United States v. Alan Barnett , 660 F. App'x 235 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4866
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALAN BOYD DONTA BARNETT, a/k/a Big Al,
Defendant - Appellant.
No. 14-4885
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SAMANTHA WILLIAMS, a/k/a Lady Sam, as Administrator of the
Estate of Samantha Wilkinson,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
Chief District Judge. (3:12-cr-00188-FDW-DSC-2; 3:12-cr-00188-
FDW-DSC-27)
Argued: March 24, 2016 Decided: October 12, 2016
Before AGEE and WYNN, Circuit Judges, and Thomas D. SCHROEDER,
United States District Judge for the Middle District of North
Carolina, sitting by designation.
Affirmed in part and reversed in part by unpublished opinion.
Judge Wynn wrote the opinion, in which Judge Agee and Judge
Schroeder joined.
ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina; Jeffrey William
Gillette, GILLETTE LAW FIRM, PLLC, Franklin, North Carolina, for
Appellants. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF:
Ross Hall Richardson, Executive Director, FEDERAL DEFENDERS OF
WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for
Appellant Williams. Jill Westmoreland Rose, Acting United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
WYNN, Circuit Judge:
In 2012, the government indicted twenty-eight individuals
for various crimes arising out of their alleged involvement with
the gang United Blood Nation (“UBN”). Two of these individuals,
Defendants Samantha Williams and Alan Barnett, proceeded to a
joint trial. The jury convicted both Defendants of conspiring
to violate the Racketeer Influenced and Corrupt Organizations
Act (“RICO”), 18 U.S.C. § 1962(d). Additionally, the jury
convicted Barnett of conspiring to commit murder in aid of
racketeering activity, two counts of conspiring to commit Hobbs
Act robbery, and several drug-related offenses.
Defendants assert numerous errors related to their
convictions and sentencing. We find no reversible error
pertaining to Barnett and thus affirm his conviction and
sentence. We conclude, however, that the government failed to
produce sufficient evidence that Williams agreed to the
commission of two racketeering acts forming a pattern of
racketeering activity, as required by Section 1962(d).
Accordingly, we reverse Williams’s conviction for conspiracy to
violate RICO.
I.
At trial, the government established the following facts.
UBN was founded in 1993 at Rikers Island Prison in New York
City, when two prisoners brought together several smaller groups
3
affiliated with the Bloods gang. UBN originally consisted of
eight groups, called “sets,” including the Gangster Killer
Bloods, commonly known as “G-Shine.” J.A. 262. At present,
UBN’s power structure remains in New York, but its membership
has spread to other prisons and communities along the East
Coast. The leader, or “godfather,” of each set serves on the
central council for the gang and directs set leaders in each
state. J.A. 263. The gang operates through a hierarchical
structure and a strict set of rules.
A.
Defendant Barnett was the second highest ranking member of
the G-Shine set in North Carolina. In the G-Shine hierarchy,
Barnett was directly under Franklin Robbs, the leader of G-Shine
in North Carolina, who in turn reported to Daryl Wilkinson.
Wilkinson—-also known as “OG Powerful,” “Infinity Q45,” and by
various other names—-was the godfather of G-Shine during the
relevant time period and was incarcerated in New York.
The government monitored a wiretap on Barnett’s phone for
roughly 90 days and surveilled Barnett and other UBN members for
years. At trial, the government submitted audio recordings of
over two dozen calls collected as part of the wiretap. On one
of those phone calls, described in greater detail below, see
infra Part III.A, Barnett and other UBN members discussed a plan
for a UBN member to attack an individual named Deray Jackson.
4
Additionally, numerous witnesses, including several UBN members
charged as co-conspirators, testified to Barnett’s leadership
role in G-Shine and his participation in robberies and drug
trafficking. Several law enforcement officers also testified
regarding instances in which they purchased drugs from Barnett
using undercover agents.
The jury found Barnett guilty of RICO conspiracy, 18 U.S.C.
§ 1962(d); conspiracy to commit murder in aid of racketeering,
18 U.S.C. § 1959(a)(5); two counts of conspiring to commit Hobbs
Act robbery, 18 U.S.C. § 1951; conspiracy to distribute and
possession with intent to distribute cocaine base, 21 U.S.C.
§§ 841(b)(1)(A), 846; illegal use of a communication device, 21
U.S.C. § 843(b); and distribution of cocaine, 21 U.S.C.
§ 841(b)(1)(C). The court sentenced Barnett to 360 months in
prison.
B.
At the time of the events giving rise to this case,
Williams was Wilkinson’s girlfriend and “first lady”—-which, in
UBN parlance, is “the mouthpiece . . . for [a] high ranking male
member if he’s incarcerated.” J.A. 291, 293. At trial, the
government introduced letters between Williams and Wilkinson and
recordings of calls among Williams and other alleged UBN
members. Although the government monitored roughly 17,000 phone
calls through its wiretap on Barnett, and thousands more through
5
wiretaps on other UBN members, Williams participated in less
than ten of the calls.
To meet its burden to prove that Williams agreed that UBN
members would commit at least two racketeering acts, the
government introduced evidence regarding alleged conspiracies:
(1) to commit the murders of Kellie Star, a UBN member who had
belonged to several different sets; Robbs, the leader of G-Shine
in North Carolina; and an individual named Dread; and (2) to
extort UBN members by requiring them to pay dues. See infra
Part IV. The government also introduced evidence regarding
various robberies and drug crimes committed by UBN members,
though, as the government concedes, none of that evidence
directly related to Williams. Appellee’s Br. at 54–55.
