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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 13-CM-628

                        FRANCISCA C. MILLER, APPELLANT,

                                         v.

                            UNITED STATES, APPELLEE.

                         Appeal from the Superior Court
                          of the District of Columbia
                                (DVM-358-13)

                    (Hon. A. Franklin Burgess Jr., Trial Judge)

(Argued May 7, 2019                                          Decided June 6, 2019)

      Donna L. Biderman for appellant.

      Lauren R. Bates, Assistant United States Attorney, with whom Jessie K. Liu,
United States Attorney, and Elizabeth Trosman, John P. Mannarino, and Rikki D.
McCoy, Assistant United States Attorneys, were on the briefs, for appellee.

      Before BECKWITH and MCLEESE, Associate Judges, and NEBEKER, Senior
Judge.

      MCLEESE, Associate Judge: After a bench trial, appellant Francisca Miller

was found guilty of attempted possession of a prohibited weapon and attempted

threats to do bodily harm. Ms. Miller is not a United States citizen, and it is

uncontested that her convictions legally authorize her to be removed from the United
                                         2

States. Relying on our recent decision in Bado v. United States, 186 A.3d 1243

(D.C. 2018) (en banc), Ms. Miller argues among other things that she was denied

her constitutional right to a jury trial. We agree, and we therefore vacate Ms.

Miller’s convictions and remand for further proceedings.



                                         I.



      The United States’s evidence at trial was as follows. On the date of the

offense, Ms. Miller lived at 3552 Warter Street NW with Teresa Smith and Ms.

Smith’s boyfriend, Marquis Childs. Ms. Smith heard an argument between Ms.

Miller and Mr. Childs. Entering the kitchen where the argument was taking place,

Ms. Smith asked what was going on. Ms. Miller began to curse at Ms. Smith and

stated she was going to cut Ms. Smith’s eye out. Ms. Miller then ran to her room

and retrieved a large butcher knife with an approximately eight-inch blade and a

black handle. Ms. Miller returned, waved the knife around, and said “I’ll fuck you

up,” and “I’m going to get your ass, bitch.” Ms. Smith was scared and upset.



      Ms. Smith called the police. A Metropolitan Police Department (MPD)

officer responded to the house and spoke with Ms. Miller. Ms. Miller told the officer

that she and Ms. Smith had a verbal argument, but Ms. Miller denied wielding a
                                          3

knife. The officer performed a consensual search of Ms. Miller’s room and found a

knife with a black handle in plain view. Mr. Childs identified that knife as the knife

Ms. Miller had wielded earlier. An MPD detective interviewed Ms. Smith. Ms.

Smith told the detective that Ms. Miller had pulled a knife on her. Mr. Childs

corroborated Ms. Smith’s statement.



      The defense evidence was as follows. Ms. Miller testified that on the day of

the incident she was talking to Mr. Childs in the kitchen, that Mr. Childs threatened

her, and that she was afraid of him. She did not bring out a knife during the argument

or threaten anyone with a knife. She keeps cooking knives in her room because she

does not want them to go missing and because of roaches and mice.                John

Osanyingbemi, another resident of 3552 Warter Street, also testified. He testified

that he saw the argument in the kitchen and that no one was holding any weapons or

objects. Mr. Osanyingbemi told Ms. Miller, Mr. Childs, and Ms. Smith to stop

arguing, and the group dispersed.



                                         II.



      Ms. Miller contends that the evidence was insufficient to support her

convictions. We disagree.
                                            4



      When assessing the sufficiency of the evidence, we “view the evidence in the

light most favorable to the [verdict], giving full play to the right of the fact-finder to

determine credibility, weigh the evidence, and draw justifiable inferences of fact.”

Cherry v. District of Columbia, 164 A.3d 922, 929 (D.C. 2017) (internal quotation

marks omitted). The evidence is sufficient if, “after viewing it in the light most

favorable to the [verdict], any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Smith v. United States, 55 A.3d

884, 887 (D.C. 2012) (internal quotation marks omitted).



      Ms. Miller challenges the trial court’s decision to credit the testimony of Ms.

Smith and Mr. Childs over the testimony of the defense witnesses. Credibility,

however, “is determined by the trier of fact, . . . and this court must defer to its

credibility findings if they are supported by the evidence.” Bryant v. United States,

859 A.2d 1093, 1102 n.13 (D.C. 2004). We discern no basis to reject the credibility

determinations of the factfinder on this record.
                                          5

                                         III.



