United States v. McClaren ( 2021 )

Case: 17-30524 Document: 00516007831 Page: 1 Date Filed: 09/09/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 9, 2021
No. 17-30524 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Delwin McClaren; Dedrick Keelen; Jawan Fortia;
Bryan Scott; Lionel Allen,
Defendants—Appellants.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:14-CR-131-9
Before Stewart, Higginson, and Wilson, Circuit Judges.
Carl E. Stewart, Circuit Judge:
IT IS ORDERED that the government’s petition for panel
rehearing is GRANTED and that our prior panel opinion, United States v.
McClaren, 998 F.3d 203 (5th Cir. 2021), is WITHDRAWN and the
following opinion is SUBSTITUTED therefor. Appellants’ petitions for
panel rehearing and for rehearing en banc are DENIED.
Defendants Delwin McClaren, Dedrick Keelen, Jawan Fortia, Bryan
Scott, and Lionel Allen were convicted of numerous crimes related to their
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participation in a New Orleans street gang. We AFFIRM their convictions
in part and VACATE in part.
I. FACTS AND PROCEDURAL HISTORY
Defendants were members of the Young Melph Mafia (“YMM”), a
street gang in New Orleans. A grand jury charged Defendants in a second
superseding indictment for violations of the Racketeer Influenced and
Corrupt Organizations Act (“RICO”), the Federal Controlled Substances
Act, the Federal Gun Control Act, and the Violent Crimes in Aid of
Racketeering Act (“VICAR”). The indictment charged Allen, Fortia, and
Keelen with numerous substantive VICAR and firearms offenses stemming
from several shootings. The indictment additionally charged Defendants
with RICO, drug-trafficking, and firearms conspiracies. Fortia and Keelen
were charged in all conspiracies, while Allen was charged in the RICO and
firearms conspiracies. McClaren and Scott were charged only in the drug and
firearms conspiracies.
The district court denied McClaren’s and Scott’s motions for
severance. During jury selection, the district court granted Batson challenges
by both sides. The six-day trial included almost 70 witnesses and
approximately 300 exhibits. At the close of the evidence, the district court
denied Defendants’ motions for judgments of acquittal. Allen and Fortia
were both acquitted of causing death with a firearm, but the jury found
Defendants guilty as charged on all other counts. Defendants filed a joint
motion for a new trial, arguing the government’s witnesses were not credible.
The district court denied the motion.
After Defendants appealed, the government informed them that a
government witness may have perpetrated an additional shooting with Allen.
This court remanded, and Fortia, Keelen, and McClaren filed motions for a
new trial. The district court denied the motions, finding the disclosure was
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not material. Defendants appealed that denial and their convictions in
general.
II. DISCUSSION
Defendants raise multiple arguments for reversing their convictions.
We review each in turn.
A. Motion to Sever
The district court declined to sever McClaren and Scott’s trials. The
district court noted that, although McClaren and Scott were not charged with
the RICO conspiracy, “there is little doubt as to the interrelatedness of the
counts[.]”The district court stated
[T]he distribution and gun conspiracies here are part of the same
scheme of illegal activity as the RICO conspiracy. Not only are
multiple defendants common to all three conspiracies, the aims of the
RICO and distribution conspiracies are the same—dealing crack
cocaine and marijuana in Central City. Moreover, all but one
defendant is charged in the gun conspiracy of Count 3, which involves
the use of firearms and violence in furtherance of the crimes alleged in
Counts 1 and 2. Clearly, these three conspiracies are interrelated.
The court did however issue a limiting instruction, admonishing the jury to
consider the case of each defendant separately. McClaren and Scott argue
that the court erred in denying their motions to sever, noting that they were
charged with significantly less serious crimes than their co-defendants.
Neither of them was charged with crimes of violence. They maintain that
denying the motion to sever resulted in substantial prejudice because of the
highly inflammatory evidence presented against the other defendants.
“We review a denial of a motion to sever a trial under the exceedingly
deferential abuse of discretion standard.” United States v. Chapman, 851 F.3d
363, 379 (5th Cir. 2017) (citation and internal quotation marks omitted).
Federal Rule of Criminal Procedure 14(a) provides that a court “may . . .
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sever Defendants’ trials” if the joinder “appears to prejudice a defendant or
the government.” Fed. R. Crim. P. 14(a). Nevertheless, “Rule 14 does
not require severance even if prejudice is shown; rather, it leaves the tailoring
of the relief to be granted, if any, to the district court’s sound discretion.”
