does not indicate which of the four crimes the jury relied upon, nor does it specify what overt acts in furtherance of the conspiracy the jury found. Shanika's conspiracy conviction therefore does not show the jury found she conspired to kill Shahabuddin.
FN37. Because Shanika testified that she never saw a weapon, even after Leon and Genus returned to the car, there is no question as to whether, even if the jury believed her narrative of events, she became aware of the armed nature of the crime while asportation of the stolen goods was ongoing, and whether that awareness would satisfy the “while armed” mens rea requirement.. FN37. Because Shanika testified that she never saw a weapon, even after Leon and Genus returned to the car, there is no question as to whether, even if the jury believed her narrative of events, she became aware of the armed nature of the crime while asportation of the stolen goods was ongoing, and whether that awareness would satisfy the “while armed” mens rea requirement.
FN38. Gathy v. United States, 754 A.2d 912, 919 (D.C.2000) (allowing judgment of conviction for assault with a deadly weapon as a lesser-included offense of aggravated assault while armed where trial court failed to instruct on serious bodily injury but all other elements of assault with a deadly weapon were satisfied by the proof at trial and the jury's verdict); see, e.g., Willis v. United States, 692 A.2d 1380, 1383 (D.C.1997) (allowing judgment of assault with a deadly weapon when instructional error only affected greater offense of assault with intent to murder while armed); Zellers v. United States, 682 A.2d 1118, 1122 (D.C.1996) (directing that first-degree theft conviction be reduced to second-degree theft when evidence of value, needed to prove first-degree theft, was insufficient); Boone v. United States, 296 A.2d 449, 450 (D.C.1972) (reversing grand larceny conviction and directing that conviction of petit larceny be entered); see also Allison v. United States, 409 F.2d 445, 452 (D.C.1969) (directing judgment of conviction of offense of taking indecent liberties with minor child as lesser-included offense of assault with intent to commit carnal knowledge where material facts of greater offense were not sufficiently corroborated); Austin v. United States, 382 F.2d 129, 142–43 (D.C.1967) (directing judgment of conviction of second-degree murder where government's evidence was insufficient to warrant submission of an issue of premeditation and deliberation required for conviction of greater offense of first-degree murder); Rutledge v. United States, 517 U.S. 292, 305 and 305 n. 15 (1996) (citing Allison and Austin with approval).. FN38. Gathy v. United States, 754 A.2d 912, 919 (D.C.2000) (allowing judgment of conviction for assault with a deadly weapon as a lesser-included offense of aggravated assault while armed where trial court failed to instruct on serious bodily injury but all other elements of assault with a deadly weapon were satisfied by the proof at trial and the jury's verdict); see, e.g., Willis v. United States, 692 A.2d 1380, 1383 (D.C.1997) (allowing judgment of assault with a deadly weapon when instructional error only affected greater offense of assault with intent to murder while armed); Zellers v. United States, 682 A.2d 1118, 1122 (D.C.1996) (directing that first-degree theft conviction be reduced to second-degree theft when evidence of value, needed to prove first-degree theft, was insufficient); Boone v. United States, 296 A.2d 449, 450 (D.C.1972) (reversing grand larceny conviction and directing that conviction of petit larceny be entered); see also Allison v. United States, 409 F.2d 445, 452 (D.C.1969) (directing judgment of conviction of offense of taking indecent liberties with minor child as lesser-included offense of assault with intent to commit carnal knowledge where material facts of greater offense were not sufficiently corroborated); Austin v. United States, 382 F.2d 129, 142–43 (D.C.1967) (directing judgment of conviction of second-degree murder where government's evidence was insufficient to warrant submission of an issue of premeditation and deliberation required for conviction of greater offense of first-degree murder); Rutledge v. United States, 517 U.S. 292, 305 and 305 n. 15 (1996) (citing Allison and Austin with approval).
FN39. D.C.Code § 17–306 (2012 Repl.)); see Austin, 382 F.2d at 140–41.. FN39. D.C.Code § 17–306 (2012 Repl.)); see Austin, 382 F.2d at 140–41.
FN40. In any event, as we often have stated, “no matter whose ox is gored, this court has frequently requested post-argument briefing of issues not adequately raised by counsel, to the end that, after both parties have been fully heard, the court is in the best position to render a sound decision.” Randolph v. United States, 882 A.2d 210, 226 (D.C.2005). We did exactly that here.. FN40. In any event, as we often have stated, “no matter whose ox is gored, this court has frequently requested post-argument briefing of issues not adequately raised by counsel, to the end that, after both parties have been fully heard, the court is in the best position to render a sound decision.” Randolph v. United States, 882 A.2d 210, 226 (D.C.2005). We did exactly that here.
FN41. Shanika asserts that Lee v. United States, 959 A.2d 1141 (D.C.2008) and Bostick v. United States, 605 A.2d 916 (D.C.1992) preclude the entry of judgment on a lesser-included offense on which the jury was not instructed, but she misreads both decisions. In Lee and Bostick, we reversed second-degree murder convictions because the trial court erroneously refused to instruct the jury on provocation as a mitigating circumstance. In each case, this court considered whether to afford the government the option to accept entry of a verdict on the lesser-included charge of voluntary manslaughter as an alternative to a retrial even though the trial court had not instructed the jury on the lesser charge. We declined to adopt that course, not because there had been no instruction on voluntary manslaughter, but in the exercise of our discretion because the government did not request it (nor did the appellant) and a simple remand for a new trial rendered it unnecessary to reach other claims of error. See Lee, 959 A.2d at 1145 & n.6, and Bostick, 605 A.2d at 920 & n.15.. FN41. Shanika asserts that Lee v. United States, 959 A.2d 1141 (D.C.2008) and Bostick v. United States, 605 A.2d 916 (D.C.1992) preclude the entry of judgment on a lesser-included offense on which the jury was not instructed, but she misreads both decisions. In Lee and Bostick, we reversed second-degree murder convictions because the trial court erroneously refused to instruct the jury on provocation as a mitigating circumstance. In each case, this court considered whether to afford the government the option to accept entry of a verdict on the lesser-included charge of voluntary manslaughter as an alternative to a retrial even though the trial court had not instructed the jury on the lesser charge. We declined to adopt that course, not because there had been no instruction on voluntary manslaughter, but in the exercise of our discretion because the government did not request it (nor did the appellant) and a simple remand for a new trial rendered it unnecessary to reach other claims of error. See Lee, 959 A.2d at 1145 & n.6, and Bostick, 605 A.2d at 920 & n.15.
