United States v. Kidada Savage ( 2023 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
Nos. 14-1493, 14-2677 and 14-3975
UNITED STATES OF AMERICA
v.
KIDADA SAVAGE, agent of DA, agent of LI’L SIS, agent
of DIZMATIC, STEVEN NORTHINGTON, also known as
Smoke, also known as S1, also known as Syeed Burhannon,
also known as Michael Tillery, also known as Darnell Doss,
agent of Dollar Bill, ROBERT MERRITT, a/k/a
CORRECTIONAL OFFICER BISHOP, a/k/a B.J., agent of
DIRT
Kidada Savage,
Appellant in No. 14-1493
Steven Northington,
Appellant in No. 14-2677
Robert Merritt, Jr.,
Appellant in No. 14-3975
_______________
On Appeal from the United States District Court
For the Eastern District of Pennsylvania
(D.C. No. 2-07-cr -00550-006, 005, and 004)
District Judge: Honorable R. Barclay Surrick
_______________
Argued
December 15, 2022
Before: JORDAN, FUENTES and SMITH, Circuit Judges
(Filed: October 24, 2023)
_______________
Mark A. Berman [ARGUED]
Michele A. Smith
Hartmann Doherty Rosa Berman & Bulbulia
433 Hackensack Avenue – Suite 1002
Hackensack, NJ 07601
Counsel for Kidada Savage
Thomas C. Egan, III [ARGUED]
618 Swede Street
Norristown, PA 19401
Counsel for Steven Northington
Susan M. Lin [ARGUED]
Kairys Rudovsky Messing Feinberg & Lin
718 Arch Street – Ste. 501 South
Philadelphia, PA 19106
William R. Spade, Jr.
368 Laurel Chase Drive
Blowing Rock, NC 28605
Counsel for Robert Merritt
2
John M. Gallagher
Office of United States Attorney
504 W. Hamilton Street – Suite 3701
Allentown, PA 18101
David E. Troyer
Robert Zauzmer [ARGUED]
Office of United States Attorney
615 Chestnut Street – Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
The three appellants before us – Kidada Savage, Steven
Northington, and Robert Merritt – are serving life sentences for
their roles in the Kaboni Savage Organization (“KSO”), a
violent drug trafficking gang that was based in North
Philadelphia. The gang dealt in death and destruction,
including on one occasion the firebombing of the family home
of a former KSO member who had become a government
witness. That firebombing killed six people, including four
children.
We previously upheld the conviction and death sentence
of the gang’s eponymous ringleader, Kaboni Savage, who
ordered the firebombing. (To avoid confusion, this opinion
refers to Kaboni Savage and his sister Kidada Savage by their
first names.) In a corresponding opinion, we considered and
3
rejected all appellate arguments raised by Kaboni, most of
which had been advanced or adopted by Kidada, Merritt, and
Northington. See United States v. Savage, 970 F.3d 217, 231
(3d Cir. 2020). In the pages that follow, we resolve the
remaining arguments.
I. BACKGROUND
Under Kaboni’s leadership, the KSO sold powder
cocaine, “crack” cocaine, and liquid phencyclidine (“PCP”) in
North Philadelphia from 1997 through 2010. Each of the three
appellants was affiliated in some way with the KSO. While
Kaboni was incarcerated, Kidada coordinated KSO activities
and issued orders to other KSO members on her brother’s
behalf. Northington worked for the KSO as a drug dealer and
enforcer. On Kaboni’s instructions he caused and aided one
murder and committed another. 1 Merritt, while not a full-
fledged KSO member, sold drugs for the organization, often
1
As discussed in more detail below, Northington
controlled a drug block in North Philadelphia. He drove non-
party Lamont Lewis to the drug block and identified rival
dealer Barry Parker, who Lewis then shot for encroaching on
the territory. Northington also participated in the murder of
Tybius Flowers the day before Flowers was scheduled to
testify against Kaboni in a state-court murder trial.
4
with his older cousin, KSO member Lamont Lewis, and he
participated in the firebombing murders. 2
A. The Coleman Family Murders
The KSO’s murders of the Coleman Family occurred in
October of 2004. Between July and October of that year,
Kaboni made numerous phone calls to Kidada to discuss his
concern that KSO member Eugene Coleman was cooperating
with the police. 3 On October 8, 2004, Kaboni and Lewis
briefly spoke over the phone, during which time Lewis
expressed his fealty to Kaboni. Lewis then handed the phone
over to Kidada. After the Savage siblings finished their
conversation, Kidada told Lewis that Kaboni had ordered him
to “firebomb the Colemans’ house.” (App. at 10985-86.)
Kidada instructed that the firebombing should be done around
3:00 or 4:00 a.m. when “everybody is in the house,” and she
promised to give Lewis $5,000 for his efforts. (App. at 10986.)
Lewis enlisted Merritt to assist him, and early the next
morning the two cousins set out to firebomb the Coleman
family home. Before going to the Coleman house, Lewis and
Merritt went to a local gas station, bought two gas cans, filled
Lamont Lewis sold drugs for the KSO, which Lewis
2
would “bag up” in Kaboni’s basement. (App. at 10875,
10897.) Lewis entered into a plea agreement with the
government in this case and testified as a government witness.
3
Non-party Eugene Coleman also sold drugs for the
KSO. He was known within the KSO to be non-violent.
Coleman became a cooperating witness in a 2004 case against
Kaboni, as discussed in more detail herein.
5
them with gasoline, and put them in the trunk of the car. They
then headed to Merritt’s house in West Philadelphia to pick up
a gun, but at approximately 4:08 a.m., a Philadelphia highway
patrol officer pulled them over for speeding. The officer was
called to another scene, so he allowed them to leave and mailed
Lewis the speeding ticket.
After getting the gun, Lewis and Merritt returned to
North Philadelphia and parked around the corner from the
Coleman house. They removed the cans from the trunk,
stuffed a cloth into one of the cans to serve as a wick, and
carried the two cans to the house. As they arrived at the front
porch, Lewis gave Merritt a lighter, then he kicked in the front
door, entered the house, and fired two shots. Lewis heard a
woman say, “Who’s that?” when he kicked in the door. (App.
at 11002.) Merritt immediately ran into the house and threw a
lit gas can into the living room, causing a “big explosion.”
(App. at 11002). He then exited the house and grabbed the
unlit can and threw it into the house, too. Lewis then left a
message on Kidada’s phone, saying “it was done.” (App. at
11003-04).
The following individuals were killed by the arson:
Marcella Coleman, 54, Tameka Nash, 34, Sean Rodriguez, 15,
Tajh Porchea, 12, Khadijah Nash, 10, and Damir Jenkins, 15
months. 4
4
Lewis received $2,000 and a bottle of PCP oil for
killing the Coleman family. Lewis complained to Kidada that
she had not informed him that there were children in the home.
When Coleman learned that his family members were
murdered, he entered the protection of the U.S. Marshals’
Witness Security Unit.
6
After the Coleman family murders, the government
obtained court orders to place a recording device near Kaboni’s
federal detention center cell and another in the detention
center’s visitation room to intercept conversations Kaboni had
with his friends, associates, and other inmates. In the
recordings of the conversations that followed, Kaboni made
various vulgar and brazen statements expressing satisfaction
with the deaths of the Coleman family; he also threatened to
kill additional witnesses and their relatives. See infra n.19.
B. Procedural History
On May 9, 2012, a grand jury in the Eastern District of
Pennsylvania returned the Fourth Superseding Indictment in
this case, upon which the parties ultimately proceeded to trial.
The three defendants here were charged as follows: Count One
charged Kidada, Northington, and Merritt with RICO
conspiracy; Counts Five and Seven charged Northington with
murder in aid of racketeering for the deaths of Barry Parker and
Tybius Flowers, respectively; Count Nine charged Merritt with
conspiracy to commit murder in aid of racketeering; Counts
Ten through Fifteen charged Merritt and Kidada with murder
in aid of racketeering, one count for each of the six Coleman
family members who perished in the fire; Count Sixteen
charged Merritt and Kidada with retaliating against a witness;
and Count Seventeen charged Merritt and Kidada with using
fire in the commission of a felony. 5
5
Count Eight, which charged Northington with witness
tampering, was dismissed prior to trial, by agreement with the
government. Kaboni was charged on all counts (Counts Two,
Three, Four, and Six pertained only to him).
7
On May 13, 2013, the jury found Kidada and
Northington guilty of all the crimes with which they had been
charged; the jury found Merritt guilty on the RICO conspiracy
count but not guilty as to all other counts.
Northington’s capital penalty phase for the Flowers
murder, Count Seven, commenced on June 5, 2013. The jury
unanimously sentenced Northington to life imprisonment on
that count, and the District Court sentenced him to two
additional, concurrent terms of life imprisonment for Counts
One and Five. On February 21, 2014, the District Court
sentenced Kidada to concurrent terms of life imprisonment on
Counts One and Ten through Sixteen, and the Court imposed a
consecutive ten-year sentence on Count Seventeen. On
September 19, 2014, the District Court sentenced Robert
Merritt to life imprisonment on Count One. All four
defendants timely appealed. 6
As noted earlier, we affirmed the jury’s guilty verdict
and the District Court’s imposition of a capital sentence on
Kaboni in a precedential opinion. 7 The following discussion
6
Kaboni’s penalty phase hearings began on May 21,
2013. On May 31, the jury unanimously sentenced him to
death on all 13 capital counts (Counts 2-7 and 10-16). On June
3, the District Court imposed death sentences on those counts,
and also sentenced him to life imprisonment on Count 1 and to
ten-year terms of imprisonment on Counts 9 and 17.
7
Among other things, we held that (1) the late
appointment of a substitute capital-qualified counsel to
represent Kaboni did not constitute a constructive denial of the
8
pertains to arguments raised by Kidada, Merritt, and
Northington that we did not reach in our earlier opinion.
II. DISCUSSION 8
A. The District Court did not abuse its discretion
in refusing to grant Kidada a new trial based
on a conflict allegedly held by one of her two
attorneys.
Kidada asserts that she was denied her Sixth
Amendment right to counsel because one of her attorneys,
right to counsel, Savage, 970 F.3d at 244-48; (2) a capital
defendant does not have a statutory right to a jury drawn from
the county of the offense, id. at 250-52; (3) the District Court
did not clearly err in finding that African Americans were not
underrepresented in the qualified jury wheel, id. at 255-62; (4)
the District Court did not clearly err in finding that a
preemptory strike by the government was not racially
motivated, id. at 262-72; (5) any error in the District Court’s
transferred intent instruction was not plain, id. at 272-83; (6)
the admission of victim-impact evidence at the penalty phase
was not clearly erroneous, id. at 298-303; and (7) as a matter
of first impression, it was not unfairly prejudicial at the penalty
phase to admit color autopsy photographs of the firebombing,
id. at 303-06.
8
The District Court had jurisdiction under 18 U.S.C.
§ 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a).