Chapman, 851 F.3d at 379 (citation omitted). Limiting instructions are
“generally sufficient to prevent the threat of prejudice[.]” Id. (citation and
internal quotation marks omitted).
To demonstrate abuse of discretion, Defendants must prove that the
joint trial prejudiced them beyond district court protection and that the
prejudice outweighed any interest in the economy of judicial administration.
See United States v. Rodriguez, 831 F.3d 663, 669 (5th Cir. 2016). Defendants
must isolate events at trial, demonstrate the events caused substantial
prejudice, and show the jury instructions were inadequate to protect them.
See id.McClaren and Scott have not met the heavy burden necessary to show
that the district court abused its discretion. The district court was correct in
noting the interrelatedness of McClaren’s and Scott’s actions with the rest
of the conspiracy, even if McClaren’s and Scott’s actions were less severe.
McClaren and Scott have not pointed to evidence demonstrating that the
joint trial prejudiced them beyond protection of the limiting instruction or
that prejudice outweighed the interest in economical judicial administration,
as they are required to do. See id. Furthermore, they have not pointed to the
record to show what events created substantial prejudice. See id. The cases
they cite are all significantly distinguishable from the facts present here.
For example, in United States v. Cortinas, this court held that the
defendants were entitled to a severance of their trial from seven others tried
for offenses involved in a drug conspiracy. 142 F.3d 242, 248 (5th Cir. 1998).
Although they had been part of the conspiracy initially, the record showed
clearly that the defendants withdrew from the conspiracy before a new gang
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joined the conspiracy and violent acts occurred. Id. There is no such
withdrawal here, and McClaren and Scott were not wrongfully associated
with people they had no relation to. McRae is similarly distinguishable,
featuring a former police officer who shot and killed a victim but was tried
jointly with other officers who burned the victim’s body to cover up the
crime. United States v. McRae, 702 F.3d 806, 811–19, 824, 828 (5th Cir. 2012).
The trial for the officer would have only lasted three days, but the joint trial
lasted a month and focused largely on highly inflammatory evidence that was
irrelevant to the murder. Here, the actions of McClaren and Fortia are not so
easily separable from the overall conspiracy at issue in this case. While
McClaren and Fortia correctly point out that their involvement was
significantly less than the other defendants, the court did not abuse its
discretion in denying the motion to sever.
B. Batson Challenges
Defendants used all eleven peremptory strikes against white jurors.
The government challenged the strikes, and the district court seated three
challenged jurors, two of whom served. Defendants argue that the court erred
by not asking the prosecution to respond to the proffered race-neutral reasons
for striking the jurors. Defendants maintain that their reasons for using
peremptory strikes, such as a juror’s past military service, were acceptable
and non-pretextual. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 143 n.16
(1994).
Prosecutors are allowed to challenge the defense’s peremptory strikes
as racially discriminatory. Georgia v. McCollum, 505 U.S. 42 (1992). Whether
under McCollum or Batson, the three-step analysis is the same: (1) “the [party
challenging the strike] must make out a prima facie case by showing that the
totality of the relevant facts gives rise to an inference of discriminatory
purpose;” (2) once a prima facie case is made, the burden shifts to the
striking party to offer a permissible race-neutral justification for the strike;
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(3) “if a race-neutral explanation is tendered,” the trial court then decides
“whether the opponent of the strike has proved purposeful racial
discrimination.” Johnson v. California, 545 U.S. 162, 168 (2005) (internal
quotation marks and citations omitted).
“The district court’s determination that a party has used peremptory
strikes in a discriminatory manner is a finding of fact and thus cannot be
overturned by this court absent clear error.” United States v. Bennett, 664
F.3d 997, 1008 (5th Cir. 2011) (quotation omitted), vacated on other grounds,
567 U.S. 950 (2012). A finding is clearly erroneous if “[this court is] left with
a definite and firm conviction that a mistake has been committed.” Id. We
give great deference to the district court because Batson findings largely turn
on evaluating the credibility or demeanor of the attorney exercising the
challenge. Id.Because the district court ruled on the ultimate question of intentional
discrimination, the preliminary issue of whether the government made a
prima facie case is moot. See United States v. Petras, 879 F.3d 155, 161 (5th
Cir. 2018).
Defendants have not established that the district court committed
clear error, a very high burden. District courts are given latitude to simply
disbelieve that a proffered, race-neutral reason given is the true reason.
Bennett, 664 F.3d 997 at 1010. The court considered the race-neutral reasons
offered, and concluded that they were pretextual because all eleven strikes
were used against the same demographic and because many of the reasons
given appeared to be “frivolous.” We cannot say that the district court
clearly erred in its determination.