FN42. See Brown v. Ohio, 432 U.S. 161, 166 (1977) (using the “Blockburger test,” which asks “whether each provision requires proof of an additional fact which the other does not” to determine whether an act constitutes one crime or two, in order to determine that joyriding is a lesser included offense of auto theft) (quoting Blockburger v. United States, 284 U.S. 299, 304, (1932)); Gathy, 754 A.2d at 919 (“A crime can only be a lesser-included offense of another if its required proof contains some, but not all, of the elements of the greater offense.”) (internal quotation marks omitted).. FN42. See Brown v. Ohio, 432 U.S. 161, 166 (1977) (using the “Blockburger test,” which asks “whether each provision requires proof of an additional fact which the other does not” to determine whether an act constitutes one crime or two, in order to determine that joyriding is a lesser included offense of auto theft) (quoting Blockburger v. United States, 284 U.S. 299, 304, (1932)); Gathy, 754 A.2d at 919 (“A crime can only be a lesser-included offense of another if its required proof contains some, but not all, of the elements of the greater offense.”) (internal quotation marks omitted).
FN43. Allison, 409 F.2d at 451 (stating that the authority to modify a criminal judgment by reducing the conviction to that of a lesser-included offense may be exercised where the greater offense cannot stand, provided that the evidence “sufficiently sustains all the elements of another offense, ․, the latter is a lesser included offense of the former, and ․ no undue prejudice will result to the accused”).. FN43. Allison, 409 F.2d at 451 (stating that the authority to modify a criminal judgment by reducing the conviction to that of a lesser-included offense may be exercised where the greater offense cannot stand, provided that the evidence “sufficiently sustains all the elements of another offense, ․, the latter is a lesser included offense of the former, and ․ no undue prejudice will result to the accused”).
FN44. There is no dispute that unarmed robbery is a lesser-included offense of armed robbery and that unarmed burglary in the second degree is a lesser-included offense of armed burglary in the second degree. See Fortune v. United States, 59 A.3d 949, 958 (D.C.2013) (noting that first-degree burglary is lesser-included offense of first-degree burglary while armed); Foreman v. United States, 988 A.2d 505, 506 (D.C.2010) (noting that jury was instructed on unarmed robbery as a lesser-included offense of armed robbery).. FN44. There is no dispute that unarmed robbery is a lesser-included offense of armed robbery and that unarmed burglary in the second degree is a lesser-included offense of armed burglary in the second degree. See Fortune v. United States, 59 A.3d 949, 958 (D.C.2013) (noting that first-degree burglary is lesser-included offense of first-degree burglary while armed); Foreman v. United States, 988 A.2d 505, 506 (D.C.2010) (noting that jury was instructed on unarmed robbery as a lesser-included offense of armed robbery).
FN45. Allison, 409 F.2d at 451.. FN45. Allison, 409 F.2d at 451.
FN46. Longus v. United States, 52 A.3d 836, 854 (D.C.2012).. FN46. Longus v. United States, 52 A.3d 836, 854 (D.C.2012).
FN47. Roy v. United States, 652 A.2d 1098, 1105 (D.C.1995).. FN47. Roy v. United States, 652 A.2d 1098, 1105 (D.C.1995).
FN48. United States v. Jones, 517 F.2d 176, 181 (D.C.Cir.1975) (“If there is a more natural and probable consequence of armed robbery than that the arms will be used and someone injured, we do not know what it is.”) (cited with approval by Allen v. United States, 383 A.2d 363, 368 (D.C.1978)).. FN48. United States v. Jones, 517 F.2d 176, 181 (D.C.Cir.1975) (“If there is a more natural and probable consequence of armed robbery than that the arms will be used and someone injured, we do not know what it is.”) (cited with approval by Allen v. United States, 383 A.2d 363, 368 (D.C.1978)).
FN51. See note 21, supra.. FN51. See note 21, supra.
FN52. See Coleman, 948 A.2d at 553 (“Although conviction for second-degree murder does not necessarily require proof of an ‘intent to kill,’ and may be based on proof of a ‘conscious disregard of an extreme risk of death or serious bodily injury,’ a conviction for second-degree murder cannot stand on the basis that the defendant was merely negligent.”) (internal citation omitted).. FN52. See Coleman, 948 A.2d at 553 (“Although conviction for second-degree murder does not necessarily require proof of an ‘intent to kill,’ and may be based on proof of a ‘conscious disregard of an extreme risk of death or serious bodily injury,’ a conviction for second-degree murder cannot stand on the basis that the defendant was merely negligent.”) (internal citation omitted).
FN53. Coleman, 948 A.2d at 544 (quoting Hammond v. United States, 880 A.2d 1066, 1089 (D.C.2005)).. FN53. Coleman, 948 A.2d at 544 (quoting Hammond v. United States, 880 A.2d 1066, 1089 (D.C.2005)).