9
Christopher Phillips, was burdened by a conflict of interest. 9
Specifically, she argues that Phillips’s representation violated
her Sixth Amendment right to conflict-free counsel, that
Phillips created a second conflict of interest by opposing her
motion for a mistrial, and that it was per se reversible error for
the District Court not to have immediately held an evidentiary
hearing on the matter. Before considering those three
arguments, we briefly provide an overview of the facts relevant
to her claim.
On March 19, 2013, six weeks into trial, at an off-the-
record conference, the government disclosed its receipt from
the Philadelphia District Attorney’s Office of an “assignment”
document showing that Phillips, while working in that office
as an assistant district attorney, had been assigned in October
2003 to prosecute Kaboni and a co-defendant, Anthony
Mitchell, for the murder of Kenneth Lassiter. 10 (Answering
Br. at 292.) This revelation raised the possibility of a conflict
of interest, not only because Phillips had once been assigned to
prosecute Kidada’s brother, but also because the government
9
Kidada was represented by both Phillips and co-
counsel Teresa Whalen at trial. The indictment against Kidada
gave notice of the government’s intent to seek the death penalty
against her, and the District Court appointed Whalen to serve
as learned counsel in the capital case. Whalen was permitted
to stay on the defense team when the case was de-certified as a
capital case with respect to Kidada.
10
After ordering the murder of government witness
Tybius Flowers, Kaboni was acquitted in state court of the
Lassiter murder. He was later convicted of both murders in
this case.
10
in this case had charged the Lassiter murder as a predicate
offense for the RICO conspiracy charge, and Phillips was
tasked with defending Kidada as to that count.
To address the potential conflict, the government
moved on April 5, 2013, for an evidentiary hearing. The
District Court granted the motion and subsequently appointed
separate counsel to represent the interests of Kidada and of
Phillips with respect to the alleged conflict. Kidada’s conflicts
counsel then filed a motion for a mistrial on April 26, 2013.
Instead of immediately holding an evidentiary hearing, the
Court allowed the trial to continue uninterrupted, and the jury
returned a guilty verdict against Kidada on May 13, 2013.
A few days after the jury returned its verdict, the District
Court set a briefing schedule for the mistrial motion and
scheduled a hearing for June 17, 2013. Phillips, through his
conflicts counsel, filed a brief opposing the mistrial motion. At
the hearing, he testified that he had no recollection of having
been assigned to the Lassiter matter when he was appointed to
represent Kidada. He further testified that he never reviewed
the evidence in that case, met with witnesses, contacted the
victim’s family, or discussed the case with anyone. Indeed,
nine days after Phillips was assigned to the Lassiter murder
prosecution, the case was reassigned to another assistant
district attorney.
The District Court denied Kidada’s motion for a
mistrial. In denying the motion, the Court credited Phillips’s
testimony about his lack of involvement in the prior case,
found that Phillips’s brief assignment to the Lassiter matter did
not limit his ability to vigorously defend Kidada, and observed
that Kidada had failed to demonstrate that she suffered any
11
prejudice because of Phillips’s prior assignment to the Lassiter
matter. 11
Turning to the legal issues, we begin with Kidada’s
argument that it was per se reversible error for the District
Court to wait until after the jury returned its verdict to hold a
hearing on the alleged conflict of interest. 12 The Sixth
Amendment guarantees a defendant the right to effective
assistance of counsel, which includes “a correlative right to
representation that is free from conflicts of interest.” Wood v.
Georgia, 450 U.S. 261, 271 (1981). “[A] court confronted with
and alerted to possible conflicts of interest must take adequate
steps to ascertain whether the conflicts warrant separate
counsel.” Wheat v. United States, 486 U.S. 153, 160 (1988).
11
We generally do not address conflict of interest
claims on direct appeal. United States v. Morena, 547 F.3d
191, 198 (3d Cir. 2008) (“The rationale behind this practice is
that collateral review allows for adequate factual development
of the claim, especially because ineffective assistance claims
‘frequently involve questions regarding conduct that occurred
outside the purview of the district court and therefore can be
resolved only after a factual development at an appropriate
hearing.’”) (quoting Government of Virgin Islands v. Zepp, 748
F.2d 125, 133 (3d Cir. 1984)) (internal quotation marks
omitted). Here, however, the District Court held a hearing on
the issue, providing us with an adequate record for review.
12
We review a district court’s determination with
respect to an alleged conflict of interest for an abuse of
discretion. United States v. Voigt, 89 F.3d 1050, 1074 (3d Cir.
1996).
12
As the District Court explained, the potential conflict in
this case came to light “six weeks after trial began, and after
the case had already demanded a significant amount of time
from jurors, the parties, counsel, witnesses, and the Court.”
(Kidada Supp. App. at 66 n.9.) The Court concluded that “[i]t
would have made little sense to adjourn the trial to deal with
this issue. The only reasonable course was to continue with the
trial and address the conflict issue after the jury had reached its
verdict.” (Kidada Supp. App. at 66 n.9.)
We agree that the District Court’s course of conduct was
reasonable, and we reject Kidada’s suggestion that the Sixth
Amendment imposes a rigid, blanket requirement that a court
halt trial proceedings to inquire into an alleged conflict. 13
Rather, what constitutes “adequate steps” will necessarily vary
depending on the circumstances of each case. In an instance
such as this, where the timing of a court’s investigation is at
issue, we will generally defer to the district court’s judgment
unless the objecting party can articulate prejudice and show
that the court abused its discretion. Cf. Dietz v. Bouldin, 579
U.S. 40, 47 (2016) (“[D]istrict courts have the inherent
authority to manage their dockets and courtrooms with a view
toward the efficient and expedient resolution of cases.”).
Here, Kidada recognizes that the post-trial timing of the
conflict hearing “reflected the court’s concern about the time
and expense that already had been incurred in connection
13
Kidada cites several out-of-circuit cases to support
that proposition, but those cases address circumstances in
which the trial court failed to undertake any inquiry into an
alleged conflict.
13
[with] this trial, which was a death penalty prosecution.”
(Kidada Opening Br. at 44 n.7.) Additionally, Kidada has
never contested the fact that she was represented throughout
her case by Phillips’s co-counsel, Teresa Whalen, who was not
burdened by an alleged conflict of interest. And finally, as
discussed in more detail below, Kidada has failed to show
prejudice. Considering the late stage at which the potential
conflict was brought to the Court’s attention, and that Kidada
was represented by competent co-counsel throughout trial, we
conclude that the Court took adequate steps in immediately
appointing conflicts counsel and holding a post-trial hearing on
the alleged conflict.
We next consider the merits of Kidada’s allegation that
Phillips’s representation of her was infected by a conflict of
interest. To prove a Sixth Amendment violation based on a
lawyer’s representation of another client, a defendant “must
establish that an actual conflict of interest” existed. Cuyler v.
Sullivan, 446 U.S. 335, 350 (1980). An “actual conflict of
interest is evidenced if, during the course of the representation,
the defendants’ interests diverge with respect to a material
factual or legal issue or to a course of action.” United States v.
Gambino, 864 F.2d 1064, 1070 (3d Cir. 1988) (internal
quotation marks omitted). Examples include refusing to cross-
examine a witness, failing to respond to inadmissible evidence,
or failing to “diminish the jury’s perception of a [co-
conspirator’s] guilt.” Cuyler, 446 U.S. at 349.
The record indicates that during the nine days in 2003
when Phillips was an assistant district attorney assigned to the
Lassiter matter, he took no action on that case. He did not even
recall the assignment until the government brought the
assignment memo to his attention six weeks into the Savage
14
trial. It is difficult, then, to imagine how Phillips’s brief
assignment to the Lassiter matter could have limited his ability
to represent Kidada. More importantly, except for Phillips’s
opposition to Kidada’s motion for a mistrial, which we discuss
below, Kidada has not pointed to – either in briefing or oral
argument – any concrete instance of prejudice resulting from
Phillips’s representation, and nothing in the trial record
suggests that Phillips’s interests ever diverged from hers. She
has failed to establish an actual conflict of interest.
But that does not slow her protestations. She contends
that the actual conflict standard is inapplicable here because,
“in contrast to this case,” the Supreme Court in Cuyler v.
Sullivan applied the standard where “the trial court [was] never
made aware of the conflict of interest.” (Kidada Opening Br.
at 31 n.5 (citing Cuyler, 446 U.S. at 349-50).) In other words,
Kidada asserts that the actual conflict standard applies only
when the defendant fails to raise an objection at trial. But our
own precedent forecloses that narrow reading of Cuyler. In
Simon v. Government of the Virgin Islands, we held that “[a]
petitioner claiming a conflict of interest must prove (1)
multiple representation that (2) created an actual conflict of
interest that (3) adversely affected the lawyer's performance.”
929 F.3d 118 (3d Cir. 2019) (internal quotation marks
omitted). In all cases, then, the “critical inquiry is whether
counsel actively represented conflicting interests.” Zepp, 748
F.2d at 135 (internal quotation marks omitted).
Unable to identify any point where Phillips’s interests
diverged from her own with respect to a material factual or
legal issue in the case, Kidada alleges that her “lead counsel
secretly harbored an intention to take a position adverse to the
interests of his own client, which he then did in filing his own
15
separate opposition to Kidada’s motion for a mistrial.”
(Kidada Opening Br. at 25.) Specifically, she claims that
Phillips subordinated her interests “by filing briefs through his
own separate counsel attempting to vindicate his own conduct
and opposing, and taking a position actually adverse to, his
client’s interests.” (Kidada Opening Br. at 39.)
Phillips’s opposition to Kidada’s mistrial motion falls
short of evincing an actual conflict. First, Phillips explained at
the hearing that he opposed Kidada’s motion because he felt
compelled to correct a factual misrepresentation, namely, that
he had obtained confidential information about the Lassiter
matter while serving as an assistant district attorney, when in
fact he had not. It was fully proper for Phillips to endeavor to
correct a factual misrepresentation that could harm his
professional reputation. Moreover, Philips, like all attorneys,
has a “duty of candor toward the court[.]” Rosales-Mireles v.
United States, 138 S. Ct. 1897, 1911 (2018). To have remained
mute in the face of a false factual assertion that he was
specially, if not uniquely, situated to address would have
violated that duty.
Second, Kidada moved for a mistrial after the
evidentiary portion of the trial had concluded and Phillips’s
substantive involvement at trial had all but ended. Phillips’s
co-counsel, Teresa Whalen, delivered the closing argument on
behalf of Kidada. Accordingly, even if Phillips had created a
prospective conflict of interest at the moment he opposed
Kidada’s motion for a mistrial, Kidada has not shown that their
interests ever diverged before that point, and she cannot
support her Sixth Amendment claim based on the bare
allegation that Phillips “secretly harbored” an unexplained
malintent. The actual prejudice standard requires more; it
16
requires, at a minimum, that the dissatisfied defendant produce
some evidence of divergent interests as to a material factual or
legal issue. And that is something Kidada has never done.
The District Court did not abuse its discretion
in denying motions to sever.
Both Kidada and Northington filed motions to sever,
seeking individual trials. They argued that severance was
warranted because they were charged with only a subset of the
crimes charged against Kaboni, and that the number of
defendants and charges in the case would confuse the jury.