C. Co-Conspirator Testimony
Defendants challenge all their convictions on the basis that they were
largely supported by co-conspirator testimony. Defendants point out that
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many key witnesses were testifying in exchange for a lighter sentence, and
some of their testimony was inconsistent with that of other witnesses.
“[A] defendant may be convicted on the uncorroborated testimony of
a coconspirator who has accepted a plea bargain unless the coconspirator’s
testimony is incredible.” United States v. Valdez, 453 F.3d 252, 257 (5th Cir.
2006) (alteration in original) (quoting United States v. Villegas–Rodriguez, 171
F.3d 224, 228 (5th Cir. 1999)). “Testimony is incredible as a matter of law
only if it relates to facts that the witness could not possibly have observed or
to events which could not have occurred under the laws of nature.” Id.(quoting United States v. Bermea, 30 F.3d 1539, 1552 (5th Cir. 1994); see also
United States v. Arledge, 553 F.3d 881, 888 (5th Cir. 2008) (Testimony can
also be “incredible” if it is “unbelievable on its face” (quoting United States
v. Carrasco, 830 F.2d 41, 44 (5th Cir.1987))). Defendants have not pointed to
testimony that meets this high burden of being incredible as a matter of law.
A case where a conviction is based only on the testimony of an
accomplice may require a court to issue a limiting instruction. Tillery v. U.S.,
411 F.2d 644, 644 (5th Cir. 1969) (finding reversible error where there was
no limiting instruction in a case where the accomplice “indicated less
concern with the truth than with his own skin”). However, here the lower
court did give the jury a limiting instruction regarding the reliability of
accomplice testimony.
Therefore, we will consider the testimony of co-conspirators when we
review convictions for sufficiency of the evidence.
D. RICO Convictions
Allen, Fortia, and Keelen challenge their convictions for RICO
conspiracy under 18 U.S.C. § 1962(d). They argue that the prosecution failed
to prove the existence of a RICO conspiracy. We disagree.
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“In reviewing sufficiency of the evidence we view the evidence and all
inferences to be drawn from it in the light most favorable to the verdict to
determine if a rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” United States v. Delgado, 401 F.3d
290, 296 (5th Cir. 2005) (quoting United States v. Posada–Rios, 158 F.3d 832,
855 (5th Cir. 1998)). When defendants make timely motions for acquittal, as
was done here, review is de novo but still “highly deferential to the verdict.”
United States v. Bowen, 818 F.3d 179, 186 (5th Cir. 2016) (quoting United
States v. Beacham, 774 F.3d 267, 272 (5th Cir. 2014)). “All reasonable
inferences are made in favor of the jury’s verdict.” Id. This court must affirm
unless no rational jury could have found the offenses’ essential elements
proven beyond a reasonable doubt. Id.To prove a RICO conspiracy, the government must prove only that
defendants conspired to violate 18 U.S.C. § 1962(c). See United States v.
Nieto, 721 F.3d 357, 368 (5th Cir. 2013). Section 1962(c) states that “[i]t shall
be unlawful for any person . . . 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 . . . .” A “pattern of racketeering
activity” is at least two acts of racketeering activity within ten years of each
other. 18 U.S.C. § 1961(5). “Racketeering activity” includes state felony
offenses involving murder, robbery, extortion, and several other serious
offenses and serious federal offenses including extortion and narcotics
violations. 18 U.S.C. § 1961(1).
Defendants argue that the government did not prove that YMM was
an enterprise. An “enterprise” can be any group of individuals associated in
fact although not a legal entity, 18 U.S.C. § 1961(4), and can be inferred from
“largely or wholly circumstantial evidence.” United States v. Elliott, 571 F.2d
880, 898 (5th Cir. 1978). RICO “does not specifically define the outer
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boundaries of the ‘enterprise’ concept,” but “[t]he term ‘any’ ensures that
the definition has a wide reach, and the very concept of an association in fact
is expansive.” Boyle v. United States, 556 U.S. 938, 944 (2009) (citations
omitted). “An association-in-fact enterprise must have at least three
structural features: a purpose, relationships among those associated with the
enterprise, and longevity sufficient to permit these associates to pursue the
enterprise’s purpose.” Id. at 946. Finding an enterprise does not require
proving a hierarchy, chain of command, role differentiation, membership
dues, initiation rituals, or unique modus operandi. See id. at 946–48.