FN54. Super. Ct.Crim. R. 14.. FN54. Super. Ct.Crim. R. 14.
FN55. Hargraves v. United States, 62 A.3d 107, 115–16 (D.C.2013) (alterations omitted) (quoting Zafiro v. United States, 506 U.S. 534, 539 (1993)).. FN55. Hargraves v. United States, 62 A.3d 107, 115–16 (D.C.2013) (alterations omitted) (quoting Zafiro v. United States, 506 U.S. 534, 539 (1993)).
FN56. Id. at 115 (internal quotation marks, ellipses, and footnotes omitted); see also Ingram v. United States, 592 A.2d 992, 996 (D.C.1991) (“Unfair prejudice does not arise merely because defendants are mutually hostile and attempt to blame each other.”).. FN56. Id. at 115 (internal quotation marks, ellipses, and footnotes omitted); see also Ingram v. United States, 592 A.2d 992, 996 (D.C.1991) (“Unfair prejudice does not arise merely because defendants are mutually hostile and attempt to blame each other.”).
FN57. See, e.g., Taylor v. United States, 601 A.2d 1060, 1063 (D.C.1991) (holding that conflict between the defense asserted by defendant, that he was not present at scene of robbery, and defense asserted by codefendant, that he was at scene innocently while defendant robbed victim, did not require severance); Lemon v. United States, 564 A.2d 1368, 1371 (D.C.1989) (trial court did not abuse its discretion in denying severance when one defendant testified that she participated in robbery under duress and identified co-defendant as perpetrator and co-defendant testified that he was not on the scene, when co-defendant was able to impeach credibility of defendant on cross-examination); Ready v. United States, 445 A.2d 982, 987 (D.C.1982) (no abuse of discretion in denying severance when one defendant indicated that he “would testify that he shot into the air while appellant shot the victim[, while] Appellant, in sharp contrast, would present evidence that he had not been at the scene of the crime.”); Sweet v. United States, 438 A.2d 447, 450 (D.C.1981) (trial court did not abuse its discretion in denying severance when defendant testified that he participated in criminal offenses due to coercion by co-defendant and co-defendant did not testify, though he presented alibi witnesses who testified that he was out of state at the time of the crime).. FN57. See, e.g., Taylor v. United States, 601 A.2d 1060, 1063 (D.C.1991) (holding that conflict between the defense asserted by defendant, that he was not present at scene of robbery, and defense asserted by codefendant, that he was at scene innocently while defendant robbed victim, did not require severance); Lemon v. United States, 564 A.2d 1368, 1371 (D.C.1989) (trial court did not abuse its discretion in denying severance when one defendant testified that she participated in robbery under duress and identified co-defendant as perpetrator and co-defendant testified that he was not on the scene, when co-defendant was able to impeach credibility of defendant on cross-examination); Ready v. United States, 445 A.2d 982, 987 (D.C.1982) (no abuse of discretion in denying severance when one defendant indicated that he “would testify that he shot into the air while appellant shot the victim[, while] Appellant, in sharp contrast, would present evidence that he had not been at the scene of the crime.”); Sweet v. United States, 438 A.2d 447, 450 (D.C.1981) (trial court did not abuse its discretion in denying severance when defendant testified that he participated in criminal offenses due to coercion by co-defendant and co-defendant did not testify, though he presented alibi witnesses who testified that he was out of state at the time of the crime).
FN58. Hargraves, 62 A.3d at 116. As the Supreme Court has explained,[A] fair trial does not include the right to exclude relevant and competent evidence. A defendant normally would not be entitled to exclude the testimony of a former codefendant if the [trial] court did sever their trials, and we see no reason why relevant and competent testimony would be prejudicial merely because the witness is also a codefendant.Zafiro, 506 U.S. at 540.. FN58. Hargraves, 62 A.3d at 116. As the Supreme Court has explained,[A] fair trial does not include the right to exclude relevant and competent evidence. A defendant normally would not be entitled to exclude the testimony of a former codefendant if the [trial] court did sever their trials, and we see no reason why relevant and competent testimony would be prejudicial merely because the witness is also a codefendant.Zafiro, 506 U.S. at 540.
FN59. Hargraves, 62 A.3d at 116 n.29 (quoting Ingram, 592 A.2d at 997).. FN59. Hargraves, 62 A.3d at 116 n.29 (quoting Ingram, 592 A.2d at 997).