      Ms. Miller argues that attempted threats is not a legally cognizable offense.

This court, however, has held otherwise. Jones v. United States, 124 A.3d 127, 129-

31 (D.C. 2015) (reaffirming that “attempted threats is a valid offense in the

District”). Although Ms. Miller contends that our prior decisions are wrong, it is

“fundamental in our jurisprudence that no division of this court will overrule a prior

decision of this court.” Washington v. Guest Servs., Inc., 718 A.2d 1071, 1075 (D.C.

1998) (internal quotation marks omitted).



                                         IV.



      Finally, Ms. Miller argues that she had a constitutional right to a jury trial,

because she was tried for offenses that legally authorize her removal from the United

States. Ms. Miller concedes that she did not request a jury trial and that her claim is

therefore subject to review under the plain-error standard. “Under the test for plain

error, an appellant must show (1) error, (2) that is plain, and (3) that affected [the

appellant’s] substantial rights.” Fortune v. United States, 59 A.3d 949, 954 (D.C.

2013) (internal quotation marks omitted). “Even if all three of these conditions are

met, this court will not reverse unless (4) the error seriously affects the fairness,
                                           6

integrity, or public reputation of judicial proceedings.” Id. (internal quotation marks

omitted). Applying that standard, we vacate Ms. Miller’s convictions.



                                          A.



      Ms. Miller’s immigration status was not raised before the trial court, and the

trial record does not shed light on that status. On appeal, both parties have proffered

information concerning Ms. Miller’s status.        The United States has raised no

objection to our consideration of undisputed information about Ms. Miller’s status.

For current purposes, it suffices to say that there is no dispute that (1) Ms. Miller

was born in Nigeria; (2) Ms. Miller came to the United States in 1998; (3) Ms. Miller

is not a United States citizen; (4) at the time of trial in this case, Ms. Miller had no

established legal right to remain in the United States and no pending request seeking

to establish such a right; (5) because Ms. Miller and Ms. Smith lived in the same

home, the offenses of conviction are crimes of domestic violence that would provide

a legal basis upon which Ms. Miller could be removed from the United States

pursuant to 8 U.S.C. § 1227(a)(2)(E) (2017); and (6) although Ms. Miller at one

point submitted an asylum request, she has since withdrawn that request in exchange

for an agreement that the United States would not oppose a grant of withholding of

removal. “Withholding of removal . . . confers only the right not to be deported to
                                          7

a particular country—not a right to remain in this one.” Abdulai v. Ashcroft, 239

F.3d 542, 545 (3d Cir. 2001).



                                          B.



      We turn first to whether the failure to provide Ms. Miller with a jury trial is

obvious error. Although Bado had not been decided at the time of the trial in this

case, we must take Bado into account in determining whether there is obvious error.

See, e.g., Haye v. United States, 67 A.3d 1025, 1030 (D.C. 2013) (“An error is plain

if it is clear or obvious at the time of appeal.”). We conclude that the failure to

provide Ms. Miller with a jury trial is obvious error in light of Bado.



      Bado is explicit as to the scope of its holding: “Our holding today is clear:

the Sixth Amendment entitles a defendant to a jury trial if [the defendant] is charged

with a deportable offense . . . .” 186 A.3d at 1260. The United States does not

dispute that Ms. Miller was charged with deportable offenses. Our holding in Bado

by its plain terms therefore entitles Ms. Miller to a jury trial. We are not persuaded

by the United States’s contrary arguments.
                                           8

      Although the trial record did not reveal that Ms. Miller is not a citizen, the

United States has not relied on that circumstance to argue that the error in this case

was not obvious for purposes of the plain-error standard. We therefore do not

address that issue.    The United States does argue, however, that Bado could

reasonably be read more narrowly, to afford a jury trial right to a noncitizen charged

with a deportable offense only if the noncitizen had a preexisting right to remain in

the United States. We disagree.



      First, Mr. Bado apparently did not have a preexisting right to remain in the

United States at the time of his criminal trial. Bado, 186 A.3d at 1247. Rather, his

petition for asylum was pending at the time of his criminal trial. Id. The United

States’s proposed reading of Bado thus is directly inconsistent with our holding that

Mr. Bado had a constitutional right to jury trial.