The Fifth Circuit in United States v. Jones recognized a gang as a RICO
enterprise on substantially similar facts:
ROD had a clear purpose—selling drugs and protecting those drug
sales and the group’s members—and its members were associated
with one another. Members used a house on Mandeville Street to
store guns and drugs and to prepare and package the drugs for resale,
working in shifts. The owner of the house testified that on at least one
occasion, members pooled their money to buy crack for resale. A
former member testified that members sold drugs at specific locations,
that only members could sell drugs in certain territories, and that
members stashed guns for other members’ use. Members committed
a large number of violent crimes alongside other members.
873 F.3d 482, 490 (5th Cir. 2017). Defendants argue YMM was a friend
group without any purpose, and that alleged criminal acts were done
independently of each other. However, the government offered sufficient
evidence for the jury to conclude that there was a purpose of drug dealing.
Several people testified that YMM had a purpose to sell drugs. 1 The
1
For example, a witness testified YMM was “a violent street gang that sold drugs,
carried guns, and committed numerous murders” and claimed to be associated with them.
Another witness testified that the YMM eventually started selling drugs and toting guns,
and then some members became involved in violence.
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government offered evidence that members identified themselves with hand
signs, YMM tattoos, and clothing. In photos presented to the jury,
individuals are holding large amounts of money and guns. There is testimony
that this money was from selling drugs. Multiple people testified that YMM
members violently retaliated against rivals.2 There was also testimony that
YMM members kept guns for the express purpose of protecting themselves
during drug deals. A witness testified that there was a common supplier of
drugs to YMM members. Another witness testified some YMM members,
including McClaren, pooled money to buy a bigger quantity. He testified they
had a specific area they sold in, and other people they did not know could not
sell there. This evidence suffices to prove the existence of an enterprise.
Defendants also argue that any enterprise that did exist did not engage
in or affect interstate commerce. To prove a violation of RICO, the
government must prove beyond a reasonable doubt the existence of an
enterprise that affects interstate commerce. See United States v. Delgado, 401
F.3d 290, 297 (5th Cir. 2005), see also 18 U.S.C. § 1962(c)–(d) (requiring a
violator of RICO to be employed by or associated with an enterprise that is
engaged in or whose activities affect interstate or foreign commerce). “The
nexus with interstate commerce required by RICO is minimal.” Delgado, 401
F.3d at 297 (internal quotation marks omitted).
2
For example, a witness testified that Vennie Smith was killed because Fortia
thought “Vennie was crossing him with the 10th Ward.” Another witness testified to an
incident where Davis, a member of the 110’ers, which he characterized as a gang, pulled a
gun on a YMM member and YMM members went to kill him but it was broken up. The
witness testified that the next day Davis was shot by Fortia. A YMM member testifying to
a shooting, stated “like we just felt, like, it was just the time—around that time, like,
everybody just was, like, testing us. We was, like, if you just mess with us wrong, you was
getting it.”
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The government provided evidence that YMM engaged in daily drug
trafficking over a period of several years. Drug-trafficking is a type of
economic activity that has been recognized to substantially affect interstate
commerce in the aggregate. See Taylor v. United States, 136 S. Ct. 2074, 2080
(2016) (“The production, possession, and distribution of controlled
substances constitute a class of activities that in the aggregate substantially
affect interstate commerce[.]”) (citation and internal quotation marks
omitted). Considering the government’s demonstration of very extensive
and long-term engagement in drug trafficking, a rational jury could have
concluded beyond a reasonable doubt that YMM’s activities had at least a
minimal impact on interstate commerce.
Defendants also argue that the government failed to prove each
Defendant’s individual participation in the RICO conspiracy. Conspiracies
must feature an agreement, although the agreement can be informal and
unspoken. United States v. Sanders, 952 F.3d 263, 274 (5th Cir. 2020). The
agreement can be proven by circumstantial evidence alone, but cannot be
“lightly inferred.” Id. at 273–74. “Once the government presents evidence
of a conspiracy, it only needs to produce slight evidence to connect an
individual to the conspiracy.” United States v. Virgen-Moreno, 265 F.3d 276,
285 (5th Cir. 2001). A defendant can be convicted of conspiracy even if “he
only participated at one level . . . and only played a minor role.” United States
v. Posada-Rios, 158 F.3d 832, 858 (5th Cir. 1998).
The government offered testimony demonstrating that Allen, Fortia,
and Keelen were YMM members. The government has offered evidence that
all three engaged in at least two instances of racketeering activity in concert
with other YMM members or to benefit YMM. First, there is testimony
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stating that all three were engaged in drug-trafficking. 3 Additionally, there
was evidence that all were involved in violent crime on behalf of YMM, as
will be discussed in greater depth in the following section concerning
Defendants’ VICAR convictions.