The District Court denied their severance motions in a
comprehensive opinion, determining that “[t]he seventeen
counts are manageable” for a jury in a single case. (Kidada
Supp. App. at 25.) The Court reasoned that “the allegations in
the Indictment with respect to each Defendant are clear,” and
that “[t]he jury will be able to compartmentalize the evidence
against the various Defendants, particularly when provided
with instructions by the Court.” (Kidada Supp. App. at 41.)
Kidada and Northington now appeal the denial of their
severance motions.
As we have often observed, a defendant, properly joined
with other defendants in a criminal indictment, has “a heavy
burden in gaining severance.” United States v. Quintero, 38
F.3d 1317, 1343 (3d Cir. 1994). We review for abuse of
discretion a district court’s denial of severance. United States
14
We review a district court’s denial of a severance
motion for abuse of discretion, United States v. Hart, 273 F.3d
363, 369 (3d Cir. 2001), as more fully discussed herein.
17
v. Hart, 273 F.3d 363, 369 (3d Cir. 2001). But even when there
has been such an abuse of discretion, we will reverse a
conviction only if the appellant can show that the denial of
severance caused him “clear and substantial prejudice
resulting in a manifestly unfair trial,” and it is insufficient
“merely to allege that severance would have improved his
chances for acquittal.” United States v. Eufrasio, 935 F.2d 553,
568 (3d Cir. 1991) (quoting United States v. Reicherter, 647
F.2d 397, 400 (3d Cir. 1981)).
In assessing whether a defendant has suffered clear and
substantial prejudice, the key inquiry is “whether the jury could
have been reasonably expected to compartmentalize the
allegedly prejudicial evidence in light of the quantity and
limited admissibility of the evidence.” United States v. De
Peri, 778 F.2d 963, 984 (3d Cir. 1985). We will not find
prejudice “just because all evidence adduced is not germane to
all counts against each defendant,” or because certain
defendants are “seemingly less culpable,” or because evidence
is “more damaging to one defendant than others.” Eufrasio,
935 F.2d at 568.
In short, the bar is high and reflects the “preference in
the federal system for joint trials of defendants who are
indicted together.” Zafiro v. United States, 506 U.S. 534, 537
(1993). A joint trial promotes efficiency, avoids inconsistent
verdicts, id., permits fact finders to assess the “full extent of [a]
conspiracy,” United States v. Provenzano, 688 F.2d 194, 199
(3d Cir. 1982), abrogated on other grounds by In re Ins.
Brokerage Antitrust Litig., 618 F.3d 300, 372 (3d Cir. 2010),
and prevents “the tactical disadvantage to the government from
disclosure of its case.” United States v. Jackson, 649 F.2d 967,
973 (3d Cir. 1981).
18
Kidada and Northington contend that, because they
were charged with only a subset of the 12 murders instigated
by Kaboni in furtherance of the RICO enterprise, and due to
the complexity of the case, they were prejudiced by the
spillover of emotion evoked by evidence of crimes they didn’t
commit. 15 But, as an initial matter, Kidada and Northington
cannot show clear and substantial prejudice by simply pointing
to the fact that the government introduced evidence pertinent
to other defendants. Were that the case, “a joint trial could
rarely be held.” United States v. Dansker, 537 F.2d 40, 62 (3d
Cir. 1976), abrogated on other grounds by Griffin v. United
States, 502 U.S. 46, 57 n.2 (1991). Rather, as explained above,
the lodestar of the prejudice inquiry is “whether the evidence
is such that the jury cannot be expected to compartmentalize it
and then consider it for its proper purposes.” Id. (internal
citations omitted). That showing is absent here. We have
repeatedly affirmed convictions of defendants who were
jointly tried alongside co-defendants charged with more
serious or additional crimes, so long as the jury could
compartmentalize the evidence. See, e.g., United States v.
Walker, 657 F.3d 160, 168-71 (3d Cir. 2011) (affirming denial
of severance where two brothers were charged with the same
six crimes and only one of the brothers was charged with two
additional but related crimes); United States v. Sandini, 888
F.2d 300, 304-07 (3d Cir. 1989) (affirming denial of severance
where one conspirator was charged with a more serious
15
As a reminder, Kidada abetted the murders of the six
Coleman family members. Northington, for his part,
participated in the murders of Barry Parker and Tybius
Flowers.
19
continuing criminal enterprise offense); United States v.
Sebetich, 776 F.2d 412, 427 (3d Cir. 1985) (affirming denial of
severance where three defendants were charged with multiple
robberies, even though one defendant complained that shots
were fired only in robberies with which he was not charged,
and even though two of the three defendants made
incriminating statements to the police).
More particularly as to compartmentalization, Kidada
and Northington have not demonstrated why the jury was
incapable of managing the evidence here. Although they
describe the volume of evidence introduced by the government
against their codefendants, they do not dispute that the Court
instructed the jury to consider the charges against each
defendant separately. And, of course, we presume that the jury
will follow limiting instructions and will be able to
appropriately analyze the evidence and issues. See Richardson
v. Marsh, 481 U.S. 200, 211 (1987) (“[J]uries are presumed to
follow their instructions.”); United States v. Urban, 404 F.3d
754, 776 (3d Cir. 2005) (“We presume that the jury follows
such [limiting] instructions, and regard such instructions as
persuasive evidence that refusals to sever did not prejudice the
defendant.”) (internal citation omitted).
The verdicts in this case reinforce the soundness of that
presumption because they show that the jury thoughtfully
differentiated the crimes committed by the defendants,
yielding some not-guilty verdicts and, in Northington’s case,
sparing his life. For example, the jury found that the
government failed to prove that Kidada, Northington, or
Merritt were involved in a drug conspiracy involving quantities
that would have subjected them to higher statutory penalties.
To take another example, the jury found that the government
20
proved that Kaboni and Kidada engaged in witness retaliation
by killing the Coleman family members, but they found that
the government failed to meet its burden of proof as to Merritt.
By the same token, the jury found Merritt not guilty of
substantive counts related to the murders but convicted the
Savage siblings as to those counts. And finally, in a separate
seven-day penalty proceeding, the jury unanimously sentenced
Northington to life in prison after having sentenced Kaboni to
death.
The jury’s ability to thoughtfully differentiate among
the defendants undermines Northington’s assertion that,
considering the “graphic” and “profane” evidence against
Kaboni, the jury would necessarily find him “equally
culpable.” (Northington Opening Br. at 70-71.) On the
contrary, it is possible that Northington and Kidada benefited
from being tried alongside Kaboni, as it may have been
apparent to the jury that they were relatively less culpable than
he was and should be treated accordingly. 16
Finally, Kidada asserts that “[t]he prejudice against
[her] was further heightened by the fact that she was tried by a
death-qualified jury as the only defendant who was not facing
the death penalty.” (Kidada Opening Br. at 77.) But the
Supreme Court has specifically rejected that type of argument.
See Buchanan v. Kentucky, 483 U.S. 402, 420 (1987)
16
We are not suggesting that a severance motion should
be decided one way or another on a “next to him you’re a saint”
rationale, although extreme differences in culpability could be
a consideration. We are, however, observing that, in this case,
the District Court’s anticipatory assessment of the jury’s
capability proved to be accurate.
21
(petitioner was not deprived of his Sixth Amendment right to
an impartial jury because the prosecution was permitted to
“death-qualify” the jury to address co-defendant’s exposure to
the death penalty). A death-penalty-qualified juror, like any
other, is expected to follow the court’s instructions, presume
every defendant is innocent until proven guilty, and not vote to
convict except upon proof beyond a reasonable doubt. The
jurors here clearly did so.
The District Court did not abuse its discretion in
denying the motions to sever in this case.
Kidada argues that the District Court improperly
admitted certain inflammatory comments by Kaboni. 18 She
asserts that the comments, which were admitted as co-
conspirator statements, were not made in furtherance of a
conspiracy, that the District Court erred by failing to issue a
contemporaneous limiting instruction, and that the comments
were highly prejudicial. Before addressing her arguments, we
provide a sampling of those deeply disturbing statements and
describe what transpired at trial.
17
We review the District Court’s decision regarding the
admissibility of evidence for an abuse of discretion. United
States v. Serafini, 233 F.3d 758, 768 n.14 (3d Cir. 2000).
18
Merritt adopts Kidada’s argument in full, without
presenting any additional analysis.
22
In pretrial motions, Kaboni moved to preclude wiretap
recordings of things he said to fellow inmates. In those
conversations, Kaboni made numerous damning admissions,
telling of his delight with the Coleman murders and expressing
his intent to kill law enforcement officials and other witnesses.
The District Court allowed the government to introduce most
of those recordings.
We decline to catalogue all his heinous statements and
instead provide three examples in the footnote below, to
illustrate their shocking character. 19 Because Kaboni did not
19
In one instance, Kaboni complained to a prisoner in
an adjoining cell about having missed his daughter’s eighth
grade graduation, stating, “[t]hat’s why [they] got to pay …
Those … rats.” (App. at 1306.) Kaboni continued, “Their kids
got to pay, for making my kids cry. I want to smack one of
their four-year-old sons in the head with a bat …. Straight up.
I have dreams about killing their kids ... [c]utting their kids’
heads off.” (App. at 1306-07.) In another statement to the
same prisoner, Kaboni stated, “Yo. Can you imagine
[Coleman’s] face, man .... When that news flash or that captain
went and got him. They didn’t tell him we got some good news
and we got some bad news. They said we got some bad news
.... (Laughs) It don’t stop. Just put[,] just put etcetera after the
word dead.” (App. at 1384.) And Kaboni bragged to another
prisoner that Coleman “couldn’t view” the bodies of his family
members because they had been burned in the fire. Kaboni
said, “They shoulda, you know where they shoulda took him?
They should took him got, got some barbeque sauce and
poured it on them[.]” (App. at 1144.)
23
appeal the admissibility of the recordings, we did not directly
address in our prior opinion whether they were admissible. We
did observe, however, that the recordings “demonstrated
[Kaboni’s] complicity in the Coleman firebombing. They also
revealed [his] great satisfaction that the killings had taken
place, and the intercepted conversations revealed plans to kill
yet other witnesses and their families.” Savage, 970 F.3d at
235.
At trial, Kidada’s counsel requested a limiting
instruction as to the statements that Kaboni made to other
prisoners, arguing that the prisoners were not co-conspirators
and Kaboni’s statements to them were not made in furtherance
of the conspiracy and therefore were not admissible against
her. The District Court admitted the recordings and declined
to give a contemporaneous limiting instruction.