      Second, the United States’s proposed reading of Bado appears to rest on the

premise that a defendant has a constitutional right to a jury trial only if conviction

would in a practical sense make the defendant’s situation worse than it otherwise

would be. Bado, however, repeatedly states that the relevant inquiry is whether the

defendant “faces” or “is exposed” to the penalty at issue, or alternatively whether

the penalty “could be” imposed, if the defendant is convicted. E.g., 186 A.3d at
                                             9

1246, 1249-50, 1252, 1253, 1256, 1257, 1261. Bado’s language reflects the well-

settled principle that whether there is a Sixth Amendment right to a jury trial turns

on the “maximum authorized penalty.” Blanton v. City of N. Las Vegas, 489 U.S.

538, 541 (1989) (emphasis added and internal quotation marks omitted). The focus

is on the maximum authorized penalty because the existence of a Sixth Amendment

right to a jury trial as to a charged offense turns on whether the offense is serious or

petty, which in turn depends on whether the maximum penalty authorized for the

offense reflects a legislative judgment that the offense is serious. Id. at 541-42.

Thus, for example, any defendant charged with an offense punishable by up to a year

in jail has a right to a jury trial, because the legislative decision to authorize so severe

a punishment demonstrates categorically that the offense is serious rather than petty.

Id. at 542-43. Under this analysis, it is not relevant what sentence a particular

defendant actually receives, much less what sentence a particular defendant might

be thought likely to receive or what the practical impact of a sentence might be on a

particular defendant. Cf., e.g., Lewis v. United States, 518 U.S. 322, 328-29 (1996)

(with exception of criminal contempt, which presents unique concerns, existence of

Sixth Amendment right to jury trial does not turn on punishment actually imposed).

It follows logically that a defendant who is already serving multiple life sentences

without possibility of parole would have a Sixth Amendment right to a jury trial if

charged with an offense punishable by up to a year in jail, even though it could be
                                          10

said that the defendant no longer had a right to be free from incarceration and that a

further conviction would not have a significant practical impact on the defendant.

In our view, the same is true where a defendant is charged with a deportable offense

but may be subject to deportation on other grounds.



      It is true that a defendant is not entitled to a jury trial based on penalties that

are legally unavailable to be imposed on that defendant. E.g., Blanton, 489 U.S. at

545 n.12 (in determining whether defendants who were first-time offenders had

Sixth Amendment right to jury trial, court did not consider higher penalties

applicable to repeat offenders); Bado, 186 A.3d at 1256 (“[W]hat is relevant to the

Sixth Amendment analysis are the potential penalties to which the particular

defendant is exposed upon conviction.”). But that is quite different from tying the

Sixth Amendment right to a jury trial to a defendant-specific inquiry into the

practical consequences of a conviction. As we said in Bado, in addressing a

somewhat different argument, we see no basis to “engraft additional requirements to

the factors set out by the [Supreme] Court that are not relevant to Blanton’s focus on

the potential penalties that are faced by the accused individual.” 186 A.3d at 1257.
                                           11

                                           C.



       Under the third part of the plain-error test, Ms. Miller must show that the

erroneous denial of her Sixth Amendment right to a jury trial affected her substantial

rights. Fortune, 59 A.3d at 954. The United States acknowledges that this court has

previously held that, because denial of the Sixth Amendment right to a jury trial is a

structural error, when that right is denied “the defendant’s substantial rights will be

deemed to have been affected, without need for further analysis in the context of the

particular trial.” Id. at 956 (internal quotation marks omitted). In a footnote,

however, the United States suggests in passing that this holding has been abrogated

by the Supreme Court’s decision in Weaver v. Massachusetts, 137 S. Ct. 1899 (2017)

(prejudice is not presumed when defendant claims that defense counsel was

constitutionally ineffective in failing to object to denial of right to public trial). We

do not consider the United States’s footnote to have sufficiently raised the argument

that our prior holding has been invalidated. See Graham v. United States, 12 A.3d

1159, 1165 n.9 (D.C. 2011) (“It is not enough merely to mention a possible argument

in the most skeletal way, leaving the court to do counsel’s work, create the ossature

for the argument, and put flesh on its bones . . . .”) (internal quotation marks

omitted). We thus conclude that Ms. Miller has satisfied the third part of the plain-

error test.
                                         12



                                         D.