At the close of trial, the jury found Williams guilty of
conspiring to violate RICO. In its verdict, the jury concluded
that Williams agreed that at least two specific racketeering
acts would be committed as part of the UBN conspiracy. However,
in accordance with the verdict form and the court’s
instructions, the jury did not identify which two acts formed
the basis of its verdict. The court sentenced Williams to
seventy-two months in prison.
II.
RICO makes it “unlawful for any person employed by or
associated with any enterprise engaged in, or the activities of
6
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
. . . .” 18 U.S.C. § 1962(c). A “pattern of racketeering
activity” is defined as “at least two acts of racketeering
activity” occurring within a ten-year period. 18 U.S.C.
§ 1961(5). These “so-called predicate acts,” Salinas v. United
States, 522 U.S. 52, 62 (1997), include “any act or threat
involving murder, . . . robbery, . . . extortion, . . . or
dealing in a controlled substance . . . , which is chargeable
under State law and punishable by imprisonment for more than one
year.” 18 U.S.C. § 1961(1)(A).
The jury convicted Barnett and Williams of violating 18
U.S.C. § 1962(d), which prohibits conspiring to commit the
substantive RICO offense, Section 1962(c). “[T]o satisfy
§ 1962(d), the government must prove [1] that an enterprise
affecting interstate commerce existed; [2] ‘that each defendant
knowingly and intentionally agreed with another person to
conduct or participate in the affairs of the enterprise; and [3]
. . . that each defendant knowingly and willfully agreed that he
or some other member of the conspiracy would commit at least two
racketeering acts.’” United States v. Mouzone, 687 F.3d 207,
218 (4th Cir. 2012) (quoting United States v. Wilson, 605 F.3d
985, 1018–19 (D.C. Cir. 2010)). Unlike the general conspiracy
7
provision applicable to federal crimes, 18 U.S.C. § 371, Section
1962(d) does not require any overt or specific act to be
committed in furtherance of the conspiracy. Salinas, 522 U.S.
at 64. An agreement is sufficient. Id.Additionally, the two predicate acts must form “a pattern
of racketeering activity”, 18 U.S.C. § 1962(c), which means the
acts must be “related” and “pose a threat of continued criminal
activity.” H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 239
(1989). This two-prong “continuity plus relationship” test
requires a “commonsensical, fact-specific approach to the
pattern requirement.” Menasco, Inc. v. Wasserman, 886 F.2d 681,
684 (4th Cir. 1989). This effectuates “Congress’s desire to
limit RICO’s application to ‘ongoing unlawful activities whose
scope and persistence pose a special threat to social well-
being.’” US Airline Pilots Ass’n v. Awappa, LLC, 615 F.3d 312,
318 (4th Cir. 2010) (quoting Al-Abood ex rel. Al-Abood v. El-
Shamari, 217 F.3d 225, 238 (4th Cir. 2000)).
Defendants raise numerous challenges to their convictions
and sentences, both individually and jointly. We first address
Barnett’s assignments of error and then address those raised by
Williams.
8
III.
A.
Barnett first asserts that there was insufficient evidence
to support his conviction under 18 U.S.C. § 1959 for conspiring
to murder Deray Jackson in order to maintain or increase his
position in UBN. We disagree.
“We review de novo the district court’s ruling on a motion
for judgment of acquittal and we will uphold the verdict if,
viewing the evidence in the light most favorable to the
government, it is supported by substantial evidence.” United
States v. Kingrea, 573 F.3d 186, 194 (4th Cir. 2009) (quotation
omitted). “Substantial evidence is evidence that a reasonable
finder of fact could accept as adequate and sufficient to
support a conclusion of a defendant’s guilt beyond a reasonable
doubt.” Id. at 194–95 (internal quotation omitted). “While
circumstantial evidence may sufficiently support a conspiracy
conviction, the Government nevertheless must establish proof of
each element of a conspiracy beyond a reasonable doubt.” United
States v. Burgos, 94 F.3d 849, 858 (4th Cir. 1996).
Barnett’s conviction for conspiracy to commit murder in aid
of racketeering rested primarily on a June 23, 2011, phone call
among Barnett and several inmates at the Bertie Correctional
Center in North Carolina. An inmate named Joseph Gray added
Barnett to the call to discuss the “insubordination” of fellow
9
G-Shine member Nathaniel Graham. J.A. 1639. Barnett and other
participants on the call discussed the fact that Deray Jackson,
an inmate who was not affiliated with UBN, had stolen a cell
phone. In response, Gray and others had ordered Graham to “eat”
Jackson and, in addition, made clear that “[t]his was his day to
die.” J.A. 1651, 1654. Graham did not immediately carry out
this order, angering Gray and prompting the call.
Graham’s hesitation to follow orders brought to the
forefront internal strife involving two subsets of G-Shine—-
Pretty Tony and Black Gangsta Bloods (“BGB”)—-that Robbs and
Barnett were attempting to bring under the UBN umbrella.
Barnett and certain other G-Shine members viewed Pretty Tony and
BGB as part of G-Shine. Other members of G-Shine, however, were
less welcoming to the new subsets, neither of which was
officially added to UBN by Wilkinson, G-Shine’s godfather.
During the phone call, the inmates discussed their annoyance
that others in UBN did not “accept the fact that [Pretty] Tony
is Shine now” and not “a[n] individual entity.” J.A. 1637.