The District Court did, however, instruct the jury as to
both co-conspirator liability and the Kobani recordings in its
jury charge. It explained that the jury could
consider the acts and the statements of any other
member of the conspiracy during and in
furtherance of the conspiracy as evidence against
a defendant whom you have found to be a
member of the conspiracy. When persons enter
into a conspiracy, they become agents for each
other, so that the acts and the statements of one
conspirator during the existence of the
conspiracy and in furtherance of the conspiracy
24
are considered the acts and statements of all other
conspirators and are evidence against them all. 20
20
The District Court also instructed:
[T]he acts or statements of any member of a
conspiracy are treated as the acts and statements
of all members of the conspiracy if these acts and
statements were performed or spoken during the
existence of the conspiracy and to further the
objectives of the conspiracy. Therefore, ladies
and gentlemen, you may consider as evidence
against a defendant any act or statement made by
any member of the conspiracy during the
existence of the conspiracy and to further the
objectives of the conspiracy. You may consider
these acts and statements, even if they were done
or made in the absence of that defendant and
without that defendant’s knowledge at all. As
with all of the other evidence presented, ladies
and gentlemen, in this case, it is for you to decide
whether you believe this evidence and how much
weight you will give it. So, ladies and
gentlemen, the acts and the statements of a
conspirator in furtherance of the conspiracy are
the acts and statements of all members of the
conspiracy.
(App. at 15147-48.)
25
(App. at 15154-55.)
As to the cell block recordings, the District Court
specifically reminded the jury that it had “heard tape
recordings of things that certain defendants said,” which
included “foul or offensive language” or “disturbing
statements.” (App. at 15122.) The Court then cautioned that
this evidence was admitted for “limited purpose[s],” and could
be considered “only for the purpose of deciding whether the
defendant had the state of mind, knowledge or intent necessary
to commit the crimes charged in the indictment,” and not as
“proof that the defendant has a bad character or a propensity to
commit crimes.” (App. at 15122-23.) Further on, the Court
also instructed the jury that it “must separately consider the
evidence against each offense charged[.]” (App. 15127.)
Notably, Kidada neither requested supplemental instructions,
nor raised any objections to the District Court’s final
instructions.
Kidada makes several arguments regarding the cell
block recordings introduced at trial. She first argues that “[t]he
district court admitted the recordings as co-conspirator
statements, under Federal Rule of Evidence 801(d)(2)(E), and
over the repeated objections of defense counsel.” (Kidada
Opening Br. at 45.) Because the conversations were not in
furtherance of the conspiracy, she says “the district court
abused its discretion in admitting” the conversations between
Kaboni and non-members of the conspiracy, some of which
26
“were played multiple times to the jury.” (Kidada Opening Br.
at 47-51.)
That argument misses the mark because the District
Court did not ultimately admit the cell block recordings against
Kidada under the co-conspirator hearsay exception. Rather,
the Court admitted them against Kaboni alone because they
were highly probative of his guilt and not sufficiently
prejudicial to outweigh their probative value. Indeed, the
Court in its final instructions cautioned the jury that it should
consider the recorded conversations introduced at trial only in
assessing whether the defendant who made the statements had
the state of mind, knowledge, or intent necessary to commit the
charged crimes and not for any other purpose.
Kidada next argues that, notwithstanding the final jury
instructions, the District Court erred because it “did not clarify
for the jury which of the hundreds of recordings the
government had introduced at trial they could consider in
assessing Kidada’s guilt.” (Kidada Opening Br. at 58.) More
specifically, Kidada argues that the Court erred because it “did
not at any time” tell the jury that “the cell block recordings
were admissible against Kaboni alone.” (Kidada Opening Br.
at 58.) In support, she cites Zafiro, 506 U.S. at 539, in which
the Supreme Court recognized that a joint trial of co-
defendants may carry the risk of a jury being unable to make a
reliable judgment about guilt or innocence “when evidence that
the jury should not consider against a defendant and that would
not be admissible if a defendant were tried alone is admitted
against a codefendant.”
While it may have been the better course to give a
contemporaneous limiting instruction regarding the jailhouse
27
recordings, we cannot say that the District Court abused its
discretion in declining to do so. It sufficiently cautioned the
jury in its final instructions, directing the jury to consider the
recorded conversations only in assessing whether the
defendant who made the statements – Kaboni – had the state of
mind, knowledge, or intent necessary to commit the charged
crimes and not for any other purpose. Further, both Kidada and
Merritt must have regarded those instructions as adequate,
since neither requested supplemental final instructions or
raised any objections to the District Court’s final instructions.
As for Kidada’s argument on appeal that the District
Court “did not clarify, at any time during the trial or in its final
charge to the jury which of the hundreds of recordings the
government had introduced at trial were admissible against
which of the four co-defendants,” (Kidada Opening Br. at 76),
the District Court need not have supposed that the jury would
fail to follow the instructions it received. Moreover, if Kidada
was concerned that the jury would hold her accountable for
Kaboni’s comments to others, her counsel was free to address
that issue in closing argument. Her counsel did not mention
the cell block statements in closing, however, which makes
sense, as they were irrelevant to the government’s case against
her. The government, for its part, never suggested in its closing
argument that the recordings had relevance to Kidada’s guilt.
Finally, Kidada contends that the cell block recordings
were overwhelmingly prejudicial to her because, in her view,
the government’s “case against [her] … was focused on linking
her with her brother[’s] activities” and “clearly would have
been materially less compelling without the recordings of
Kaboni[.]” (Kidada Opening Br. at 61.) Kidada asserts that
“there can be no sure conviction that the guilty verdicts against
28
Kidada would have been returned in the absence of the
overwhelming amount of uniquely and unfairly prejudicial
hearsay that the government introduced at trial in the form of
Kaboni’s cell block recordings.” 21 (Kidada Opening Br. at 60.)
This argument falls flat. Her own inculpatory correspondence
with Kaboni, the testimony of witnesses such as Lamont
Lewis, and a threatening letter 22 from Kidada to Coleman
provided the jury with a more than sufficient evidentiary basis
to establish her participation in the Coleman family murders
and in the affairs of the KSO.
For those reasons, the District Court did not abuse its
discretion in admitting the cell block recordings and declining
to give a contemporaneous limiting instruction.
D. The District Court did not abuse its discretion
in denying Northington’s motion for a
mistrial.
Northington next argues that he is entitled to a mistrial
because the prosecutor identified him as one of the perpetrators
21
(See also Kidada Opening Br. at 61 (“The
government’s case against Kidada, which was focused on
linking her with her brother[’s] activities, clearly would have
been materially less compelling without the recordings of
Kaboni, to whom – as the government portrayed it – she was
particularly devoted.”)).
22
Kidada wrote to Coleman: “Death before dishonor …
to your family. If you said something, let us know. If you
didn’t, let us know. We have to know what’s going on. Don’t
say shit to nobody.” (App. at 8946.)
29
of the Coleman family firebombing during closing arguments,
even though he was not charged with committing that crime.
Because the District Court immediately cured any error, we
conclude that it did not abuse its discretion in denying
Northington’s motion for mistrial.
During closing arguments, the government summarized
the Coleman family murders. Northington’s three co-
defendants were charged with those murders, but Northington
was not. The AUSA concluded the government’s closing
argument, however, by pointing at the defendants and
repeating, “you killed them.” (App. 14396.) The transcript of
the proceeding in the jury’s presence reads as follows:
AUSA: There were six beautiful, healthy, loving
people in that house and you killed them. You
killed them, and you killed them, and you killed
them.
Counsel: Objection. We are not charged with
that arson.
AUSA: I was not pointing at Mr. Northington.
Court: That is true.
AUSA: You know who killed them. Kaboni
Savage, Kidada Savage, Robert Merritt and
Lamont Lewis.
(App. at 14396-97.)
30
After the AUSA completed the government’s closing
argument, a sidebar was held, at which time Northington
moved for a mistrial based on the prosecutor’s having pointed
at him. The District Court denied the motion and stated the
following: “I will instruct the jurors when they come back that
Mr. Northington is not charged with that crime and they are not
to consider him as being charged with that crime.” (App. at
14399.) The District Court then instructed, “[m]embers of the
jury, just one clarification for you. Ladies and gentlemen, you
should understand that Steven Northington is not charged with
any of the Coleman arson murders. Okay? He is not charged
with those crimes.” (App. at 14400.)
We review a denial of a motion for a mistrial for an
abuse of discretion. United States v. Rivas, 493 F.3d 131, 139
(3d Cir. 2007). When a motion for a mistrial is based on a
prosecutor’s remarks in a closing statement, we first determine
whether the prosecutor’s remarks were improper. United
States v. Zehrbach, 47 F.3d 1252, 1264 (3d Cir. 1995) (en
banc). If the remarks are improper, as they seem to have been
in this case, 23 “we will go on to weigh the remarks under a
23
Indeed, it seems odd for the AUSA, with an
endorsement from the Court, to disclaim having pointed at
Northington when there were only four defendants and the
“you killed them” declaration was made four times. But, as the
punctuation in the transcript indicates, it is possible that the
statement was made once as to the three culpable defendants
collectively and then was repeated as the prosecutor pointed to
each of them individually. In any event, the government does
not now dispute the misidentification. (See Answering Br. at
364 (“Mistakenly, and inadvertently, the prosecutor also
31
harmless error standard.” Id. In determining whether improper
remarks were harmless, we consider “the scope of the
objectionable comments and their relationship to the entire
proceeding, the ameliorative effect of any curative instructions
given, and the strength of the evidence supporting the
defendant’s conviction.” Id. at 1265. Here, all three factors
support a finding that Northington was not prejudiced.
First, as the government points out, “the challenged
statement consisted of one sentence comprising just two lines
in a closing argument that spanned two days, and 277 pages of
transcript.” (Answering Br. at 366.) See Zehrbach, 47 F.3d at
1260, 1267 (finding no prejudice when challenged remarks
regarding prosecutor’s view of credibility and guilt of two
witnesses were two sentences in a closing argument that filled
40 pages of transcript); United States v. Homer, 545 F.2d 864,
868 (3d Cir. 1976) (finding no prejudice when questionable
comments regarding sending a message to the public and other
corrupt officials constituted two paragraphs in 60 pages of
closing argument). Thus, in the context of two days of closing
arguments – let alone a 10-week trial – the AUSA’s mistake
was relatively fleeting.
Second, the District Court effectively cured any effect
of the brief misstatement and hand gesture. Moments after the
AUSA pointed at Northington, the District Court reminded the
jury that Northington was not charged in the Coleman family
murders. A jury is presumed to follow a court’s instruction to
disregard inadmissible evidence inadvertently presented to it,
pointed at Northington and, without using Northington’s name,
repeated the phrase[: ‘and you killed them.’”]).)
32
“unless there is an ‘overwhelming probability’ that the jury
will be unable to follow the court’s instructions, and a strong
likelihood that the effect of the evidence would be
‘devastating’ to the defendant.” Greer v. Miller, 483 U.S. 756,
766 n.8 (1987) (citation omitted). In addition to the District
Court’s specific and immediate instructions, the Court also
instructed the jury at the close of the case that the comments of
counsel, such as closing arguments, are not evidence.
And third, the jury heard overwhelming evidence in
support of the government’s racketeering conspiracy count and
two murder counts against Northington, including extensive
firsthand evidence of Northington’s membership in the KSO
and his participation in the murders of Barry Parker and Tybius
Flowers.
In short, the government’s error was harmless, and the
denial of Northington’s motion for a mistrial was no abuse of
discretion.