FN60. Leon presents two other claims on appeal that we may dispose of summarily. First, he asserts that the government violated his Sixth Amendment rights by conditioning its offer of a plea deal on its acceptance by both defendants. We have, of course, condoned the government's discretion to offer such “wired” pleas. See e.g., Benitez v. United States, 60 A.3d 1230, 1237 (D.C.2013). Moreover, in this case, Leon was not prejudiced by the wiring, because his co-defendant was willing to accept the plea offer; it was Leon himself who rejected it. Thus, he was not prevented from taking the deal by the condition that Shanika had to accept it too.Second, Leon contends the jury's finding that the murder was especially heinous, atrocious, or cruel, must be vacated because the jury was not instructed that it had to find that statutory aggravating circumstance beyond a reasonable doubt. However, recognizing that error, the trial court did not rely on the finding to enhance Leon's punishment, but instead sentenced him on the first-degree murder count to a term of imprisonment of 45 years, which is below the statutory maximum for that offense without a finding of aggravating circumstances. See D.C.Code § § 22–2104; 24–403.01(b–2)(1)(B) (2012 Repl.) (authorizing maximum sentence of 60 years' incarceration for murder in the first degree absent a finding of aggravating circumstances). Thus, Leon was not prejudiced by the error. On remand, the court should simply vacate the jury's aggravating circumstance finding so that it cannot have any adverse collateral consequences.. FN60. Leon presents two other claims on appeal that we may dispose of summarily. First, he asserts that the government violated his Sixth Amendment rights by conditioning its offer of a plea deal on its acceptance by both defendants. We have, of course, condoned the government's discretion to offer such “wired” pleas. See e.g., Benitez v. United States, 60 A.3d 1230, 1237 (D.C.2013). Moreover, in this case, Leon was not prejudiced by the wiring, because his co-defendant was willing to accept the plea offer; it was Leon himself who rejected it. Thus, he was not prevented from taking the deal by the condition that Shanika had to accept it too.Second, Leon contends the jury's finding that the murder was especially heinous, atrocious, or cruel, must be vacated because the jury was not instructed that it had to find that statutory aggravating circumstance beyond a reasonable doubt. However, recognizing that error, the trial court did not rely on the finding to enhance Leon's punishment, but instead sentenced him on the first-degree murder count to a term of imprisonment of 45 years, which is below the statutory maximum for that offense without a finding of aggravating circumstances. See D.C.Code § § 22–2104; 24–403.01(b–2)(1)(B) (2012 Repl.) (authorizing maximum sentence of 60 years' incarceration for murder in the first degree absent a finding of aggravating circumstances). Thus, Leon was not prejudiced by the error. On remand, the court should simply vacate the jury's aggravating circumstance finding so that it cannot have any adverse collateral consequences.
FN61. Leon's first-degree premeditated murder and felony murder convictions merge, and while the two felony murder convictions likely will be vacated in favor of keeping the premeditated murder conviction, if a felony murder conviction survives, it merges with the underlying felony. In addition, as stated in note 60, supra, the jury's finding of a statutory aggravating circumstance should be vacated. All this may be addressed on remand.. FN61. Leon's first-degree premeditated murder and felony murder convictions merge, and while the two felony murder convictions likely will be vacated in favor of keeping the premeditated murder conviction, if a felony murder conviction survives, it merges with the underlying felony. In addition, as stated in note 60, supra, the jury's finding of a statutory aggravating circumstance should be vacated. All this may be addressed on remand.

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When the General Counsel for petitioner pharmaceutical manufacturing corporation (hereafter petitioner) was informed that one of its foreign subsidiaries had made questionable payments to foreign government officials in order to secure government business, an internal investigation of such payments was initiated. As part of this investigation, petitioner's attorneys sent a questionnaire to all foreign managers seeking detailed information concerning such payments, and the responses were returned to the General Counsel. The General Counsel and outside counsel also interviewed the recipients of the questionnaire and other company officers and employees. Subsequently, based on a report voluntarily submitted by petitioner disclosing the questionable payments, the Internal Revenue Service (IRS) began an investigation to determine the tax consequences of such payments and issued a summons pursuant to 26 U.S.C. § 7602 demanding production of, inter alia, the questionnaires and the memoranda and notes of the interviews. Petitioner refused to produce the documents on the grounds that they were protected from disclosure by the attorney-client privilege and constituted the work product of attorneys prepared in anticipation of litigation. The United States then filed a petition in Federal District Court seeking enforcement of the summons. That court adopted the Magistrate's recommendation that the summons should be enforced, the Magistrate having concluded, inter alia, that the attorney-client privilege had been waived and that the Government had made a sufficient showing of necessity to overcome the protection of the work-product doctrine. The Court of Appeals rejected the Magistrate's finding of a waiver of the attorney-client privilege, but held that under the so-called "control group test" the privilege did not apply "[t]o the extent that the communications were made by officers and agents not responsible for directing [petitioner's] actions in response to legal advice . . . for the simple reason that the communications were not the 'client's.' " The court also held that the work-product doctrine did not apply to IRS summonses.
1. The communications by petitioner's employees to counsel are covered by the attorney-client privilege insofar as the responses to the questionnaires and any notes reflecting responses to interview questions are concerned. Pp. 389-397.
(a) The control group test overlooks the fact that such privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice. While in the case of the individual client the provider of information and the person who acts on the lawyer's advice are one and the same, in the corporate context it will frequently be employees beyond the control group (as defined by the Court of Appeals) who will possess the information needed by the corporation's lawyers. Middle-level—and indeed lower-level employees can, by actions within the scope of their employment, embroil the corporation in serious legal difficulties, and it is only natural that these employees would have the relevant information needed by corporate counsel if he is adequately to advise the client with respect to such actual or potential difficulties. Pp. 390-392.
(c) The narrow scope given the attorney-client privilege by the Court of Appeals not only makes it difficult for corporate attorneys to formulate sound advice when their client is faced with a specific legal problem but also threatens to limit the valuable efforts of corporate counsel to ensure their client's compliance with the law. P. 392-393.
(d) Here, the communications at issue were made by petitioner's employees to counsel for petitioner acting as such, at the direction of corporate superiors in order to secure legal advice from counsel. Information not available from upper-echelon management was needed to supply a basis for legal advice concerning compliance with securities and tax laws, foreign laws, currency regulations, duties to shareholders, and potential litigation in each of these areas. The communications concerned matters within the scope of the employees' corporate duties, and the employees themselves were sufficiently aware that they were being questioned in order that the corporation could obtain legal advice. Pp. 394-395.
2. The work-product doctrine applies to IRS summonses. Pp. 397-402.
(a) The obligation imposed by a tax summons remains subject to the traditional privileges and limitations, and nothing in the language or legislative history of the IRS summons provisions suggests an intent on the part of Congress to preclude application of the work-product doctrine. P. 398.