Graham, who was affiliated with G-Shine and BGB, had failed to
follow an order from high-ranking members of Pretty Tony and had
expressed doubt over their authority.
On the call, Barnett—-who was identified as a high-ranking
member of BGB—-scolded Graham for failing to follow orders,
stating that “Pretty Tony is Shine” and “[y]ou ain’t even
10
supposed to hesitate to eat the plate from the beginning.” J.A.
1637, 1643, 1652. When another participant on the call asked
why Jackson had not yet been shot, Barnett responded “more
east,” J.A. 1653, which is a UBN term indicating understanding
or agreement.
Four days after the call, Jaimel Davidson, a member of G-
Shine, violently assaulted Jackson with a “slashing weapon.”
J.A. 924. Graham was present at the attack. Based on the
evidence presented, the jury convicted Barnett of conspiring to
murder Jackson, in violation of 18 U.S.C. § 1959.
1.
To convict a defendant of conspiracy to commit murder in
aid of racketeering, the jury must find beyond a reasonable
doubt:
(1) that the organization was a RICO enterprise, (2)
that the enterprise was engaged in racketeering
activity as defined in RICO, (3) that the defendant in
question had a position in the enterprise, (4) that
the defendant [conspired to] commit[] the alleged
crime . . . , and (5) that his general purpose in so
doing was to maintain or increase his position in the
enterprise.
United States v. Fiel, 35 F.3d 997, 1003 (4th Cir. 1994)
(quoting United States v. Concepcion, 983 F.2d 369, 381 (2d Cir.
1992)).
Here, the organization identified in the indictment is UBN.
Barnett asserts that the alleged conspiracy to murder Jackson
11
(1) “was outside the scope of the UBN” because it was solely a
BGB conspiracy, Appellants’ Br. at 47, and (2) “did not maintain
or increase Barnett’s alleged position within the UBN,” id. at
48. We address each of these contentions in turn.
First, we find that a rational juror could have found,
beyond a reasonable doubt, that the conspiracy was related to
UBN—-and not to BGB alone. At trial, Barnett was identified as
both the second-in-command of G-Shine in North Carolina and a
high-ranking member of BGB. There is no evidence that Barnett
quit or was forced out of G-Shine when he began his affiliation
with BGB. Witnesses described BGB as a “set inside a set” and
characterized BGB as a subset of G-Shine rather than a new,
separate entity. J.A. 709–10. Indeed, Barnett and other BGB
members considered themselves to be G-Shine (and thus UBN)
members.
Consistent with this evidence, participants on the call
repeatedly affirmed that they were members of both G-Shine and
their respective subsets. They also stated that Pretty Tony and
BGB were part of G-Shine. For instance, Barnett stated, “Pretty
Tony is Shine . . . and that ain’t gonna change.” J.A. 1643;
see also J.A. 1659 (in which Gray asserted, “I’m looking at
everybody as Shine”). Additionally, the participants on the
call greeted each other with the phrases “shine love” and “shine
12
loyalty,” which were identified multiple times at trial as being
used only by and between members of G-Shine.
Barnett correctly points out that G-Shine’s leadership, and
Wilkinson in particular, opposed incorporating Pretty Tony and
BGB into UBN. However, the record is unclear as to precisely
when and how Wilkinson rendered this decision. Even if
Wilkinson clearly excluded BGB from G-Shine, there is no
evidence that it happened before the conspiracy to murder
Jackson arose.
In sum, a reasonable juror could have concluded that the
conspiracy to murder Jackson was related to UBN.
2.
Second, Barnett argues that he did not participate in the
conspiracy “for the purpose of . . . maintaining or increasing
[his] position in” UBN, as required by 18 U.S.C. § 1959. United
States v. Ayala, 601 F.3d 256, 265 (4th Cir. 2010). The purpose
requirement is “satisfied if the jury could properly infer that
the defendant committed his . . . crime because he knew it was
expected of him by reason of his membership in the enterprise or
that he committed it in furtherance of that membership.” Fiel,
35 F.3d at 1004 (quoting Concepcion, 983 F.2d at 381).
For instance, in United States v. Tipton, the defendant
claimed that his violent actions were motivated by a desire to
get revenge for “a purely personal grievance.” 90 F.3d 861, 891
13
(4th Cir. 1996). Rejecting the defendant’s argument, we found
the evidence sufficient to support the jury’s determination that
the actions were committed for the purpose of maintaining or
increasing his position within the racketeering enterprise. Id.In particular, we emphasized that the attacks were carried out
“in part at least in furtherance of the enterprise’s policy of
treating affronts to any of its members as affronts to all” and
because “furthering the reputation for violence [is] essential
to maintenance of the enterprise’s” reputation. Id.Furthermore, retaliatory attacks were “critical to the
maintenance of one’s position in the enterprise.” Id.Under Fiel and Tipton, there was sufficient evidence that
Barnett’s participation in the plan to murder Jackson helped him
to maintain or increase his position in UBN. Barnett’s position
as a high-ranking member of UBN relied, at least in part, upon
other members of UBN following his and his superiors’ orders.
The evidence at trial suggested that UBN uses a strict, almost
militaristic hierarchy. Maurice Robinson, a UBN member,
testified that if a gang member is given an order he must follow
it, regardless of what the order is and that failure to do so
would be in violation of the organization’s policies. Indeed,
respecting the “chain of command” was one of UBN’s “most
important” rules. J.A. 271–72.