      Under the fourth part of the plain-error test, Ms. Miller must show that the

error “seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Fortune, 59 A.3d at 954 (internal quotation marks omitted). We

conclude that Ms. Miller has made the required showing.



      The Supreme Court has repeatedly emphasized the critical importance of the

Sixth Amendment right to a jury trial. See, e.g., Apprendi v. New Jersey, 530 U.S.

466, 477 (2000) (describing right to jury trial as “the great bulwark of our civil and

political liberties”) (brackets and internal quotation marks omitted). It therefore

should not be surprising that this court has on several occasions held that the

erroneous denial of that right seriously affected the fairness, integrity, or public

reputation of judicial proceedings and warranted reversal under the plain-error

standard. See, e.g., Long v. United States, 83 A.3d 369, 383-84 (D.C. 2013) (where

trial judge unconstitutionally enhanced sentence based on findings made by trial

judge rather than by jury, error resulted in “lack of fairness” warranting reversal

under plain-error standard); Fortune, 59 A.3d at 957 (where trial judge

unconstitutionally found defendant guilty of offense as to which defendant had Sixth
                                           13

Amendment right to jury, and trial judge’s verdict was inconsistent with jury verdict

on related counts, allowing trial judge’s unconstitutional verdict to stand would

adversely affect fairness and integrity of judicial proceedings). Other courts have

reached the same conclusion in various circumstances. See, e.g., People v. Gatlin,

82 N.E.3d 584, 593, 587 (Ill. App. Ct. 2017) (“It is well settled that, when a

defendant’s right to a jury trial has been violated, such an error may be deemed” to

warrant reversal under the plain-error standard, because the error was “so serious

that it affected the fairness of the defendant’s trial and challenged the integrity of the

judicial process . . . .”) (internal quotation marks omitted); State v. Gomez-Lobato,

312 P.3d 897, 909 n.13 (Haw. 2013) (“Because of the fundamental constitutional

nature of the right to a jury trial, this court has held that the failure to waive a jury

trial” warrants reversal under the plain-error standard.).



      We do not mean to suggest that the fourth part of the plain-error test will

always be satisfied if a defendant has been denied a jury-trial right under the Sixth

Amendment. To the contrary, both the Supreme Court and this court have held that

failing to submit an element of the charged offense to the jury, in violation of the

Sixth Amendment right to have the jury decide all of the elements of the offense,

will not warrant reversal under the plain-error standard if the evidence as to the

omitted element was overwhelming and essentially uncontested. Johnson v. United
                                          14

States, 520 U.S. 461, 469-70 (1997); Bellamy v. United States, 810 A.2d 401, 406-

07 (D.C. 2002); see generally United States v. Gaudin, 515 U.S. 506, 511 (1995)

(Sixth Amendment “gives a criminal defendant the right to demand that a jury find

him guilty of all the elements of the crime with which he is charged”). We do hold,

though, that barring unusual circumstances not present in this case, the erroneous

denial of the Sixth Amendment right to a jury trial seriously affects the fairness,

integrity, or public reputation of judicial proceedings.



      The United States argues that special circumstances in this case support a

conclusion that any error did not seriously affect the fairness, integrity, and public

reputation of judicial proceedings. Specifically, the United States argues that Ms.

Miller is subject to deportation on other grounds, that the United States has not up

to this point relied upon the convictions in this case as a basis to deport Ms. Miller,

and that in fact Ms. Miller has been granted withholding of removal. We are not

persuaded that these circumstances justify affirmance.          As the United States

acknowledged at oral argument, it remains possible that Ms. Miller could be required

to leave the United States based on her convictions in this case. Moreover, as we

have explained, Ms. Miller’s Sixth Amendment right to a jury trial depended on the

penalties she faced at the time of trial, not on what penalties thereafter were or might

be imposed upon her. Thus, for example, consider a case in which a defendant
                                          15

charged with murder is unconstitutionally given a bench trial rather than a jury trial.

In our view, that error would seriously affect the fairness, integrity, or public

reputation of judicial proceedings even if the defendant were later sentenced to

probation or a minimal period of incarceration. We reach the same conclusion in

the present case.



      For the foregoing reasons, the judgment of the Superior Court is vacated and

the case is remanded for further proceedings.



                                               So ordered.