E. The District Court properly admitted
evidence seized from Northington’s residence.
Northington next argues that the District Court clearly
erred in admitting evidence seized from his residence pursuant
to a search warrant that he contends was inaccurate and
misleading. 24 Before addressing that argument, we describe
24
“We review for clear error a district court’s
determination regarding whether false statements in a warrant
application were made with reckless disregard for the truth. …
[A]fter putting aside any false statements made [knowingly
and deliberately or] with reckless disregard for the truth, we
33
the events that led the police to apply for a warrant to search
Northington’s residence, the contents of that warrant, and the
District Court’s ruling on the admissibility of the evidence
seized pursuant to the warrant.
1. Barry Parker’s murder and the
warrant to search Northington’s
residence
Northington, who lived at 3908 North Franklin Street,
sold crack for the KSO near his home. When rival drug dealer
Barry Parker encroached on his turf, Northington complained
to Kaboni, who told him to “handle [his] business.” (App. at
8849-53, 10846.) The import of that statement in the violent
context of the KSO was clear.
Lamont Lewis, whom Kaboni had recruited to assist
Northington in killing Parker, testified that on February 26,
2003, he and Northington were circling the 3900 block of
North Franklin in Northington’s car, searching for Parker.
When Northington spotted Parker on the corner of Franklin and
Luzerne Streets, he parked his car nearby. Lewis then left the
car, walked up to Parker, and shot Parker three times in the
chest, killing him.
Soon after the killing, Detective Kenneth Rossiter
arrived on the scene and interviewed witnesses. Based on
those interviews, Detective Rossiter prepared a warrant
application and supporting affidavit to search 3908 North
review de novo a district court’s substantial-basis review of a
magistrate judge’s probable cause determination.” United
States v. Desu, 23 F.4th 224, 235 (3d Cir. 2022).
34
Franklin Street. The warrant application sought authorization
to search the premises for evidence of murder, including guns,
ammunition, a black baseball cap, black jackets, black jeans,
and any contraband.
Detective Rossiter’s affidavit contained three key
pieces of information. First, Parker’s mother was walking west
on Luzerne Street toward 7th Street when she saw two men
whom she knew to be Northington and Northington’s younger
brother, Allen, crouching behind a car, while Northington had
a gun in his hand. Second, when the victim’s mother heard
gunshots, she walked toward the scene of the shooting and
observed the Northington brothers run into 3908 North
Franklin Street. She told officers what she had seen, and they
checked the premises for armed men. 25 And third, the victim’s
nephew, E.G., reported that, at the time of the shooting, he was
standing with Parker on the corner of Franklin and Luzerne
Streets when a black man wearing a black leather jacket, black
jeans, and a black baseball cap approached Parker and shot him
three times in the chest. E.G. reported that the shooter then
fled south on Franklin Street.
During the search undertaken pursuant to the warrant,
police seized multiple handguns, ammunition, cocaine, and
drug paraphernalia from Northington’s house.
2. Northington’s suppression motion
Northington filed a motion to suppress the seized
evidence, asserting that the police filed a misleading warrant
25
A SWAT unit secured the apartment until a search
warrant was obtained.
35
application in violation of Franks v. Delaware, 438 U.S. 154(1978). He made two arguments before the District Court in
support of his motion, both of which he raises again on appeal.
First, he notes that, in E.G.’s statement to the police, which was
given shortly after the shooting, E.G. reported that the shooter
“took off running down Luzerne Street toward 8th Street,” as
opposed to fleeing south on Franklin Street, as Detective
Rossiter’s affidavit stated. (Northington Br. at 66-67 (quoting
Supp. App. at 147).) Northington says that Detective Rossiter
misstated E.G.’s observation to obscure the fact that the
shooter was actually running away from, and not toward, 3908
North Franklin Street. Second, Northington argues that
Detective Rossiter’s affidavit omitted that E.G. knew
Northington but “indicated clearly in his statement that
[Northington] was not the shooter of Barry Parker.”
(Northington Br. at 67.) According to Northington, those
omissions deceived the magistrate who issued the warrant
“into believing that [Northington] or his brother [was] the
gunmen,” creating the illusion of probable cause. (Northington
Br. at 67.)
The District Court rejected those arguments. While
acknowledging that Detective Rossiter’s affidavit misreported
E.G.’s statement as to the direction in which the shooter ran,
the Court concluded that Northington had not introduced any
evidence to suggest that the error was knowing or reckless, as
opposed to merely “inadvertent.” (Supp. App. at 166.) 26 In
any event, the Court observed that the mistake was immaterial
because the victim’s mother’s account was also included in the
warrant application, and she reported having seen Northington
26
Supp. App. Refers to the Supplemental Appendix of
Appellee, United States of America.
36
enter his Franklin Street residence after the shooting. (Supp.
App. at 166.)
As to Northington’s claim that Detective Rossiter
deceived the magistrate by omitting the fact that E.G. knew
Northington but did not recognize the shooter, the District
Court explained that this claim “misreads” the warrant
application because “[a]t no point does the warrant application
identify [Northington] as the shooter.” (Supp. App. at 166.)
Instead, “the warrant implicates [Northington] in the murder
due to … [the] positive identification [by the victim’s mother
of Northington] as having been at the scene of the murder, with
a gun in his hand, and then placing him inside 3908 North
Franklin after the shooting.” (Supp. App. at 166-67.)
To succeed on a Franks claim, a defendant must prove
by a preponderance of the evidence that the affiant knowingly
and deliberately, or with reckless disregard for the truth,
included a falsehood or omission in the warrant application,
and he must prove that the resulting false statement was
material to the probable cause determination. Franks, 438 U.S.
at 171-72. In assessing materiality, the court excises the
erroneous information, inserts the missing information, and
then determines whether the “reformulated affidavit
established probable cause.” United States v. Yusuf, 461 F.3d
374, 383-84, 390 (3d Cir. 2006).
Northington fails on both prongs of the Franks test.
First, as the District Court correctly observed, Northington has
not pointed to any evidence to suggest that the affidavit in
question was knowingly or recklessly false. And second, any
omissions or misrepresentations were indeed immaterial to the
probable cause determination. While it seems that E.G. did not
37
recognize the shooter, the warrant application did not identify
Northington as the shooter. Additionally, even if E.G.’s
observations concerning the identity of the shooter and the
direction in which he ran were omitted from Detective
Rossiter’s affidavit, the affidavit would nonetheless establish
probable cause because it also contained the report of the
victim’s mother, who identified Northington as having been at
the scene of the murder with a gun in his hand and as having
entered his residence at 3908 North Franklin soon thereafter.
Accordingly, we conclude that the District Court did not
clearly err in finding that any misstatements or omissions in
Detective Rossiter’s affidavit were inadvertent, and that, even
excluding E.G.’s account, the affidavit contained a sufficient
basis for the magistrate’s probable cause determination.
Before trial, the government gave notice to Northington
of its intention to introduce evidence found during his 2004
arrest on a federal warrant, asserting that it was admissible
intrinsic evidence of the existence of the charged RICO
conspiracy. The government also asserted that, even if the
District Court deemed the evidence to be extrinsic of bad acts
beyond the conspiracy evidence, it was nevertheless
admissible under Federal Rule of Evidence 404(b). 27
27
“We review the District Court’s decision to admit
evidence under Rule 404(b) for an abuse of discretion, which
‘may be reversed only when clearly contrary to reason and not
38
(Northington Supp. App. at 18 (citing Fed. R. Evid.
404(b)(2)).) The District Court admitted the evidence over
Northington’s objection.
Here is the backstory on that earlier arrest. On
September 8, 2004, while Northington was driving with his
cousin in a rental vehicle approximately two miles from the
Coleman residence, he was pulled over by Philadelphia police
officers. When the police asked him to identify himself,
Northington, who was “dressed in Muslim garb,” provided
“one of his multiple false names.” (Northington Br. at 18.)
One of the officers recognized Northington, however, and he
was arrested on a federal warrant. The officers subsequently
found a loaded handgun, a full can of gasoline, and a bag of
latex gloves in the car.
The government argued in a motion in limine that the
circumstances of Northington’s arrest were intrinsic evidence
of his involvement in the charged RICO conspiracy. 28
justified by the evidence.’” United States v. Butch, 256 F.3d
171, 175 (3d Cir. 2001) (internal quotation marks omitted).
28
The indictment alleged that Northington had been a
member of the KSO since 1997, and that the KSO used
violence and intimidation to maintain its drug trafficking
operations and to intimidate or retaliate against potential
witnesses. The indictment charged that KSO members
committed murders to further the aims of the KSO, and that
Northington participated in two such murders: the murder of
rival drug dealer Barry Parker in 2003, and the murder of
Tybius Flowers in 2004, to prevent Flowers from testifying in
Kaboni’s state trial for the murder of Kenneth Lassiter.
39
Specifically, the government argued that the circumstances of
Northington’s arrest would allow the jury to conclude that
Northington intended to firebomb the Coleman home, but that
his arrest prevented him from doing so. In support of that
theory, the government sought to also introduce a recording of
a June 4, 2004, phone conversation between Kidada and
Kaboni, in which Kaboni ordered Kidada in coded language to
instruct Northington that he “better go ahead” and “to get on
that.” 29 (Northington Supp. App. at 40-41.)
Northington filed a motion to preclude the evidence on
the grounds that he was not charged with the Coleman family
murders, that the government’s theory was speculative, and
that the evidence would be unfairly prejudicial to him.
The District Court admitted the evidence, reasoning that
the circumstances of Northington’s arrest tended to directly
prove the charged RICO conspiracy and so the evidence was
intrinsic to the charge. The Court further determined that, even
if the evidence was not intrinsic to the charged conspiracy, it
was admissible under Rule 404(b) because it showed the
relationship between the co-defendants, the nature and
background of the conspiracy, the motive and intent for
retaliating against government witnesses, and a specific
Northington was not charged with the firebombing and murder
of the Coleman family that ultimately took place a month after
his 2004 arrest.
29
Immediately before speaking with Kidada, Kaboni
was speaking with KSO affiliate Raymond Wilmore, to whom
Kaboni stated, “Oh, well tell [Kidada] he better go ahead man.”
(Northington Supp. App. at 40.)
40
method of retaliation. Finally, the Court conducted a Rule 403
analysis. It determined that the evidence was highly probative
of the existence of, and Northington’s participation in, a RICO
conspiracy, and that the probative value of the evidence was
not substantially outweighed by a risk of unfair prejudice.
While “[e]vidence of any other crime, wrong, or act is
not admissible to prove a person’s character in order to show
that on a particular occasion the person acted in accordance
with [his] character[,]” Fed. R. Evid. 404(b)(1), that rule “does
not apply to evidence of uncharged offenses committed by a
defendant when those acts are intrinsic to the proof of the
charged offense.” United States v. Gibbs, 190 F.3d 188, 217
(3d Cir. 1999). Intrinsic evidence is evidence that directly
proves the charged offense, or that constitutes “uncharged acts
performed contemporaneously with the charged crime … if
they facilitate the commission of the charged crime.” United
States v. Green, 617 F.3d 233, 248-49 (3d Cir. 2010) (internal
quotation marks omitted).