14
Consistent with this rule, Barnett emphasized on the call
the importance of following the chain of command and obeying the
orders of superiors within the gang. Barnett instructed Graham
not to hesitate when following an order and agreed that
“[i]nsubordination [would] not be tolerated!” J.A. 1646.
Enforcing G-Shine’s hierarchy in this manner was not only
expected of Barnett, but also was “in furtherance of the
enterprise’s policy” and reputation. Tipton, 90 F.3d at 891.
In conclusion, there was sufficient evidence to support a
finding, beyond a reasonable doubt, that Barnett conspired to
murder Jackson for the purpose of maintaining or increasing his
position in UBN. Accordingly, we affirm Barnett’s conviction
under 18 U.S.C. § 1959.
B.
Barnett further argues that the district court erroneously
allowed Steven Parker, a detective with the Charlotte-
Mecklenburg Police Department who assisted the FBI in
investigating UBN, and UBN members Maurice Robinson and Rafus
Camp to testify regarding the meaning of slang words used on
recorded phone calls. 1 In particular, Barnett argues that lay
1 Williams also challenges this evidentiary decision.
Because we conclude that the government failed to introduce
sufficient evidence to support Williams’s conviction, see infra
Part IV, we need not—-and thus do not—-address whether the
(Continued)
15
witnesses—-i.e., those who have not been certified as experts—-
are not permitted to interpret calls in this way unless they
personally observed or participated in the calls in question.
We review challenges to a trial court’s evidentiary rulings
for abuse of discretion. United States v. Hassan, 742 F.3d 104,
130 (4th Cir. 2014). “A court has abused its discretion if its
decision is guided by erroneous legal principles or rests upon a
clearly erroneous factual finding.” United States v. Johnson,
617 F.3d 286, 292 (4th Cir. 2010) (internal quotation marks
omitted). Even if the district court errs, we will not reverse
if the error was harmless. United States v. McLean, 715 F.3d
129, 143 (4th Cir. 2013) (citing Fed. R. Crim. P. 52). An error
is harmless if we can say “with fair assurance” that “the
judgment was not substantially swayed by the error.” Id.(quoting United States v. Heater, 63 F.3d 311, 325 (4th Cir.
1995)).
Even assuming that the district court erred in admitting
the challenged testimony, the error would not have substantially
swayed the jury’s verdict as to Barnett. Barnett’s claim is
limited to interpretations by Parker, Robinson, and Camp of
phone calls in which they did not personally participate.
district court reversibly erred in admitting this challenged
evidence against her.
16
Barnett does not challenge the portions of these three
witnesses’ and others’ testimony that simply defined slang terms
used by the gang; rather, he challenges only the application of
those definitions to “translate” a statement on a particular
phone call. The challenged testimony, then, was often
cumulative and presented an interpretation of the phone calls
that the jury almost certainly would have reached on its own by
using the unchallenged definitions of gang terms.
Barnett specifically identifies only one challenged
statement that pertained to him: Parker’s testimony that the
term “eat the plate,” when used in Barnett’s June 23, 2011,
phone call with inmates at Bertie Correctional Center, meant to
follow an order—-in this case to “kill Deray Jackson.” J.A.
402. Several other witnesses testified that “eat the plate”
meant to carry out an order and that gang members could be
ordered to attack or even kill an identified person. And
additional statements on the phone call made clear that Jackson
was supposed to be shot and killed. See, e.g., J.A. 1654 (“This
was his day to die. Today was his day.”); J.A. 1653 (asking
“why [Jackson] ain’t been got shot”); J.A. 1661 (discussing that
the intention had been for Jackson to “die”). Given these
statements, the jury almost certainly would have reached the
conclusion that Graham had been ordered to kill Jackson—-even
absent Parker’s purported interpretation of the phone call.
17
Reviewing the remainder of the testimony, we find no
instances in which Parker, Robinson, or Camp interpreted a phone
call in a way that was not either obvious from the plain
language or easily understandable based on the definitions of
gang terms introduced at trial without objection. In addition,
we note that there was abundant evidence to support Barnett’s
convictions even if these lay witness interpretations had been
excluded. Therefore, we conclude with fair assurance that any
error in admitting the challenged testimony did not
substantially sway the jury’s verdict regarding Barnett.
C.
Barnett next asserts that the district court erroneously
instructed the jury regarding the “pattern of racketeering
activity” required for a RICO conspiracy conviction. 18 U.S.C.
§ 1962(c). 2 Barnett argues that the jury instructions failed to
adequately explain that “predicate acts that show a pattern of
criminal activity must be related to the racketeering
enterprise.” Appellants’ Br. at 53. Without clarifying
2
Barnett also argues that the jury instruction defining
extortion was plainly erroneous. At the time of briefing,
Barnett admitted that the jury instructions conformed to this
Court’s opinion in United States v. Ocasio, 750 F.3d 399 (4th
Cir. 2014), but wished to preserve the issue pending Supreme
Court review. Appellants’ Br. at 54. The Supreme Court
affirmed Ocasio, Ocasio v. United States, 136 S. Ct. 1423, 1429
(2016), foreclosing this argument.
18
language, Barnett claims, the jury may have based his RICO
conspiracy conviction on criminal acts related to the six other
counts for which he was tried, even if those acts had no
relation to UBN. We disagree.
At trial, Barnett proposed the following jury instruction:
The defendant knowingly and willfully became a member
of the conspiracy to further the racketeering
activities of the enterprise. A conspiracy must
intend to further an endeavor which, when completed,
would satisfy all of the elements of the substantive
racketeering offense, but it suffices that he adopt
the goal of furthering or facilitating the criminal
endeavor. However, defendant and partners in the
criminal plan must agree and pursue to the same
criminal objective.