The government provided evidence that Allen was involved in several
shootings. There is sufficient evidence demonstrating concerted activity
between Allen and others to commit a pattern of racketeering activity. For
example, a witness testified that Allen drove a car during a shooting at
members of a rival group in retaliation for acts committed by that group’s
members. A member testified that Allen called him to organize a shooting of
their rivals, which was then jointly executed. This suffices to show that Allen
engaged in a RICO conspiracy.
The burden is similarly met for Fortia. For example, there is testimony
that he perpetrated two shootings on YMM’s behalf: wounding 110’er
Ronnie Davis after Davis quarreled with YMM members, and killing Vennie
Smith, suspected of affiliating with the 110’ers. Finally, the government has
met its burden for Keelen. A witness testified that Keelen said he had
committed two murders. Another member testified that Keelen
accompanied YMM members for a shooting.
The government therefore sufficiently proved Allen, Fortia, and
Keelen’s involvement in a RICO conspiracy. We affirm their convictions
under 18 U.S.C. § 1962(d).
3
Four witnesses all testified that Allen sold drugs every day or almost every day. A
witness testified that he “could count on one hand how many times” he saw Fortia sell
crack. A witness testified that Keelen sold drugs every day. Two witnesses testified that
they witnessed Keelen sell drugs a few times. Another witness testified that he saw Keelen
sell drugs one time.
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E. VICAR Convictions
Fortia, Keelen, and Allen challenge their VICAR convictions under 18
U.S.C. § 1959(a)(3) (assault with a dangerous weapon in aid of racketeering)
and § 1959(a)(1) (murder in aid of racketeering).
VICAR states that “[w]hoever . . . for the purpose of gaining entrance
to or maintaining or increasing position in an enterprise engaged in
racketeering activity . . . murders . . . [or] assaults with a dangerous
weapon . . . any individual in violation of the laws of any State or
the United States . . . shall be punished[.]” 18 U.S.C. § 1959(a), see also
United States v. Hinojosa, 463 F. App’x 432, 449 (5th Cir. 2012). The
government must prove the following four elements:
(1) that a criminal organization exists; (2) that this organization
is a racketeering enterprise; (3) that the defendant committed
a violent crime; and (4) that the defendant acted for the
purpose of promoting his position in a racketeering enterprise.
Hinojosa, 463 F.App’x at 449 (quotation marks and brackets omitted).
First, Defendants argue that the government failed to prove the
existence of an enterprise that affected interstate commerce, as is required to
prove a violation of VICAR. 18 U.S.C. § 1959(b)(2). “Courts treat [the
definition of enterprise under VICAR] as identical to RICO.” Hinojosa, 463
F. App’x at 449 n.9. Accordingly, our analysis from the previous section is
equally applicable here. Just as the government sufficiently proved the
existence of an enterprise affecting interstate commerce for RICO purposes,
the government met its burden of proof for VICAR purposes. Similarly, the
evidence presented by the government that YMM was engaged in drug
trafficking and gang violence suffices to show that the enterprise was involved
in racketeering.
Defendants argue that the government failed to prove that they
committed the violent crimes in question and that the crimes had the purpose
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of promoting their positions in the enterprise. We review for sufficiency of
the evidence.
The government provided adequate proof that Defendants committed
the violent offenses under VICAR. For each count, the government also
provided testimony from which a reasonable jury could surmise that the
crime was related to Defendants’ positions in YMM as an enterprise.
1. Counts 4-5: Shooting of Reginald Turner by Allen
On October 18, 2011, Reginald Turner was shot by individuals in a
van. Turner’s mother told police she heard approximately 20 shots before
Turner ran inside bleeding. Turner was with four others when shot. A YMM
member testified that he was aware of a shooting in October 2011 and other
members told him that they shot at the 110’ers in the 10th Ward and that
Allen drove. The 110’ers were a rival gang of YMM. Another member
testified he knew of a shooting on October 18, 2011 involving a van and the
110’ers in the 10th Ward using an FN brand firearm. The pistol casings
recovered from that shooting matched an FN that Allen used during a
subsequent shooting.
2. Counts 6-7: Shooting of Jevarion Jones by Allen
A witness testified that Allen told him that he had shot Jones with an
FN handgun while he rode a bike. Jones testified he sold drugs in the same
area out of which YMM operated. A YMM member testified that there was
a dispute with Jones because Jones tried to kill Allen.