Northington argues that the evidence relating to his
September 2004 arrest is not intrinsic to the case against him
because the government did not charge him with any acts
relating to the Coleman killings. That argument is unavailing
because, as the District Court observed, the indictment charged
that the KSO used acts of intimidation and retaliation to
maintain and further the objectives of the KSO, that murders
were committed for this purpose, and that Northington
committed two such murders. Accordingly, evidence that
Northington endeavored to firebomb the Coleman home would
be highly probative of his participation in the charged RICO
conspiracy, as it would show unity of purpose and his
commitment to the KSO’s objectives.
41
Northington’s other argument, that the evidence was not
capable of supporting a finding that he attempted to firebomb
the Coleman residence, is more compelling. First, Northington
points out that the June 20, 2004 phone call took place three
months before his arrest, and yet the government cannot
account for the delay between Kaboni’s supposed order and
when Northington undertook to carry out the order. Second,
Northington contends he was not implicated in the June 20,
2004 recorded phone call. During that call, Kaboni told Kidada
that an individual called “Money Sign” had “better get on that.”
(Northington App. at 40.) But neither the indictments nor any
of the discovery materials attribute the moniker “Money Sign”
to Northington. Moreover, the lead investigator testified
before the federal grand jury and later at trial that he did not
know who “Money Sign” was. Third and relatedly,
Northington notes that Kaboni never explicitly explained what
“Money Sign” was supposed to do. (Northington Br. at 27
(“Was [Money Sign] supposed to collect a debt? Sell Drugs?
Pay a visit to the prison …. There exist an incalculable number
of possibilities.”).) Finally, Northington objects to the
inference drawn by the government because he was arrested
approximately two miles from the Coleman residence, was
traveling in the opposite direction of that house, and was closer
to his own home than to the Colemans’.
In further support of his argument that the government’s
theory “was unadulterated speculation,” Northington argues
that “[i]f the Government legitimately believed that [he] had
taken substantial steps to firebomb the Coleman family,”
surely his acts on September 8, 2004 would have been listed as
predicate acts in the 140-paragraph RICO conspiracy count
and as a separate count charging him with attempted murder.
42
(Northington Br. at 26, 32.) Northington also notes that the
government’s witness list included Raymond Wilmore,
through whom Kaboni supposedly gave Kidada the go-ahead
to order the firebombing, but the government “opted not to call
Willmore as a witness to either confirm or deny that ‘Money
Sign’ was [Northington].” (Northington Br. at 30.)
As the above demonstrates, Northington has reasonable
grounds for arguing that the evidence involving his arrest, and
the phone call made three months earlier, fail to support a
finding that he attempted to firebomb the Coleman family
home. Of course, it is not for us to decide whether the evidence
establishes that Northington was en route to murder the
Colemans. Rather, the question is whether the District Court
abused its discretion in admitting the evidence.
The government’s theory, although circumstantial and
vulnerable to critique, is plausible. As the District Court
observed, the police arrested Northington in the vicinity of the
Coleman residence, he gave a false name to the police, and he
possessed materials to carry out a firebombing. And, although
there is scant evidence directly linking Northington with the
moniker “Money Sign,” he did go by a similar alias: “Dollar
Bill.” The record indicates that Kaboni was adamant that
“Money Sign” fulfill an unknown order, and considering
Kaboni’s preoccupation with retribution against Coleman, a
jury could reasonably conclude that the unspoken order was to
go through with the Coleman killings. Finally, the KSO
ultimately killed the Coleman family members by throwing a
lit can of gasoline into their home, so a jury could conclude
that, under the circumstances, it was no coincidence that
Northington possessed materials that would enable him, a well-
43
known KSO member, to carry out the killing at Kaboni’s
behest.
Based on those proffered facts, a jury could reasonably
conclude that the evidence relating to Northington’s arrest
showed that he intended to firebomb the Coleman home. We
also decline to disturb the District Court’s ruling that the
probative value of the evidence was not substantially
outweighed by the risk of unfair prejudice. We generally will
not reverse a district court’s Rule 403 decision unless the
“analysis [undertaken] and resulting conclusion” is “arbitrary
or irrational.” United States v. Kellogg, 510 F.3d 188, 197 (3d
Cir. 2007); see also id. (noting that if “judicial self-restraint is
ever desirable, it is when a Rule 403 analysis of a trial court is
reviewed by an appellate tribunal” (citation and internal
quotation marks omitted)).
Rule 403 guards against “unfair” prejudice, that is,
prejudice “based on something other than [the evidence’s]
persuasive weight.” United States v. Bergrin, 682 F.3d 261,
279-80 (3d Cir. 2012) (citation omitted). Unfair prejudice
“does not simply mean damage to the opponent’s cause” but is
“prejudice of the sort which clouds impartial scrutiny and
reasoned evaluation of the facts, which inhibits neutral
application of principles of law to the facts as found.” United
States v. Starnes, 583 F.3d 196, 215 (3d Cir. 2009) (quoting
Goodman v. Pa. Tpk. Comm’n, 293 F.3d 655, 670 (3d Cir.
2002)).
It was not arbitrary or irrational for the District Court to
conclude that the evidence was not unfairly prejudicial. While
the government argued at trial that the evidence relating to
Northington’s arrest supported an inference that he was willing
44
to carry out the firebombing, and that he was therefore acting
in furtherance of a conspiratorial objective, Northington was
not charged with the Coleman murders. Additionally,
Northington strenuously opposed the government’s view of the
evidence in his closing argument, attacking each link in the
government’s chain of logic. The jury therefore had the
information it needed to sift through the evidence and resolve
whether or not to draw the inference that Northington
attempted to carry out the firebombing.
Finally, in light of the credible and extensive testimony
implicating Northington in the murders of Barry Parker and
Tybius Flowers, we conclude there was little risk that the
evidence relating to Northington’s arrest would cause the jury
to convict Northington for those murders on an improper
emotional basis rather than on the evidence presented at trial.
In sum, because we agree with the District Court that a
jury could reasonably conclude that the evidence relating to
Northington’s arrest would allow the jury to conclude it was
more likely than not that Northington intended to firebomb the
Coleman home, 30 and because the Court’s Rule 403 ruling was
30
When dealing with issues of relevance based on
conditional facts, Federal Rule of Evidence 104(b) requires
courts to examine the proffered evidence and determine
whether a jury could reasonably find the conditional fact by a
preponderance of the evidence. Huddleston v. United States,
485 U.S. 681, 689-90 (1988) (citing Fed. R. Evid. 104(b)).
“Evidence is reliable for purposes of Rule 404(b) ‘unless it is
so preposterous that it could not be believed by a rational and
properly instructed juror.’” Bergrin, 682 F.3d at 279 (quoting
United States v. Siegel, 536 F.3d 306, 319 (4th Cir. 2008), in
45
not arbitrary or irrational, we conclude that the District Court
did not abuse its discretion in admitting the evidence. Because
we hold that the admitted evidence was intrinsic to proving
Northington’s involvement in the RICO conspiracy, we do not
reach the District Court’s ruling that the evidence was also
admissible under Rule 404(b).
Northington alone challenges the government’s
peremptory strike of Juror #364, whom Northington contends
was struck because of her race. Juror #364 identified herself
as a 46-year-old African-American woman who has a 26-year-
old son, and who works as a business analyst. In response to a
juror questionnaire, she provided answers that raised concern
for the government. First, she stated that her residence was
burned in a fire. Second, she reported that, five years earlier,
her son was shot three times while sitting in his car, which
the form of a parenthetical). As a reminder, the evidence
relating to Northington’s arrest included that he was near the
Coleman family home, that he had a loaded handgun, a full can
of gasoline, and a bag of latex gloves in the car, and that
Kaboni had ordered a person called “Money Sign” – similar to
Northington’s alias, “Dollar Bill” – to “go ahead” and “get on
that.”
31
A district court’s determination of whether a
prosecutor harbored discriminatory intent in striking a juror is
a “pure issue of fact” which should be given “great deference”
on review, and the clearly erroneous standard applies.
Hernandez v. New York, 500 U.S. 352, 364-66 (1991).
46
made her emotional and caused her to start crying. Third, she
stated that she had maintained a relationship with a man who
had been charged with assault, and that she had visited him in
jail. And fourth, she indicated that she was opposed to the
death penalty.
The government exercised a peremptory strike to
remove Juror #364 from the jury, and in response Northington
challenged the government’s strike as being race-based. After
hearing the government’s explanations for striking the juror,
the District Court rejected Northington’s argument. The Court
explained,
Based upon all the circumstances, including the
fact that, prior to this strike, an African-
American juror had already been empaneled, and
taking into account the prosecutor’s demeanor
and credibility, we are satisfied that the
Government’s reason for striking the juror was
not pretextual, and not in any way motivated by
a discriminatory intent.
(App. at 159, 161.)
In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme
Court held that “the State denies a black defendant equal
protection of the laws when it puts him on trial before a jury
from which members of his race have been purposefully
excluded.” Id. at 85. A district court’s assessment of motions
made under Batson involves a three-step process. The
defendant must first establish a prima facie case of race-based
discrimination in the exercise of a peremptory strike.
Hernandez v. New York, 500 U.S. 352, 358 (1991). Among the
47
factors the trial court may consider at this first step of the
Batson inquiry are the number of racial group members in the
panel, the nature of the crime, the race of the defendant and the
victim, a pattern of strikes against racial group members, and
the prosecution’s questions and statements during the voir dire.
United States v. Clemons, 843 F.2d 741, 746-48 (3d Cir. 1988).
Then, if the prima facie case has been made, “the burden
shifts to the prosecutor to articulate a race-neutral explanation
for striking the jurors in question.” Id. at 358-59. This step
“does not demand an explanation that is persuasive, or even
plausible,” as the issue is not “the reasonableness of the
asserted nonracial motive,” but rather “the genuineness of the
motive.” Purkett v. Elem, 514 U.S. 765, 768-69 (1995).
Finally, if the government presents a race-neutral
explanation, the defendant must prove purposeful
discrimination by showing that the proffered explanation is
pretextual. Hernandez, 500 U.S. at 359. “[T]he ultimate
burden of persuasion regarding racial motivation rests with,
and never shifts from, the opponent of the strike.” Purkett, 514
U.S. at 768.
Here, Northington’s only support for his prima facie
case is his assertion that the “Government exercised [its]
peremptory challenge for no apparent justifiable reason[, and]
had exercised at least two other peremptory challenges on
qualified African-American jurors.” (Northington Br. at 62.)
The government’s two strikes against African-Americans fell
far short of any pattern, and indeed, the defense itself struck
two African-Americans from the jury.
As the government explains,
48
Of the approximately 145 [potential jurors] who
had at that point been summoned to court to be
interviewed (up to and including Juror #364), all
but 43 were excused for cause or hardship. Of
those remaining 43 jurors, nine were seated, 12
were excused by the government, and 22 were
excused by the defense. There were six African-
Americans in the remaining group of 43, two of
whom were struck by the defense.