J.A. 1360. The district court rejected this instruction.
Barnett later argued for an instruction clarifying that criminal
acts unrelated to UBN could not be predicate acts for a RICO
conspiracy. To accommodate this request, the district court
added a line to the jury instructions, so that the final version
read, in relevant part:
Proof of several separate conspiracies is not proof of
the single, overall conspiracy charged in the
superseding indictment . . . . Random criminal acts
unrelated to the conspiracy are not proof of a RICO
conspiracy. If you find that one or more of the
defendants was not a member of or associated with the
conspiracy charged, then you must find that defendant
not guilty, even though that defendant may have been a
member of some other conspiracy. This is because
proof that a defendant was a member of some other
conspiracy is not enough to be convicted.
J.A. 1489.
19
In addition to this passage, the final jury instructions
thoroughly discussed the elements of RICO conspiracy. Using
language similar to the rejected jury instruction proposed by
Barnett, the instructions stated that the defendant must have
“knowingly and willfully bec[o]me a member of the conspiracy to
further the unlawful purposes of the enterprise,” J.A. 1475, and
“knowingly adopted the goal of furthering or facilitating the
enterprise,” J.A. 1488. Additionally, the court instructed that
“the government must prove beyond a reasonable doubt that a
particular defendant agreed that a member of the conspiracy did
or would commit at least two acts of racketeering of the type or
types as described in count one of the superseding indictment.”
J.A. 1481–82. The instructions further provided that “[t]he
government must prove beyond a reasonable doubt that at least
two of these acts were, or were intended to be, committed as
part of the conspiracy.” J.A. 1482 (emphasis added).
Barnett argues that the district court erred in refusing
his proposed jury instruction and failed to adequately instruct
the jury about the elements of RICO conspiracy. “We review a
district court’s decision to give or refuse to give a jury
instruction for abuse of discretion.” United States v. Smith,
701 F.3d 1002, 1011 (4th Cir. 2012). We must “determine
whether, taken as a whole, the instruction fairly states the
controlling law.” United States v. Moye, 454 F.3d 390, 398 (4th
20
Cir. 2006) (en banc) (internal quotation marks omitted). If the
instructions contain an “error of law,” the district court has
abused its discretion. Id.When the district court rejects a proposed instruction, we
reverse only if that instruction “(1) was correct; (2) was not
substantially covered by the court’s charge to the jury; and (3)
dealt with some point in the trial so important, that failure to
give the requested instruction seriously impaired the
defendant’s ability to conduct his defense.” Smith, 701 F.3d at
1011 (quoting United States v. Passaro, 577 F.3d 207, 221 (4th
Cir. 2009)).
Here, the challenged jury instructions, considered as a
whole, fairly and accurately state controlling law. The
instructions made clear that the predicate acts for a RICO
conspiracy had to be part of the charged RICO conspiracy and not
“[r]andom criminal acts unrelated to the conspiracy” or evidence
related to “some other conspiracy.” J.A. 1489. Although the
instructions may not have “reinforce[d] this requirement” as
frequently as Barnett would have liked, Appellants’ Br. at 52
n.10, we presume that the jury followed the instructions as
given, Richardson v. Marsh, 481 U.S. 200, 211 (1987). Thus, the
district court did not abuse its discretion by giving its jury
instructions on RICO’s pattern-of-racketeering element.
21
The district court likewise did not abuse its discretion in
rejecting Barnett’s proposed jury instruction. As an initial
matter, we do not see—-nor does Barnett explain—-how his
proposed instruction would have clarified the requirement that
the predicate racketeering acts must be related to the RICO
conspiracy. Instead, the proposed instruction restates other
elements of RICO conspiracy that were defined elsewhere in the
final jury instructions. Accordingly, its absence did not
impair Barnett’s ability to conduct his defense. See Smith, 701
F.3d at 1011.
In sum, we affirm Barnett’s RICO conspiracy conviction.
D.
Finally, Barnett argues that the district court improperly
sentenced him as a career offender pursuant to section 4B1.1 of
the United States Sentencing Guidelines (the “Guidelines”).
According to Barnett, Johnson v. United States, 135 S. Ct. 2551,
2555–57 (2015), which struck down the residual clause of the
Armed Career Criminal Act (“ACCA”) as unconstitutionally vague,
effectively invalidated the residual clause in the Guidelines’
definition of “crime of violence,” U.S.S.G. § 4B1.2. Barnett
contends that, without the residual clause, he did not have “at
least two prior felony convictions of either a crime of violence
or a controlled substance offense,” which are necessary
predicates to a career offender designation. Id. § 4B1.1(a).
22
“[W]e review the district court’s sentencing procedure for
abuse of discretion.” United States v. Gomez-Jimenez, 750 F.3d
370, 379 (4th Cir.), as corrected (Apr. 29, 2014). First, we
“ensure that the district court committed no significant
procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range.” Gall v. United States, 552
U.S. 38, 51 (2007). If we find no procedural error, we then
“consider the substantive reasonableness of the sentence imposed
under an abuse-of-discretion standard.” Id.“[H]armless error review applies to a district court’s
procedural sentencing errors made during its Guidelines
calculation.” Gomez-Jimenez, 750 F.3d at 382. Thus, “we
commonly assume, without deciding, an error in performing
harmless error inquiry.” United States v. Savillon-Matute, 636
F.3d 119, 123 (4th Cir. 2011). A “Guidelines error is harmless
if we believe (1) the district court would have reached the same
result even if it had decided the guidelines issue the other
way, and (2) the sentence would be [substantively] reasonable
even if the guidelines issue had been decided in the defendant’s
favor.” United States v. Parral-Dominguez, 794 F.3d 440, 447
(4th Cir. 2015) (alteration in original) (internal quotation
marks omitted).