3. Count 8: Murder of Vennie Smith by Allen and Fortia
On the day Smith was shot, a witness stated he was with Allen when
Allen got a call and then drove off with Fortia and Keelen. Forty-five minutes
later, the same witness was at a block party when Allen and Fortia returned,
and he heard Fortia say, “I think I shot him in his chest.” That day, he saw
Allen stash a .45 caliber pistol in a vacant house. Five .45 caliber casings were
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found at the crime scene. Another witness testified that Fortia told her he
killed Smith because he thought Smith “was crossing him with the 10th
Ward.” A different witness testified that Keelen identified a firearm in the
YMM stash as the one Allen and Fortia used to kill Smith.
4. Counts 10, 12-13: Murder of Dashawn Hartford and Shooting of
Charles Perry by Allen
Charles Perry testified that he and Hartford were outside a bar when
Perry was suddenly shot from behind in the legs and Hartford was fatally shot
in the back. A witness testified that she was at the bar that night and followed
Allen outside. She testified that Allen pushed her to the ground and began
shooting Hartford with two pistols. A YMM member testified with regard to
the shooting that everyone was “testing” YMM at that time, and so when
anyone “mess[ed] with us wrong, you was getting it. If you was saying you
was beefing with us, we was coming.”
5. Count 14: Shooting of Jeffrey Sylvester by Allen
A member of the “Mid-City Killers” (“MCK”), another gang that
was allied with YMM, testified that he and Allen used a stolen truck to hunt
for Isaac Jones, a Gert Town gang member who had killed several MCK
members. The witness said that they spotted Sylvester, a friend of Jones, stop
at a red light, and open fire on Sylvester. The witness testified that Allen fired
an assault rifle. When Sylvester escaped with a graze wound, they hid the
guns in another member’s stash spot and dispersed. Another MCK member
corroborated this account.
6. Counts 15-16: Shooting of Jaquel Variste by Allen
A YMM member testified that Jevarion Jones had tried to kill Allen,
so YMM was feuding with Jones. Jones testified that he sold drugs in the
same area that YMM operated in. Jones also testified that he was at St.
Andrew and Liberty, standing half a block away from Variste when she was
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shot. Police testified that Variste told them that she was with Jones and other
friends when three men exited a car, shot into the crowd, and she was hit
while fleeing. A YMM member testified Allen called him that night and said
they were going to go “spin,” meaning shooting at people. He testified that
Allen used an AK-47 to fire at Jones.
7. Counts 17-18: Shooting of Ronald Thompson and Kentrell McGinnis by
Allen
Thompson testified that he was a member of a gang called the Scar
Squad Mafia and sold drugs at the time he was shot. He testified that the gang
was also located Uptown, around what is referred to as the 11th Ward. He
said he and McGinnis were shot near Washington Avenue and Annunciation
Street at the same time. McGinnis testified that he was alone, but that he was
shot in the same place at the same time. A YMM member testified that the
same night, he came to see Thompson in the hospital and was “talking shit
to” Thompson. He said that when, the next day, Allen and an MCK member
visited him, he mentioned he saw Thompson in the hospital, and Allen
replied, “that’s my work.” Pistol casings from this shooting matched casings
from two other shootings that night involving Allen.
8. Counts 19-20: Shooting of Terrence Pollard and Brandon Turner by
Allen
Police testified that Pollard told police that he was on a porch on
Second Street with friends when four men drove up and opened fire on him,
hitting him in the wrist. Pollard testified that he was on his way to his
mother’s house on Second Street when he was shot in the wrist. A witness
testified that he was with Pollard playing cards on a friend’s porch around
Second Street when about four people in a car pulled up. A witness saw they
had guns and ran, he heard shooting, and later found out Pollard had been
shot. The witness also testified that he was in a group of friends that sold
drugs. Turner testified that he was by himself walking down Second Street
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when a car pulled up behind him and someone he didn’t see shot him in the
leg.
A YMM member testified, “I was outside when [Dwayne and Allen]
went to shoot at [Pollard]’s cousin.” Ballistic evidence showed that casings
from a shooting near Second Street matched the two other shootings that
night involving Allen.
9. Counts 21-25: Murder of Lawrence Burt and Vivian Snyder and
Shooting of Joseph Banister by Keelen
Joseph Banister testified that he was driving Burt and stopped to speak
with his aunt, Snyder, in front of her house, when he saw a man with his face
covered exit a car, raise an AK-47, and start firing. Snyder was hit in the head,
and the shooter ran up and shot Banister and Burt twice each, then shot
Banister another four times as he ran. According to Banister, the shooter
stopped, stood over Banister, and expressed frustration that Banister was not
the right person. Banister also testified that McClaren later told him that the
shooter was targeting someone else, “G-Money,” whom they believed was
in the car. Jones testified around that time he was friends with Ben Watson,
who Banister had dropped off earlier that night.