(b) The Magistrate applied the wrong standard when he concluded that the Government had made a sufficient showing of necessity to overcome the protections of the work-product doctrine. The notes and memoranda sought by the Government constitute work product based on oral statements. If they reveal communications, they are protected by the attorney-client privilege. To the extent they do not reveal communications they reveal attorneys' mental processes in evaluating the communications. As Federal Rule of Civil Procedure 26, which accords special protection from disclosure to work product revealing an attorney's mental processes, and Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451, make clear, such work product cannot be disclosed simply on a showing of substantial need or inability to obtain the equivalent without undue hardship. P. 401.
600 F.2d 1223, 6 Cir., reversed and remanded.
Daniel M. Gribbon, Washington, D. C., for petitioners.
Lawrence G. Wallace, Washington, D. C., for respondents.
We granted certiorari in this case to address important questions concerning the scope of the attorney-client privilege in the corporate context and the applicability of the work-product doctrine in proceedings to enforce tax summonses. 445 U.S. 925, 100 S.Ct. 1310, 63 L.Ed.2d 758. With respect to the privilege question the parties and various amici have described our task as one of choosing between two "tests" which have gained adherents in the courts of appeals. We are acutely aware, however, that we sit to decide concrete cases and not abstract propositions of law. We decline to lay down a broad rule or series of rules to govern all conceivable future questions in this area, even were we able to do so. We can and do, however, conclude that the attorney-client privilege protects the communications involved in this case from compelled disclosure and that the work-product doctrine does apply in tax summons enforcement proceedings.
* Petitioner Upjohn Co. manufactures and sells pharmaceuticals here and abroad. In January 1976 independent accountants conducting an audit of one of Upjohn's foreign subsidiaries discovered that the subsidiary made payments to or for the benefit of foreign government officials in order to secure government business. The accountants, so informed petitioner, Mr. Gerard Thomas, Upjohn's Vice President, Secretary, and General Counsel. Thomas is a member of the Michigan and New York Bars, and has been Upjohn's General Counsel for 20 years. He consulted with outside counsel and R. T. Parfet, Jr., Upjohn's Chairman of the Board. It was decided that the company would conduct an internal investigation of what were termed "questionable payments." As part of this investigation the attorneys prepared a letter containing a questionnaire which was sent to "All Foreign General and Area Managers" over the Chairman's signature. The letter began by noting recent disclosures that several American companies made "possibly illegal" payments to foreign government officials and emphasized that the management needed full information concerning any such payments made by Upjohn. The letter indicated that the Chairman had asked Thomas, identified as "the company's General Counsel," "to conduct an investigation for the purpose of determining the nature and magnitude of any payments made by the Upjohn Company or any of its subsidiaries to any employee or official of a foreign government." The questionnaire sought detailed information concerning such payments. Managers were instructed to treat the investigation as "highly confidential" and not to discuss it with anyone other than Upjohn employees who might be helpful in providing the requested information. Responses were to be sent directly to Thomas. Thomas and outside counsel also interviewed the recipients of the questionnaire and some 33 other Upjohn officers or employees as part of the investigation.
"All files relative to the investigation conducted under the supervision of Gerard Thomas to identify payments to employees of foreign governments and any political contributions made by the Upjohn Company or any of its affiliates since January 1, 1971 and to determine whether any funds of the Upjohn Company had been improperly accounted for on the corporate books during the same period.
"The records should include but not be limited to written questionnaires sent to managers of the Upjohn Company's foreign affiliates, and memorandums or notes of the interviews conducted in the United States and abroad with officers and employees of the Upjohn Company and its subsidiaries." App. 17a-18a.
The company declined to produce the documents specified in the second paragraph on the grounds that they were protected from disclosure by the attorney-client privilege and constituted the work product of attorneys prepared in anticipation of litigation. On August 31, 1977, the United States filed a petition seeking enforcement of the summons under 26 U.S.C. §§ 7402(b) and 7604(a) in the United States District Court for the Western District of Michigan. That court adopted the recommendation of a Magistrate who concluded that the summons should be enforced. Petitioners appealed to the Court of Appeals for the Sixth Circuit which rejected the Magistrate's finding of a waiver of the attorney-client privilege, 600 F.2d 1223, 1227, n. 12, but agreed that the privilege did not apply "[t]o the extent that the communications were made by officers and agents not responsible for directing Upjohn's actions in response to legal advice . . . for the simple reason that the communications were not the 'client's.' " Id., at 1225. The court reasoned that accepting petitioners' claim for a broader application of the privilege would encourage upper-echelon management to ignore unpleasant facts and create too broad a "zone of silence." Noting that Upjohn's counsel had interviewed officials such as the Chairman and President, the Court of Appeals remanded to the District Court so that a determination of who was within the "control group" could be made. In a concluding footnote the court stated that the work-product doctrine "is not applicable to administrative summonses issued under 26 U.S.C. § 7602." Id., at 1228, n. 13.
Federal Rule of Evidence 501 provides that "the privilege of a witness . . . shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in light of reason and experience." The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law. 8 J. Wigmore, Evidence § 2290 (McNaughton rev. 1961). Its purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer's being fully informed by the client. As we stated last Term in Trammel v. United States, 445 U.S. 40, 51, 100 S.Ct. 906, 913, 63 L.Ed.2d 186 (1980): "The lawyer-client privilege rests on the need for the advocate and counselor to know all that relates to the client's reasons for seeking representation if the professional mission is to be carried out." And in Fisher v. United States, 425 U.S. 391, 403, 96 S.Ct. 1569, 1577, 48 L.Ed.2d 39 (1976), we recognized the purpose of the privilege to be "to encourage clients to make full disclosure to their attorneys." This rationale for the privilege has long been recognized by the Court, see Hunt v. Blackburn, 128 U.S. 464, 470, 9 S.Ct. 125, 127, 32 L.Ed. 488 (1888) (privilege "is founded upon the necessity, in the interest and administration of justice, of the aid of persons having knowledge of the law and skilled in its practice, which assistance can only be safely and readily availed of when free from the consequences or the apprehension of disclosure"). Admittedly complications in the application of the privilege arise when the client is a corporation, which in theory is an artificial creature of the law, and not an individual; but this Court has assumed that the privilege applies when the client is a corporation. United States v. Louisville & Nashville R. Co., 236 U.S. 318, 336, 35 S.Ct. 363, 369, 59 L.Ed. 598 (1915), and the Government does not contest the general proposition.