23
Even assuming that Barnett’s designation as a career
offender was in error, 3 that error was harmless. During
sentencing, the district court determined, over Barnett’s
objection, that he was a career offender. Pursuant to section
4B1.1 of the Guidelines, the district court placed Barnett in
criminal history category VI, the same category that he would
have been assigned absent the career offender designation.
U.S.S.G. § 4B1.1(b). The district court also had to assign
Barnett the greater of “the offense level otherwise applicable,”
which was 41, and the offense level prescribed in the career
offender guideline, which was 37. Id. Thus, regardless of
whether he was labeled a career offender, Barnett had an offense
3
In declining to address this issue, we do not imply that
Barnett’s contention lacks merit. Johnson concerned the ACCA,
but it also called into question the constitutionality of the
identical residual clause contained in the career offender
guideline’s definition of “crime of violence.” See United
States v. Hudson, 823 F.3d 11, 18 (1st Cir. 2016) (stating that
the residual clause in the career offender guideline is invalid
following Johnson); United States v. Madrid, 805 F.3d 1204,
1210–11 (10th Cir. 2015) (holding that the residual clause in
the career offender guideline is unconstitutionally vague
pursuant to the reasoning in Johnson). Some of Barnett’s
predicate crimes—-including common law robbery and robbery with
a dangerous weapon—-may have fallen within the residual clause.
See United States v. Gardner, 823 F.3d 793, 803–04 (4th Cir.
2016) (holding that North Carolina common law robbery qualified
as a violent felony under the now-unconstitutional residual
clause of the ACCA, and is no longer within the definition of a
violent felony post-Johnson); United States v. White, 571 F.3d
365, 369, 373 (4th Cir. 2009) (holding, pre-Johnson, that
conspiracy to commit robbery with a dangerous weapon fell within
the ACCA’s residual clause).
24
level of 41 and a criminal history category of VI, leading to a
Guidelines range of 360 months to life imprisonment. The court
sentenced Barnett to 360 months in prison, the bottom end of the
Guidelines range.
Even if the career offender designation had affected
Barnett’s Guidelines range—-which it did not—-the district court
made clear that it still would have sentenced Barnett to 360
months in prison. In particular, the district court pronounced,
as an alternative grounds for the sentence, that, “based solely
on the sentencing factors without consideration of the
sentencing guidelines, particularly with emphasis on [the]
nature and circumstances of the offense, general and specific
deterrence, the Court does believe that a 360-month sentence is
the appropriate sentence.” J.A. 1826–27. Language of this sort
“make[s] it ‘abundantly clear’ that a judge would have imposed
the same sentence, regardless of any procedural error.” Parral-
Dominguez, 794 F.3d at 447–48 (quoting Savillon-Matute, 636 F.3d
at 382–83); see also Gomez-Jimenez, 750 F.3d at 382–83 (citing a
similar pronouncement as evidence that the court would have
imposed the same sentence regardless of the Guidelines range).
Having determined that the district court “would have
reached the same result” even if it had not sentenced Barnett as
a career offender, we next assess whether the sentence was
substantively reasonable. See Parral-Dominguez, 794 F.3d at
25
447. To do so, we “examine[] the totality of the circumstances
to see whether the sentencing court abused its discretion in
concluding that the sentence it chose satisfied the standards
set forth in [18 U.S.C.] § 3553(a).” Gomez-Jimenez, 750 F.3d at
383 (quoting United States v. Mendoza-Mendoza, 597 F.3d 212, 216
(4th Cir. 2010)) (first alteration in original). “[A] sentence
located within a correctly calculated guidelines range is
presumptively reasonable.” United States v. Susi, 674 F.3d 278,
289 (4th Cir. 2012) (internal quotation marks omitted).
Here, the district court thoroughly examined the factors in
Section 3553(a) and imposed a sentence at the bottom of the
Guidelines range. We find this sentence to be substantively
reasonable and not an abuse of discretion.
Finding no reversible error relating to Barnett, we affirm
his convictions and sentence.
IV.
Williams principally challenges on appeal the sufficiency
of the evidence supporting her conviction for conspiring to
violate RICO. As outlined above, “we will uphold [a] verdict
if, viewing the evidence in the light most favorable to the
government, it is supported by substantial evidence.” Kingrea,
573 F.3d at 194; see supra Part III.A.
Williams claims that the government failed to introduce
sufficient evidence that she agreed that UBN members would
26
commit the two racketeering acts necessary to establish a
pattern of racketeering activity. By contrast, the government
claims it produced evidence sufficient to establish that
Williams agreed that she or another member of UBN would commit
(1) robberies and drug crimes, (2) extortion and (2) the murders
of Star, Robbs, and Dread.
To be convicted for RICO conspiracy, “[a] conspirator must
intend to further an endeavor which, if completed, would satisfy
all of the elements of a substantive criminal offense.”