A witness testified that Keelen called to ask for a gun after Jones pulled
a gun on Keelen. A YMM member testified that Keelen also told him that
Jones pulled a gun on him, and he saw Keelen retrieve an AK-47 before
leaving with another MCK member. He testified that after the shooting,
Keelen admitted that he went looking for Jones because another member told
Keelen to “free” Allen and that “going around there” would make it look
like different people did “[w]hatever shooting occurred on St. Andrew.”
The day after the shooting, Keelen told a witness he was under the influence
of pills “last night and I made a mistake and killed Ms. Snyder.” Another
YMM member testified that after he got out of jail, Keelen told him that he
and an MCK member “went around there to take the pressure off” him and
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Allen who were “in jail for a shooting around there,” and that Keelen
mistook Burt for Jones’s associate Watson and shot him with a rifle.
10. Counts 26, 28-29: Murder of Travis Thomas and shooting of Royal
Risen
Risen testified that he and Thomas left the Encore club the night of
May 6, 2013, driving onto the interstate where they were shot by unknown
assailants. A YMM member testified that in May 2013, he and other YMM
members saw Risen and Thomas at the Encore club, who were part of a group
they were feuding with, and that another member said he wanted to shoot
Risen and Thomas. The member said he, Allen, Keelen, and Scott got in a
car together, he fell asleep as Allen was driving, and awoke on the interstate
to another member shooting an AK-47 at a car with Thomas and Risen in it.
That member testified that he and others in Allen’s car followed Risen and
Travis onto the interstate, and he and Dorsey fired while Allen drove.
Defendants argue that the government failed to show that these
violent offenses had a purpose of maintaining or increasing their position in
YMM. “Although the VICAR statute does not criminalize mere retaliation
for ‘dissing’ an individual or a social organization, the statute does
criminalize violent acts committed as an integral aspect of membership in a
racketeering enterprise.” United States v. Wilson, 116 F.3d 1066, 1078 (5th
Cir. 1997), rev’d on other grounds sub nom., United States v. Brown, 161 F.3d
256 (5th Cir. 1998) (en banc). In Wilson, the court recognized that “a
reasonable jury could find that violent retaliation for acts of disrespect
promoted the goals of illegal enterprise” where gang members “carried
weapons for the express purpose of protecting themselves and their drugs
from other gangs” and aimed to protect their turf. Id. Similar facts are
present here. The government provided testimony for each of the above
violent offenses sufficient for a reasonable jury to conclude that Defendants
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committed the crimes as an integral part of membership in YMM, a gang that
trafficked drugs.
For these reasons, we affirm Defendants’ VICAR convictions.
F. Drug-trafficking Conspiracy
Fortia, Keelen, McClaren, and Scott were convicted of engaging in a
drug-trafficking conspiracy under 21 U.S.C. § 846. A drug-trafficking
conspiracy requires: “(1) the existence of an agreement between two or more
persons to violate narcotics laws, (2) knowledge of the conspiracy and intent
to join it, and (3) voluntary participation in the conspiracy.” United States v.
Nieto, 721 F.3d 357, 367 (5th Cir. 2013) (citation and quotation marks
omitted). A conspiracy can be proven by circumstantial evidence. United
States v. Sanders, 952 F.3d 263, 273 (5th Cir. 2020) (“A jury can infer from
the surrounding circumstances whether a defendant participated in and knew
of the conspiracy.”). “Once the government presents evidence of a
conspiracy, it only needs to produce slight evidence to connect an individual
to the conspiracy.” Virgen-Moreno, 265 F.3d at 285.
Defendants argue that the prosecution failed to prove the elements of
a conspiracy. We review for sufficiency of the evidence.
There is testimony establishing that all four defendants sold drugs. 4
Defendants argue that any drug dealing was not part of a conspiracy, but
individual actions undertaken by individual Defendants. However, the
government presented testimony indicating that YMM members would pool
4
See infra n.3 discussing evidence of Fortia and Keelen’s participation in drug
sales. Several witnesses testified that McClaren sold drugs. A witness testified that Scott
sold crack “[e]very other day.” Another witness stated he witnessed Scott selling cocaine
“maybe once or twice.” Someone else testified that Scott sold crack, but “not every day.”
A witness testified that Fortia sold crack a few times.