(Answering Br. at 135.)
Furthermore, two of the 12 jurors seated on the jury
were African-American, as was the first alternate juror. Nor
has Northington demonstrated that any other factor
traditionally considered at the first step of the Batson inquiry
supports that conclusion that peremptory challenges were
exercised based on the race of potential jurors. Because
Northington has failed to make a prima facie case, we will
affirm the District Court’s ruling. 32
32
Although we do not need to reach the second and third
steps of the Batson inquiry, to remove any doubt of
discriminatory taint, we note that Northington’s contention that
there was no race-neutral reason to strike Juror #364 is flatly
wrong. Indeed, any one of the four race-neutral concerns
identified by the government as to Juror #364, such as her
opposition to the death penalty, or that her son, like Tybius
Flowers, was shot while sitting in his car, would be sufficient
to defeat Northington’s Batson claim.
49
Merritt argues that the District Court constructively
amended the indictment in violation of the Fifth Amendment
because, whereas the indictment alleged that the KSO was the
RICO enterprise at issue and that Merritt was a KSO member,
the District Court instructed the jury that it could convict
Merritt of RICO conspiracy even if it found that Merritt was
not a member of the KSO. We begin by discussing the
allegations contained in the indictment that pertain to Merritt’s
alleged participation in the RICO conspiracy, the
government’s evidence and argument at trial, the District
Court’s jury instruction on the crime of RICO conspiracy, and
the jury’s subsequent questions pertaining to the conspiracy.
The first count of the indictment, which alleged RICO
conspiracy, accused Merritt of having been a member of a
racketeering organization. According to Count One, “[t]he
defendants and others were members of a regional criminal
organization. … This criminal organization was the Kaboni
Savage Organization (‘KSO’).” (App. at 450.) In a subsection
titled “The Defendants and Their Roles in the Enterprise,”
Count One explained Merritt’s alleged role in the KSO:
The defendants’ roles in the enterprise are as
follows … Defendant ROBERT MERRITT,
33
“We exercise plenary review in determining whether
there was a constructive amendment of the indictment[.]”
United States v. Daraio, 445 F.3d 253, 259 (3d Cir. 2006).
50
a/k/a “B.J.,” a/k/a “Bishop,” was a drug
distributor and enforcer for the KSO. He
participated in murders, murder conspiracy,
arson, the distribution of controlled substances,
carrying firearms during violent crimes, carrying
a firearm during a drug trafficking crime, witness
tampering, and witness retaliation.
(App. at 453.)
At trial, the government argued that Merritt, as a
member of the KSO, committed the specific crimes
enumerated in Count One of the Indictment. In its opening
statement, for example, the government repeatedly asserted
that Merritt “threw those gas cans in the living room.” (App.
at 3386, 3394-95.) The government also reminded the jury that
Merritt committed the alleged crimes as a KSO member:
Members of the jury, the evidence in this case
will show that the defendants Kaboni Savage,
Steven Northington, Kidada Savage and Robert
Merritt agreed to participate in the affairs of a
racketeering enterprise involving drugs, money
laundering, arson, witness tampering and
murder.
(App. at 3479.)
While conceding that Merritt “may have been more on
the periphery” of the KSO, the government argued in its
summation that Merritt, like Kaboni, Kidada and Northington,
knew the purpose of the conspiracy, and by selling drugs under
the protection of Lamont Lewis, he, too, became a member of
51
the conspiracy knowing full well of its purpose. Finally, the
government also contended that Merritt and his co-defendants
murdered the Coleman family “for the purpose of maintaining
or increasing their position in the enterprise.” (App. at 15076
(emphasis added).)
Before the charging conference, Merritt filed proposed
jury instructions that rejected the language addressing RICO
conspiracy contained in our Court’s model jury instructions.
According to Merritt, the model language was inapplicable
“[i]n a case [such as this] where the indictment alleges the
actual, ten year existence of a specific, ongoing RICO
enterprise[.]” (Merritt Supp. App. at 122.) Specifically,
Merritt objected to the following portions of the model jury
instruction for RICO conspiracy:
One important difference is that, unlike the
requirements to find (name) guilty of the RICO
offense charged in Count (No.), in order to find
(name) guilty of the RICO conspiracy charged in
Count (No.) the government is not required to
prove that the alleged enterprise actually existed,
or that the enterprise actually engaged in or its
activities actually affected interstate or foreign
commerce.
Similarly, unlike the requirements to find (name)
guilty of the RICO offense, in order to find
(name) guilty of the RICO conspiracy charged in
Count (No.) the government is not required to
prove that (name) was actually employed by or
associated with the enterprise, or that (name)
52
agreed to be employed by or to be associated
with the enterprise.
Nor does the RICO conspiracy charge require the
government to prove that (name) personally
participated in the operation or management of
the enterprise, or agreed to personally participate
in the operation or management of the enterprise.
Rather, you may find (name) guilty of the RICO
conspiracy offense if the evidence establishes
that (name) knowingly agreed to facilitate or
further a scheme which, if completed, would
constitute a RICO violation involving at least
one other conspirator who would be employed
by or associated with the enterprise and who
would participate in the operation or
management of the enterprise.
(Merritt Supp. App. at 122-24 (quoting in part the Third Circuit
Model Criminal Jury Instructions 6.18.1962D RICO
Conspiracy-Elements of the Offense (18 U.S.C. §1962(d))).)
In opposing the model instruction, Merritt said it was
“seemingly designed to accommodate a situation where
individuals knowingly conspire to do something which, if
successful, would intentionally promote the establishment of
an as yet non-existent enterprise, the interests of which the
conspirators then intend to conduct through a pattern of
racketeering activity.” (Merritt Supp. App. at 124.) In a
second filing, Merritt proposed a RICO conspiracy charge that
required the jury to first find as proven against Merritt all of
the indictment’s factual allegations pertaining to RICO
53
conspiracy before finding him guilty of RICO conspiracy.
Merritt now explains that he objected to the model language
and proposed his own jury instruction “omit[ting] the
objectionable language” because the model language relieved
the government of having to prove “the very facts that it had
alleged in the Indictment and that it had spent three months
trying to prove.” (Merritt Opening Br. at 44-45.)
The District Court gave a RICO conspiracy instruction
that reflected our Court’s model instruction. In particular, the
Court told the jury that the government did not have to prove
that the racketeering enterprise existed or that any defendant
was a member of that enterprise:
[T]he government is not required to prove that
the alleged enterprise was actually established,
that the defendant was actually employed by or
associated with the enterprise, that the defendant
was actually engaged in, or its activities actually
affected, interstate or foreign commerce, or that
the defendant actually committed any
racketeering act.
(App. at 15139.)
Merritt renewed his objection to that instruction at the
conclusion of thedistrict court’s charge. He argues that it
effectively amended the indictment.
“A constructive amendment to the indictment
constitutes ‘a per se violation of the fifth amendment’s grand
jury clause’” because it deprives the defendant of his right to
be indicted by a grand jury. United States v. Syme, 276 F.3d
54131, 148, 154 (3d Cir. 2002) (citation omitted). “An
indictment is constructively amended when, in the absence of
a formal amendment, the evidence and jury instructions at trial
modify essential terms of the charged offense in such a way
that there is substantial likelihood that the jury may have
convicted the defendant for an offense differing from the
offense the indictment returned by the grand jury actually
charged.” United States v. Daraio, 445 F.3d 253, 259-60 (3d
Cir. 2006). Such a modification impermissibly “amend[s] the
indictment by broadening the possible bases for conviction
from that which appeared in the indictment.” United States v.
Lee, 359 F.3d 194, 208 (3d Cir. 2004).
“The key inquiry is whether the defendant was
convicted of the same conduct for which he was indicted.”
Daraio, 445 F.3d at 260 (citation omitted). In other words,
even when the district court instructs the jury on the very same
statute that the indictment charged the defendant to have
violated, the district court constructively amends the
indictment if it instructs the jury that it can convict the
defendant based on facts not alleged in the indictment.
The Supreme Court’s decision in Stirone v. United
States, 361 U.S. 212 (1960), illustrates the requirement that the
factual basis for a conviction cannot exceed the four corners of
the indictment. There, the indictment charged Stirone with a
Hobbs Act violation because he used his influential union
position and extortion to unlawfully interfere with the
interstate importation of sand. Id. at 213-14. Over Stirone’s
objection, the district court allowed the government to offer
evidence “of an effect on interstate commerce not only in sand
… but also in interference with steel shipments ….” Id. at 214.
The Court held that, even though the government indicted
55
Stirone with the “two essential elements of a Hobbs Act crime:
interference with commerce, and extortion[,]” “when only one
particular kind of commerce [i.e., sand,] is charged to have
been burdened[,] a conviction must rest on that charge and not
another, even though it be assumed that under an indictment
drawn in general terms a conviction might rest upon a showing
that commerce of one kind or another had been burdened.” Id.
at 218.
Applying Stirone, we similarly focused on the
indictment’s factual allegations in United States v. McKee, 506
F.3d 225 (3d Cir. 2007). In that case, the indictment charged
the defendants with attempting to evade taxes by “preparing,
signing, and causing the filing of false and fraudulent federal
employment tax returns.” Id. at 230. The district court,
however, instructed the jury that the government could prove
the charge by showing the defendant falsified books and
records. Id. at 229. In vacating the defendants’ convictions,
we explained that “the problem here is that the jury instructions
informed the jury that the Defendants could be convicted on
the basis of conduct that was not charged in the indictment, of
which they had no notice.” Id. at 231. And even if the jury did
in fact convict the defendants on the facts alleged in the
indictment, “it is nearly impossible for a defendant to
demonstrate that his/her conviction was based on particular
evidence or a particular theory.” Id. at 232.
We agree with Merritt that the theory that permeates the
indictment and the government’s trial arguments is that he was
a KSO member and thus a member of the RICO enterprise. We
also agree that the jury likely believed that Merritt was not a
56
KSO member. 34 We part ways with Merritt, however, as to his
assertion that his conviction cannot stand because “[t]he
indictment never alleged that Merritt was a ‘non-member’ of
the KSO who nevertheless conspired to further its criminal
aims.” (Merritt Opening Br. at 46.) In addition to charging
Merritt with membership in a RICO organization under 18
U.S.C. § 1962(c), the indictment also charged him with RICO
conspiracy under § 1962(d). 35 That the indictment charged
Merritt with both crimes did not oblige the government to
34
It is likely that the jury believed that Merritt was not
a KSO member, but that he nonetheless participated in the
conspiracy as to the firebombing. The jury found Merritt guilty
only of conspiracy but declined to convict him for the RICO
murder charges. Moreover, during deliberations, the jury
specifically asked the District Court whether membership in a
racketeering enterprise is a prerequisite for a RICO conspiracy
conviction.