"A lawyer should be fully informed of all the facts of the matter he is handling in order for his client to obtain the full advantage of our legal system. It is for the lawyer in the exercise of his independent professional judgment to separate the relevant and important from the irrelevant and unimportant. The observance of the ethical obligation of a lawyer to hold inviolate the confidences and secrets of his client not only facilitates the full development of facts essential to proper representation of the client but also encourages laymen to seek early legal assistance."
See also Hickman v. Taylor, 329 U.S. 495, 511, 67 S.Ct. 385, 393-394, 91 L.Ed. 451 (1947).
"In a corporation, it may be necessary to glean information relevant to a legal problem from middle management or non-management personnel as well as from top executives. The attorney dealing with a complex legal problem 'is thus faced with a "Hobson's choice". If he interviews employees not having "the very highest authority", their communications to him will not be privileged. If, on the other hand, he interviews only those employees with the "very highest authority", he may find it extremely difficult, if not impossible, to determine what happened.' " Id., at 608-609 (quoting Weinschel Corporate Employee Interviews and the Attorney-Client Privilege, 12 B.C.Ind. & Com. L.Rev. 873, 876 (1971)).
The control group test adopted by the court below thus frustrates the very purpose of the privilege by discouraging the communication of relevant information by employees of the client to attorneys seeking to render legal advice to the client corporation. The attorney's advice will also frequently be more significant to noncontrol group members than to those who officially sanction the advice, and the control group test makes it more difficult to convey full and frank legal advice to the employees who will put into effect the client corporation's policy. See, e. g., Duplan Corp. v. Deering Milliken, Inc., 397 F.Supp. 1146, 1164 (DSC 1974) ("After the lawyer forms his or her opinion, it is of no immediate benefit to the Chairman of the Board or the President. It must be given to the corporate personnel who will apply it").
The narrow scope given the attorney-client privilege by the court below not only makes it difficult for corporate attorneys to formulate sound advice when their client is faced with a specific legal problem but also threatens to limit the valuable efforts of corporate counsel to ensure their client's compliance with the law. In light of the vast and complicated array of regulatory legislation confronting the modern corporation, corporations, unlike most individuals, "constantly go to lawyers to find out how to obey the law," Burnham, The Attorney-Client Privilege in the Corporate Arena, 24 Bus.Law. 901, 913 (1969), particularly since compliance with the law in this area is hardly an instinctive matter, see, e. g., United States v. United States Gypsum Co., 438 U.S. 422, 440-441, 98 S.Ct. 2864, 2875-2876, 57 L.Ed.2d 854 (1978) ("the behavior proscribed by the [Sherman] Act is often difficult to distinguish from the gray zone of socially acceptable and economically justifiable business conduct").2 The test adopted by the court below is difficult to apply in practice, though no abstractly formulated and unvarying "test" will necessarily enable courts to decide questions such as this with mathematical precision. But if the purpose of the attorney-client privilege is to be served, the attorney and client must be able to predict with some degree of certainty whether particular discussions will be protected. An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all. The very terms of the test adopted by the court below suggest the unpredictability of its application. The test restricts the availability of the privilege to those officers who play a "substantial role" in deciding and directing a corporation's legal response. Disparate decisions in cases applying this test illustrate its unpredictability. Compare, e. g., Hogan v. Zletz, 43 F.R.D. 308, 315-316 (ND Okl.1967), aff'd in part sub nom. Natta v. Hogan, 392 F.2d 686 (CA10 1968) (control group includes managers and assistant managers of patent division and research and development department), with Congoleum Industries, Inc. v. GAF Corp., 49 F.R.D. 82, 83-85 (ED Pa.1969), aff'd, 478 F.2d 1398 (CA3 1973) (control group includes only division and corporate vice presidents, and not two directors of research and vice president for production and research).
The communications at issue were made by Upjohn employees3 to counsel for Upjohn acting as such, at the direction of corporate superiors in order to secure legal advice from counsel. As the Magistrate found, "Mr. Thomas consulted with the Chairman of the Board and outside counsel and thereafter conducted a factual investigation to determine the nature and extent of the questionable payments and to be in a position to give legal advice to the company with respect to the payments." (Emphasis supplied.) 78-1 USTC ¶ 9277, pp. 83,598, 83,599. Information, not available from upper-echelon management, was needed to supply a basis for legal advice concerning compliance with securities and tax laws, foreign laws, currency regulations, duties to shareholders, and potential litigation in each of these areas.4 The communications concerned matters within the scope of the employees' corporate duties, and the employees themselves were sufficiently aware that they were being questioned in order that the corporation could obtain legal advice. The questionnaire identified Thomas as "the company's General Counsel" and referred in its opening sentence to the possible illegality of payments such as the ones on which information was sought. App. 40a. A statement of policy accompanying the questionnaire clearly indicated the legal implications of the investigation. The policy statement was issued "in order that there be no uncertainty in the future as to the policy with respect to the practices which are the subject of this investigation." It began "Upjohn will comply with all laws and regulations," and stated that commissions or payments "will not be used as a subterfuge for bribes or illegal payments" and that all payments must be "proper and legal." Any future agreements with foreign distributors or agents were to be approved "by a company attorney" and any questions concerning the policy were to be referred "to the company's General Counsel." Id., at 165a-166a. This statement was issued to Upjohn employees worldwide, so that even those interviewees not receiving a questionnaire were aware of the legal implications of the interviews. Pursuant to explicit instructions from the Chairman of the Board, the communications were considered "highly confidential" when made, id., at 39a, 43a, and have been kept confidential by the company.5 Consistent with the underlying purposes of the attorney-client privilege, these communications must be protected against compelled disclosure.