Salinas, 522 U.S. at 65; Burgos, 94 F.3d at 858 (“[T]he
Government . . . must establish proof of each element of a
conspiracy beyond a reasonable doubt.”). Accordingly, we must
determine whether a reasonable juror could conclude, beyond a
reasonable doubt, that the government established each element
of the substantive offense for at least two of Williams’s
alleged predicate acts.
1.
The government first argues that Williams’s RICO conspiracy
conviction is supported by her alleged agreement that UBN
members would commit predicate racketeering acts of robbery and
drug trafficking. The government states: “Because Williams
played a central role in the gang as the primary source and
conduit of information and as an advisor integral to the success
and coordination of gang activities, the jury could reasonably
27
infer that she was aware that UBN members engaged in drug
trafficking and committed robberies.” Appellee’s Br. at 54–55.
The government concedes that it “did not present direct evidence
that Williams personally participated in any such acts,” and it
fails to point to any specific act of drug trafficking or
robbery to which Williams agreed. Id. at 54.
This general assertion cannot constitute substantial
evidence that Williams knowingly and willfully agreed to the
commission of a robbery or drug trafficking offense and, thus,
is insufficient to prove a predicate racketeering act. See
Mouzone, 687 F.3d at 218 (holding that the government must prove
that “each defendant knowingly and willfully agreed that he or
some other member of the conspiracy would commit at least two
racketeering acts.” (quoting Wilson, 605 F.3d at 1018–19)).
“[T]he RICO conspiracy statute does not ‘criminalize mere
association with an enterprise.’” Id. (quoting Brouwer v.
Raffensperger, Hughes & Co., 199 F.3d 961, 965 (7th Cir. 2000)).
Were we to accept the government’s argument, almost any
individual affiliated with a gang could be presumed to know
about and agree to the commission of racketeering acts generally
and therefore be guilty of conspiring to violate RICO. See
United States v. Izzi, 613 F.2d 1205, 1210 (1st Cir. 1980)
(“Guilt by association is one of the ever present dangers in a
conspiracy count that covers an extended period.”). We decline
28
the government’s invitation to broaden RICO’s scope in this
manner.
Without any evidence showing that Williams agreed to the
commission of a particular robbery or drug offense, no
reasonable juror could find, based solely on her association
with UBN, that she agreed to predicate acts of drug trafficking
or robbery.
2.
Second, the government alleges that Williams agreed to—-and
personally carried out—-the predicate racketeering act of
extortion by facilitating the collection of certain dues from
UBN members. Extortion, as defined by 18 U.S.C. § 1951, is a
predicate racketeering act under RICO. Id. § 1961(1). Under
Section 1951, extortion “means the obtaining of property from
another, with his consent, induced by wrongful use of actual or
threatened force, violence, or fear, or under color of official
right.” Id. § 1951(b)(2).
The government’s principal evidence supporting Williams’s
alleged involvement in extortion was an email sent from
Williams’s professional email address to her personal email
address. The email—-styled as a letter entitled “Reaching Back
for the Iced Out Soldiers”—-discusses a “mandatory” dues program
for G-Shine members, through which they “reach back” to support
29
incarcerated gang members and their families. J.A. 1685b. 4
According to the message, higher-ranking G-Shine members owed
fifty dollars each month in dues. Higher-ranking members who
failed to pay their dues would “be demoted.” J.A. 1685b–c.
Members without rank owed twenty dollars a month. The dues were
to be “collected and recorded by Brazy (Sam) or Sam as most of
you know her.” J.A. 1685c. The letter concludes by stating
that “any games being played will result to sanctions being
admin[i]stered.” J.A. 1685c. It was signed using nicknames and
titles associated with Wilkinson. The government did not put
forward any evidence establishing that Williams—-or anyone else—
-ever sent the letter to G-Shine members.
The government’s evidence regarding the Reaching Back
initiative failed to establish that Williams agreed that actual
or threatened force, violence or fear would be used to induce
Reaching Back dues payments, as is required to prove extortion
under Section 1951. In particular, the only “sanction”
identified in the letter was “demotion,” which does not entail
force, violence or fear.
That the government introduced substantial evidence that
UBN members engaged in violent conduct unrelated to the Reaching
4
The terms “iced out soldiers” or “iced out medallions,”
both of which are used in this letter, refer to incarcerated
members of the gang. J.A. 288–89.
30
Back program does not change this analysis. Just as RICO “does
not ‘criminalize mere association with an enterprise,’” Mouzone,
687 F.3d at 218, so too association with a violent organization
does not give rise to extortion as a RICO predicate, absent a
showing that threats or violence or the organization’s violent
reputation was used to unlawfully obtain the allegedly extorted
payments or property. See United States v. Local 1804-1, Int’l
Longshoremen’s Ass’n, 812 F. Supp. 1303, 1326, 1340 (S.D.N.Y.
1993), aff’d sub nom United States v. Carson, 52 F.3d 1173 (2d
Cir. 1995)(finding insufficient evidence for certain alleged
extortions to constitute RICO predicates due to lack of evidence
of direct or indirect threats or evidence that alleged victims
made payments in fear, notwithstanding that the government
produced evidence that defendants were associated with mafia and
engaged in other acts of extortion by virtue of fear created by
that association). Here, the government introduced no evidence
connecting the Reaching Back initiative to UBN’s other violent
conduct, let alone any evidence that UBN relied on its
reputation for violence to induce Reaching Back payments.
Accordingly, we conclude the government failed to put forward
sufficient evidence that Williams agreed that UBN would commit
the proposed RICO predicate of extortion.
31
3.
