The D.C. Court of Appeals has asked a Superior Court judge to issue a new sentence in the case of Lafayette Bailey, a former employee of the D.C. Prisoners’ Legal Services Project who devised an elaborate scheme to extort sexual favors from individuals who had been recently released from prison by using forged documents and the threat of re-incarceration.
The appeals court found that the lesser counts of sexual abuse Bailey received should be merged into the two first-degree sexual assault convictions and that the forgery convictions against him should be dropped.
In an opinion handed down today, Judge Anna Blackburne-Rigsby describes the “bizarre” scheme Bailey concocted to force himself upon two men who were on probation or parole from prison.
According to the opinion, Bailey used his position at the Prisoners’ Project to obtain criminal history and other information about recently released felons. To support his scheme, Bailey drafted falsified letters on his work computers under the letterhead of the Lois and Richard England Family Foundation, an organization that had donated to the Prisoners’ Project in the past. Those letters purported that Bailey had been hired by the foundation to find the offenders for the purpose of making a recommendation to the Justice Department regarding their re-prosecution.
In the case of the first victim, whose name is listed only as S.C., Bailey invited him over to his apartment in December 2004 under the guise of discussing job possibilities. When S.C. arrived at the apartment, Bailey showed him the letter and said that he could get the charges against S.C. dismissed in exchange for sexual favors. S.C. rejected Bailey’s sexual advances and left the apartment.
The second victim, M.S., received a similar call from Bailey in January 2005. Again, Bailey used the ruse of a letter calling on M.S. to be re-prosecuted and the notion that Bailey could have the charges dropped in exchange for sexual favors.
When M.S. tried to leave the apartment, Bailey showed him a gun he was carrying. M.S. complied with Bailey’s demands and was sexually assaulted twice.
At trial, prosecutors introduced as evidence digital copies of the letters found on Bailey’s computer. They also introduced hard copies of the letter addressed to S.C., which was found in a bag that Bailey had asked his sister to destroy after he was arrested. Bailey’s sister instead turned those papers over to the government.
Before the trial, Bailey asked that the charges related to the S.C. allegations be severed from those related to M.S. D.C. Superior Court Judge Rhonda Winston denied that request, finding that the two cases were “connected together” and that the evidence would be mutually admissible if the cases were separated.
Bailey was ultimately convicted of one count of attempted second-degree sexual abuse, stemming from the S.C. case. In the M.S. potion of the case, Bailey was convicted of two counts of first-degree sexual abuse, two counts of second-degree sexual abuse, two counts of third-degree sexual abuse, and two counts of fourth-degree sexual abuse. Regarding both victims, Bailey was convicted of two counts of forgery and one count of attempted tampering with evidence.
On appeal, Bailey, who was represented by Corinne Beckwith of the D.C. Public Defender Service, argued that it was unfairly prejudicial not to sever the two victims’ allegations. He also argued that it violated his double jeopardy rights to be convicted of multiple lesser sexual abuse counts in addition to the two first-degree counts when all of the counts stemmed from the same incident.
Arguing the case for the government was John Gidez, an assistant U.S. attorney with the U.S. Attorney’s Office for the District of Columbia.
The appeals court rejected the severance argument, finding that Winston acted within her discretionary rights by opting to join the two cases.
“Evidence of appellant’s use of the same fabricated letter, found both in his home and on his work computer, to extort his two victims into submitting to his assaultive conduct meets the Johnson mutual admissibility standard of being ‘closely intertwined’ evidence as well as evidence that places appellant’s charged crimes in an understandable context. We, therefore, cannot say that the trial court erred in finding mutual admissibility and denying the motion to sever,” Blackburne-Rigsby wrote, joined by Chief Judge Eric Washington and Frank Nebeker.
Regarding Bailey’s argument that the lesser sexual abuse counts should be merged into the first-degree counts, the appeals court determined that Bailey was right.
Applying the “fork in the road test,” which the opinion describes as the point at which a defendant makes a conscious decision to continue, the court found that there were just two incidents of sexual abuse: First, when Bailey assaulted M.S. with his finger, and then again, when he assaulted him with his penis.
As a result, the court remanded the case to the trial court, ordering Winston to vacate the second-, third-, and fourth-degree counts of sexual abuse and then sentence Bailey accordingly. The appeals court also dropped the forgery counts, finding that the government had failed to properly prove that the fake letters were “written instruments.”