"[T]he protection of the privilege extends only to communications and not to facts. A fact is one thing and a communication concerning that fact is an entirely different thing. The client cannot be compelled to answer the question, 'What did you say or write to the attorney?' but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication to his attorney." Philadelphia v. Westinghouse Electric Corp., 205 F.Supp. 830, 831 ( q2.7).
See also Diversified Industries, 572 F.2d., at 611; State ex rel. Dudek v. Circuit Court, 34 Wis.2d 559, 580, 150 N.W.2d 387, 399 (1967) ("the courts have noted that a party cannot conceal a fact merely by revealing it to his lawyer"). Here the Government was free to question the employees who communicated with Thomas and outside counsel. Upjohn has provided the IRS with a list of such employees, and the IRS has already interviewed some 25 of them. While it would probably be more convenient for the Government to secure the results of petitioner's internal investigation by simply subpoenaing the questionnaires and notes taken by petitioner's attorneys, such considerations of convenience do not overcome the policies served by the attorney-client privilege. As Justice Jackson noted in his concurring opinion in Hickman v. Taylor, 329 U.S., at 516, 67 S.Ct., at 396: "Discovery was hardly intended to enable a learned profession to perform its functions . . . on wits borrowed from the adversary."
Needless to say, we decide only the case before us, and do not undertake to draft a set of rules which should govern challenges to investigatory subpoenas. Any such approach would violate the spirit of Federal Rule of Evidence 501. See S.Rep. No. 93-1277, p. 13 (1974) ("the recognition of a privilege based on a confidential relationship . . . should be determined on a case-by-case basis"); Trammel, 445 U.S., at 47, 100 S.Ct., at 910-911; United States v. Gillock, 445 U.S. 360, 367, 100 S.Ct. 1185, 1190, 63 L.Ed.2d 454 (1980). While such a "case-by-case" basis may to some slight extent undermine desirable certainty in the boundaries of the attorney-client privilege, it obeys the spirit of the Rules. At the same time we conclude that the narrow "control group test" sanctioned by the Court of Appeals, in this case cannot, consistent with "the principles of the common law as . . . interpreted . . . in the light of reason and experience," Fed. Rule Evid. 501, govern the development of the law in this area.
"much of what is now put down in writing would remain unwritten. An attorney's thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served." Id., at 511, 67 S.Ct., at 393-394.
"We do not mean to say that all written materials obtained or prepared by an adversary's counsel with an eye toward litigation are necessarily free from discovery in all cases. Where relevant and nonprivileged facts remain hidden in an attorney's file and where production of those facts is essential to the preparation of one's case, discovery may properly be had. . . . And production might be justified where the witnesses are no longer available or can be reached only with difficulty." 329 U.S., at 511, 67 S.Ct., at 394.
Rule 26 accords special protection to work product revealing the attorney's mental processes. The Rule permits disclosure of documents and tangible things constituting attorney work product upon a showing of substantial need and inability to obtain the equivalent without undue hardship. This was the standard applied by the Magistrate, 78-1 USTC ¶ 9277, p. 83,604. Rule 26 goes on, however, to state that "[i]n ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation." Although this language does not specifically refer to memoranda based on oral statements of witnesses, the Hickman court stressed the danger that compelled disclosure of such memoranda would reveal the attorney's mental processes. It is clear that this is the sort of material the draftsmen of the Rule had in mind as deserving special protection. See Notes of Advisory Committee on 1970 Amendment to Rules, 28 U.S.C.App., p. 442 ("The subdivision . . . goes on to protect against disclosure the mental impressions, conclusions, opinions, or legal theories . . . of an attorney or other representative of a party. The Hickman opinion drew special attention to the need for protecting an attorney against discovery of memoranda prepared from recollection of oral interviews. The courts have steadfastly safeguarded against disclosure of lawyers' mental impressions and legal theories . . .").
Based on the foregoing, some courts have concluded that no showing of necessity can overcome protection of work product which is based on oral statements from witnesses. See, e. g., In re Grand Jury Proceedings, 473 F.2d 840, 848 (CA8 1973) (personal recollections, notes, and memoranda pertaining to conversation with witnesses); In re Grand Jury Investigation, 412 F.Supp. 943, 949 (ED Pa.1976) (notes of conversation with witness "are so much a product of the lawyer's thinking and so little probative of the witness's actual words that they are absolutely protected from disclosure"). Those courts declining to adopt an absolute rule have nonetheless recognized that such material is entitled to special protection. See, e. g., In re Grand Jury Investigation, 599 F.2d 1224, 1231 (CA3 1979) ("special considerations . . . must shape any ruling on the discoverability of interview memoranda . . .; such documents will be discoverable only in a 'rare situation' "); Cf. In re Grand Jury Subpoena, 599 F.2d 504, 511-512 (CA2 1979).