Regarding the alleged predicate acts of murder, the
government asserts that Williams agreed that UBN members would
murder three individuals: Dread, Robbs and Star. To engage in a
conspiracy to commit murder, the conspirators must have an
intent to kill. See State v. Brewton, 618 S.E.2d 850, 856–58
(N.C. App. 2005) (holding that premeditation and deliberation
are necessary elements of an agreement to commit murder); cf.
State v. Coble, 527 S.E.2d 45, 46-48 (N.C. 2000) (holding that
attempted second-degree murder is not a crime because “to commit
the crime of attempted murder, one must specifically intend to
commit murder”). 5
The government’s evidence related to Dread amounted to a
single phone call in which Williams passed along an order from
Wilkinson that gang members should not “push the button on
5 The indictment in this case identified murder chargeable
under N.C. Gen. Stat. §§ 14-17, 14.2-4 as one of UBN’s
racketeering activities. See 18 U.S.C. § 1961(1)(A) (listing
murder, if “chargeable under State law and punishable by
imprisonment for more than one year” as a racketeering
activity). Therefore, we rely on North Carolina law to define
murder and conspiracy to commit murder. However, we note that
even if the alleged agreements to commit murder occurred in
another jurisdiction, RICO requires that the defendant agree
“knowingly and willfully,” Mouzone, 687 F.3d at 218, that a co-
conspirator will commit an act that “if completed, would satisfy
all of the elements of a substantive criminal offense.”
Salinas, 522 U.S. at 65. In other words, an individual who
agrees that a co-conspirator will murder someone must know that
the agreement’s objective is to kill the victim.
32
Dread.” J.A. 1664. The term “push the button” was never
defined at trial. But even assuming that it does mean to kill
someone, the evidence suggests—-at most—-that Williams ordered
Jenkins not to kill Dread. This does not amount to substantial
evidence that Williams agreed that a UBN member would murder
Dread. Accordingly, the alleged conspiracy to murder Dread
cannot serve as a predicate for Williams’ RICO conviction.
The alleged conspiracy to murder Robbs suffers from a
similar lack of evidence of intent to kill. While Robbs was in
prison, Star claimed she had a copy of a North Carolina
Department of Corrections (“DOC”) report discussing an assault
on Robbs by another inmate. The report, which Star emailed to
Williams, said that Robbs “did not fight back” and made a
statement to the DOC after the incident. J.A. 1687. This
report hurt Robbs’s reputation because it indicated that he was
cooperating with investigators—-or “snitching”—-which was
strictly forbidden by UBN. J.A. 463.
On June 6, 2011, Williams and Barnett spoke on the phone
about Robbs’s alleged snitching. Williams explained that she
had spoken to Wilkinson about the report and that Wilkinson
said, “if that’s so, [Robbs is] Double-O.” J.A. 1627. Williams
clarified that “if this is proven differently”—-i.e., if the
report was a fake—-“that girl [Star] . . . definitely is, is
food.” J.A. 1627. Williams concluded that they had to “just
33
get to the bottom of it,” and Barnett agreed. J.A. 1627–28.
During a June 14, 2011, phone call, Williams told Barnett that
she had concluded that Star’s report was fake. Accordingly,
Williams explained that Wilkinson had “rescinded” the order
making Robbs “double-O.” 6 J.A. 1633.
None of this evidence established that Williams-or any
other member of the alleged conspiracy-had the requisite intent
to kill Robbs. Although Williams said that Wilkinson told her
Robbs was “Double-O” if the DOC report turned out to be true,
the government did not present any evidence that “Double-O”
meant that someone was targeted for murder. Instead, the
evidence established that “Double-O” meant a “mission.” J.A.
285, 361, 432, 681–82. Although a mission might be to punish
someone or make them “food,” it could also mean to follow any
other order, legal or illegal. With no other evidence
suggesting that Williams agreed that Robbs would be killed—-and
not punished, demoted, or assaulted—-no rational trier of fact
could find, beyond a reasonable doubt, the requisite intent to
murder Robbs.
* * * * *
6According to trial testimony, Robbs was never assaulted as
a result of being labeled “Double-O” or as punishment for his
conduct in relation to the prison attack.
34
The government, therefore, failed to introduce substantial
evidence supporting the purported RICO predicate acts of robbery
and drug trafficking, extortion, and conspiracy to murder Dread
and Robbs. Accordingly, even if we were to conclude the
government introduced evidence sufficient to establish that
Williams agreed that UBN members would murder Star--the only
remaining predicate offense asserted by the government--no
reasonable trier of fact could have concluded that Williams
knowingly and intentionally agreed to the commission of the two
predicate acts necessary to establish pattern of racketeering
activity. 7 Accordingly, we reverse Williams’s conviction for
conspiring to violate RICO. 8
V.
For the reasons stated above, we find no reversible error
pertaining to Barnett’s convictions or sentence. However, the
government failed to introduce evidence sufficient for a
reasonable juror to conclude beyond a reasonable doubt that
Williams agreed to the commission of at least two predicate
7Because Williams’ alleged agreement to murder Star cannot,
by itself, support her RICO conviction, we do not decide whether
the government introduced substantial evidence that Williams
agreed to that UBN members would murder Star.
8Because we reverse Williams’s conviction, we do not decide
whether the district court procedurally erred in determining her
sentence.
35
racketeering acts forming a pattern of racketeering activity.
Therefore, we vacate Williams’s RICO conspiracy conviction.
AFFIRMED IN PART AND REVERSED IN PART
36