35
Section 1962(c) proscribes membership in a RICO
enterprise:
It shall be unlawful for any person employed by
or associated with any enterprise engaged in, or
the activities of which affect, interstate or foreign
commerce, to conduct or participate, directly or
indirectly, in the conduct of such enterprise’s
affairs through a pattern of racketeering activity
or collection of unlawful debt.
Section 1962(d), in contrast, provides that “It shall be unlawful
for any person to conspire to violate … subsection … (c) of
this section.”
57
prove any, let alone every, alleged fact pertaining to the
§ 1962(c) charge as a prerequisite to establishing that Merritt
joined a RICO conspiracy under § 1962(d).
Here, even though the jury acquitted Merritt of the six
murders in aid of racketeering and of one charge of conspiracy
to commit murder in aid of racketeering, the jury explicitly
found beyond a reasonable doubt that Merritt at least attempted
to aid in the firebombing of the Coleman family. 36 That
suffices for liability under the RICO conspiracy provision
because a RICO conspiracy charge requires only proof of an
agreement to assist the RICO enterprise in its criminal
objectives. See Salinas v. United States, 522 U.S. 52, 64
(1997) (holding for the purpose of the RICO conspiracy
36
The jury found that Merritt:
knowingly and intentionally murdered,
knowingly aided and abetted, and willfully
caused the murder of, and aided, agreed or
attempted to aid, and solicited another to
commit, the murders of Marcella Coleman
(sentencing factor #9), Tameka Nash (sentencing
factor #10), Sean Anthony Rodriguez
(sentencing factor #11), Tajh Porchea
(sentencing factor #12), Khadijah Nash
(sentencing factor #13), and Damir Jenkins
(sentencing factor #14), human beings, all in
violation of the laws of the Commonwealth of
Pennsylvania, that is, Title 18, Pennsylvania
Consolidated Statutes Annotated, Sections
2502(a) and 306.
(App. at 668.)
58
provision that, “[i]f conspirators have a plan which calls for
some conspirators to perpetrate the crime and others to provide
support, the supporters are as guilty as the perpetrators”).
The circumstances here, then, are distinguishable from
those in Stirone and McKee. In those cases, the trial courts’
instructions authorized the jury to return a guilty verdict based
on conduct different than that set forth in the indictment,
whereas here, the jury charge did not expand the factual basis
on which Merritt could be convicted. Although the
government alleged more facts in the indictment than it proved
to the jury’s satisfaction at trial, the indictment alleged
Merritt’s involvement in the RICO conspiracy, and Merritt has
not identified any reason why we should doubt that the jury
convicted Merritt for RICO conspiracy based on facts alleged
in the indictment, namely, that he “agreed to participate in the
affairs of a racketeering enterprise involving … arson.” (App.
at 3479 (Count One of the Indictment).)
Merritt argues that, because the jury did not make the
specific finding that Merritt’s RICO conspiracy conviction was
“based on” a RICO qualifying activity for which the maximum
penalty is life imprisonment, his sentence for life imprisonment
violated Apprendi v. New Jersey, 530 U.S. 466, 490 (2000),
which requires that any fact that increases a defendant’s
sentence beyond the default statutory maximum must be found
59
by a jury. 37 The government responds that the jury verdict
sheet did connect the RICO conspiracy conviction with the
Coleman murders, which were RICO qualifying crimes, and
that, even if the status of the murders as RICO qualifying
activities could have been made more explicit to the jury, the
phrasing of the verdict sheet was certainly not plain error.
Merritt admits that he did not raise this issue below.
Accordingly, the District Court’s sentence must stand unless
Merritt can establish plain error. United States v. Olano, 507
U.S. 725, 730 (1993). To do so, he must prove that: (1) the
Court erred; (2) the error was obvious under the law at the time
of review; and (3) the error affected substantial rights, that is,
the error affected the outcome of the proceedings. Johnson v.
United States, 520 U.S. 461, 467 (1997). If all three elements
are established, we may, but need not, exercise our discretion
to award relief. Id. That discretion should be exercised only
in cases where the defendant is “actually innocent” or the error
“seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.” Olano, 507 U.S. at 736-37.
37
The Supreme Court explained that “under the Due
Process Clause of the Fifth Amendment and the notice and jury
trial guarantees of the Sixth Amendment, any fact (other than
prior conviction) that increases the maximum penalty for a
crime must be charged in an indictment, submitted to a jury,
and proven beyond a reasonable doubt. The Fourteenth
Amendment commands the same answer in [a] case involving
a state statute.” Apprendi, 530 U.S. at 476 (internal citation
and quotation marks omitted).
60
To secure a RICO conspiracy conviction, the
government must prove, among other things, that the defendant
engaged in “a pattern of racketeering activity,”
18 U.S.C. § 1962, which requires at least two acts in
furtherance of the RICO conspiracy. United States v. Fattah,
914 F.3d 112, 163 (3d Cir. 2019). The maximum penalty for
violating the RICO statute is 20 years in prison unless “the
violation is based on a racketeering activity for which the
maximum penalty includes life imprisonment.”
18 U.S.C. § 1963(a) (emphasis added).
The jury found Merritt guilty of engaging in a RICO
conspiracy. For each defendant, the jury was also “required to
unanimously find, beyond a reasonable doubt” whether the
government had “proven” or “not proven” that he or she
committed other crimes. (App. at 662-63.) The other crimes
were listed as “Special Sentencing Factors,” and included drug
distribution conspiracy, the individual murders, the Coleman
family murders, and witness retaliation, as defined by federal
or Pennsylvania law. (App. at 662-669.)
Under special sentencing factors #9 through #14, the
jury found as “proven” Merritt’s involvement in the Coleman
family murders. Murder was defined under Pennsylvania law,
and the verdict form definition read as follows:
On or about October 9, 2004, in Philadelphia, in
the Eastern District of Pennsylvania, the
defendants KABONI SAVAGE, ROBERT
MERRITT, and KIDADA SAVAGE, knowingly
and intentionally murdered, knowingly aided
and abetted and willfully caused the murder of
and aided, agreed or attempted to aid, and
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solicited another to commit, the murders of [the
Coleman Family], all in violation of the laws of
the Commonwealth of Pennsylvania, that is,
Title 18 Pennsylvania Consolidated Statutes
Annotated, Sections 2502(a) and 306.
(App. at 668 (emphasis added).)
Merritt asserts that the jury instructions erroneously
failed to require that the jury find that his RICO conspiracy
violation was “based on” a RICO qualifying activity. In
Merritt’s view, because the verdict sheet did not explicitly state
that special sentencing factors #9 through #14 were RICO
qualifying activities, and notwithstanding the jury’s finding
under those factors that, at a minimum, Merritt knowingly
agreed to aid or attempt to commit the Coleman murders, it is
possible that the jury may have premised Merritt’s RICO
conspiracy conviction on RICO qualifying activities other than
murder. 38 In support, Merritt points out that the jury did not
38
Merritt argues that the Special Sentencing Factors are
deficient for two additional reasons. First, he says that the
language of the verdict sheet contains a “legal flaw” that
“reinforce[s] the unreliability of the jury’s verdict,” in that “it
told jurors that their finding had to be beyond a reasonable
doubt either way, proven or not proven.” (Merritt Opening Br.
at 18 n.5 (citing the following statement in the verdict sheet:
“We, the jury, unanimously find that special sentencing factors
#9 through #14, as to defendant Robert Merritt, are: __ Proven
___Not Proven”).) Second, Merritt objects that special
sentencing factors #9 through #14 permitted the jury to find
first-degree murder in violation of Pennsylvania law without
finding specific intent to kill. (Merritt Opening Br. at 18 n.6.)
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find him guilty of the several counts of RICO murder alleged
against him.
If Merritt is correct that murder was not the predicate
act on which the jury found him guilty of RICO conspiracy,
then his sentence should have been no greater than the twenty-
year statutory maximum. Although the verdict sheet could
have more clearly indicated that the sentencing factors were
crimes on which the RICO conspiracy charge was based, any
error was not obvious and was unlikely to have impacted
Merritt’s sentence. First, the jury verdict form listed the
special sentencing factors as clear sub-parts of the RICO
conspiracy count. Second, the special sentencing factors were
prefaced with the following: “If you have found one or more
Merritt’s first point is immaterial because neither party
disputes that the jury found Sentencing Factor Nos. 9-14
proven beyond a reasonable doubt as to Merritt. As to the
second point, Merritt acknowledges that second-degree murder
also permits a life sentence and does not require a finding of
specific intent. In any event, the District Court did instruct the
jury about the specific intent requirement for first-degree
murder. (See App. at 15172 (“Ladies and gentlemen, under
Pennsylvania law, first degree murder is an intentional killing.
A killing is intentional if it’s committed by lying in wait or by
otherwise willful, deliberate and premeditated means.”));
(App. at 15174 (“[T]o be guilty of aiding and abetting, the
defendant must possess the intent to promote or facilitate the
commission of the crime. In the case of first degree murder,
ladies and gentlemen, the defendant must have specifically
intended that the murder occur in order for the defendant to be
guilty of first degree murder under a theory of accomplice
liability.”)).
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of the defendants guilty as to Count 1, you are also required to
unanimously find, beyond a reasonable doubt, whether those
defendants committed the acts described in the following
special sentencing factors: ….” (App. at 662 (emphasis
added).) Finally, the District Court instructed the jury: “There
are with regard to the conspiracy count a series of sentencing
factors that we ask you to consider.” (App. at 15222.)
Accordingly, it is implausible that the jury understood the
sentencing factors as describing acts unrelated to the RICO
conspiracy. 39
Moreover, Merritt’s argument would require us to credit
his theory that, even though the jury found that he joined the
RICO conspiracy, and even though it found that he participated
in the Coleman family murders, the jury determined that his
assistance in carrying out those murders was not in furtherance
of the conspiracy, and that Merritt did other, unidentified acts
in furtherance of the conspiracy such as, perhaps, selling drugs
on behalf of the KSO, that connected him to the RICO
conspiracy. This argument strains reason, especially
considering that the Coleman murders were the only special
sentencing factors that the jury found proven as to Merritt.
39
Merritt cites Burrage v. United States, 571 U.S. 204(2014), to support his “based on” argument, but that case is
inapposite. Burrage considered a statute that increases a
defendant’s mandatory minimum sentence if the government
proves that death “results from” a narcotics distribution
offense. Id. at 209. The Supreme Court held that, as a matter
of statutory interpretation, the “death results” language imports
a “but-for causality” requirement, and not merely a
requirement that narcotics use was a contributing factor in
causing death. Id. at 216.
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Because Merritt has not met his burden of establishing
that the error was obvious and affected his substantial rights,
any error here cannot be described as plain. Additionally, in
light of the jury’s unequivocal finding that Merritt assisted in
incinerating an entire family, a semantic shortcoming in the
verdict form is insufficient to satisfy the fourth (and
discretionary) clear error factor, which looks to the justice of
the outcome and whether it would seriously affect the public
reputation of judicial proceedings. On the contrary, were we
to reduce Merritt’s life sentence for such a heinous crime, and
were we to do so on a ground he did not bother to raise at trial,
that might call our criminal justice system into disrepute. His
life sentence is well founded.
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