We do not decide the issue at this time. It is clear that the Magistrate applied the wrong standard when he concluded that the Government had made a sufficient showing of necessity to overcome the protections of the work-product doctrine. The Magistrate applied the "substantial need" and "without undue hardship" standard articulated in the first part of Rule 26(b)(3). The notes and memoranda sought by the Government here, however, are work product based on oral statements. If they reveal communications, they are, in this case, protected by the attorney-client privilege. To the extent they do not reveal communications, they reveal the attorneys' mental processes in evaluating the communications. As Rule 26 and Hickman make clear, such work product cannot be disclosed simply on a showing of substantial need and inability to obtain the equivalent without undue hardship.
While we are not prepared at this juncture to say that such material is always protected by the work-product rule, we think a far stronger showing of necessity and unavailability by other means than was made by the Government or applied by the Magistrate in this case would be necessary to compel disclosure. Since the Court of Appeals thought that the work-product protection was never applicable in an enforcement proceeding such as this, and since the Magistrate whose recommendations the District Court adopted applied too lenient a standard of protection, we think the best procedure with respect to this aspect of the case would be to reverse the judgment of the Court of Appeals for the Sixth Circuit and remand the case to it for such further proceedings in connection with the work-product claim as are consistent with this opinion.
Accordingly, the judgment of the Court of Appeals is reversed, and the case remanded for further proceedings.
I join in Parts I and III of the opinion of the Court and in the judgment. As to Part II, I agree fully with the Court's rejection of the so-called "control group" test, its reasons for doing so, and its ultimate holding that the communications at issue are privileged. As the Court states, however, "if the purpose of the attorney-client privilege is to be served, the attorney and client must be able to predict with some degree of certainty whether particular discussions will be protected." Ante, at 393. For this very reason, I believe that we should articulate a standard that will govern similar cases and afford guidance to corporations, counsel advising them, and federal courts.
The Court properly relies on a variety of factors in concluding that the communications now before us are privileged. See ante, at 394-395. Because of the great importance of the issue, in my view the Court should make clear now that, as a general rule, a communication is privileged at least when, as here, an employee or former employee speaks at the direction of the management with an attorney regarding conduct or proposed conduct within the scope of employment. The attorney must be one authorized by the management to inquire into the subject and must be seeking information to assist counsel in performing any of the following functions: (a) evaluating whether the employee's conduct has bound or would bind the corporation; (b) assessing the legal consequences, if any, of that conduct; or (c) formulating appropriate legal responses to actions that have been or may be taken by others with regard to that conduct. See, e. g., Diversified Industries, Inc. v. Meredith, 572 F.2d 596, 609 (CA8 1978) (en banc); Harper & Row Publishers, Inc. v. Decker, 423 F.2d 487, 491-492 (CA7 1970), aff'd by an equally divided Court, 400 U.S. 348, 91 S.Ct. 479, 27 L.Ed.2d 433 (1971); Duplan Corp v. Deering Milliken, Inc., 397 F.Supp. 1146, 1163-1165 (DSC 1974). Other communications between employees and corporate counsel may indeed be privileged—as the petitioners and several amici have suggested in their proposed formulations*—but the need for certainty does not compel us now to prescribe all the details of the privilege in this case.
Nevertheless, to say we should not reach all facets of the privilege does not mean that we should neglect our duty to provide guidance in a case that squarely presents the question in a traditional adversary context. Indeed, because Federal Rule of Evidence 501 provides that the law of privileges "shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience," this Court has a special duty to clarify aspects of the law of privileges properly before us. Simply asserting that this failure "may to some slight extent undermine desirable certainty," ante, at 396, neither minimizes the consequences of continuing uncertainty and confusion nor harmonizes the inherent dissonance of acknowledging that uncertainty while declining to clarify it within the frame of issues presented.
On July 28, 1976, the company filed an amendment to this report disclosing further payments.
The Government argues that the risk of civil or criminal liability suffices to ensure that corporations will seek legal advice in the absence of the protection of the privilege. This response ignores the fact that the depth and quality of any investigations, to ensure compliance with the law would suffer, even were they undertaken. The response also proves too much, since it applies to all communications covered by the privilege: an individual trying to comply with the law or faced with a legal problem also has strong incentive to disclose information to his lawyer, yet the common law has recognized the value of the privilege in further facilitating communications.
Seven of the eighty-six employees interviewed by counsel had terminated their employment with Upjohn at the time of the interview. App. 33a-38a. Petitioners argue that the privilege should nonetheless apply to communications by these former employees concerning activities during their period of employment. Neither the District Court nor the Court of Appeals had occasion to address this issue, and we decline to decide it without the benefit of treatment below.
See id., at 26a-27a, 103a, 123a-124a. See also In re Grand Jury Investigation, 599 F.2d 1224, 1229 (CA3 1979); In re Grand Jury Subpoena, 599 F.2d 504, 511 (CA2 1979).
See Magistrate's opinion, 78-1 USTC ¶ 9277, p. 83,599: "The responses to the questionnaires and the notes of the interviews have been treated as confidential material and have not been disclosed to anyone except Mr. Thomas and outside counsel."
The following discussion will also be relevant to counsel's notes and memoranda of interviews with the seven former employees should it be determined that the attorney-client privilege does not apply to them. See n. 3, supra.
"[A] party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation."
Thomas described his notes of the interviews as containing "what I considered to be the important questions, the substance of the responses to them, my beliefs as to the importance of these, my beliefs as to how they related to the inquiry, my thoughts as to how they related to other questions. In some instances they might even suggest other questions that I would have to ask or things that I needed to find elsewhere." 78-1 USTC ¶ 9277, p. 83,599.
See Brief for Petitioners 21-23, and n. 25; Brief for American Bar Association as Amicus Curiae 5-6, and n. 2; Brief for American College of Trial Lawyers and 33 Law Firms as Amici Curiae 9-10, and n. 5.