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money to buy drugs, share customers, stand next to each other to sell drugs,
and maintain their specific territory. 5
The government established for McClaren, Scott, Keelen, and Fortia
knowledge of the conspiracy, intent to join it, and voluntary participation.
Not only was McClaren implicated in a witness’s testimony regarding
pooling money to buy drugs and other concerted activity, but he was also
identified on a phone call talking to another YMM member about being
unable to sell crack. A witness testified that Scott frequently carried firearms,
including when he was selling drugs, and that he shared firearms with other
YMM members. This testimony could reasonably be used by a jury to
establish that he was sharing firearms with other YMM members for the
purpose of the drug conspiracy. A witness testified that Keelen sold drugs
every day, used the same supplier as McClaren, and that he shared guns with
other YMM members. When considering these factors together, a reasonable
jury could conclude that Keelen knew of the conspiracy and voluntarily
participated in it. The same is true for Fortia, who sold crack and marijuana,
carried YMM guns in the area where members sold drugs for “protection,”
and perpetrated two shootings on YMM’s behalf.
McClaren argues that he withdrew from the conspiracy. Withdrawal
is an affirmative defense requiring affirmative acts, not mere cessation of
activity. United States v. Heard, 709 F.3d 413, 427–28 (5th Cir. 2013).
McClaren fails to point to evidence that he took “affirmative acts
5
A member testified that drugs were pooled together by McClaren, Carter, and
Gracin, who pooled money to buy a bigger quantity. He testified they had a specific area
they sold in and other people they did not know could not sell there, and they would “run
them from around there” if someone tried to sell there. Id. Another member testified that
YMM members stood near each other to sell drugs. The first member testified the same
thing, and that they would share customers, directing them to each other.
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inconsistent with the object of the conspiracy that are communicated in a
manner reasonably calculated to reach conspirators.” See id. at 428 (citation
omitted). The jury was therefore not required to find that he had withdrawn.
McClaren additionally maintains that the district court erred by failing to
inform the jury that the withdrawal instruction was specific to him. 6 An
unobjected-to instruction is reviewed for plain error. See United States v.
Fairley, 880 F.3d 198, 208 (5th Cir. 2018). The district court’s withdrawal
instruction quoted the pattern instruction verbatim. Fifth Circuit Pattern
Jury Instructions (Criminal) § 2.18 (2019). We are unaware of any authority
requiring the district court to specify that the withdrawal instruction was
specific to McClaren. Regardless, McClaren’s evidence was insufficient to
demonstrate withdrawal, so any error was harmless.
McClaren finally argues that the district court committed reversible
error in admitting a witness’s testimony that the term “eight ball” used by
McClaren in a recorded jail call meant crack. This unobjected-to admission
is reviewed for plain error. United States v. Espino-Rangel, 242 F. App’x 219,
220 (5th Cir. 2007) (unpublished). McClaren has failed to demonstrate that
the admission of this testimony was plainly erroneous. As the witness had
familiarity with McClaren’s dealing of crack cocaine, he had a basis to
determine that an eight ball referred to crack in that instance and it was
therefore “rationally based on [his] perception.” See Fed. R. Evid. 701.
McClaren could have cross-examined the witness on his basis for opining that
an eight ball meant crack. Moreover, any potential error was harmless
because of the substantial other evidence the government had against
McClaren regarding the drug conspiracy. We affirm Keelen’s, Scott’s, and
McClaren’s convictions.
6
The jury instruction stated: “A defendant has raised the affirmative defense of
withdrawal from the conspiracy.”
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G. Fortia’s Ratification of the Conspiracies
Fortia contends that the prosecution failed to prove he ratified his
involvement with the drug and RICO conspiracies after turning eighteen.
“[A] defendant may be tried for a conspiracy which temporally overlaps his
eighteenth birthday” only if “the government can show that the defendant
ratified his involvement in the conspiracy after reaching majority.” United
States v. Tolliver, 61 F.3d 1189, 1200 (5th Cir. 1995), vacated on other grounds
sub nom., Moore v. United States, 519 U.S. 802 (1996). “A juvenile ‘ratifies’
his involvement in a conspiracy by continuing to participate in an ongoing
conspiracy after his 18th birthday. However, a person who does absolutely
nothing to further the conspiracy or to reaffirm membership in it after his
18th birthday cannot be held criminally liable as an adult in federal court.”
United States v. Peters, 283 F.3d 300, 309 (5th Cir. 2002). 7
We must first determine the proper standard of review. Fortia’s
counsel moved for judgment of acquittal under Rule 29, which generally
preserves de novo review of sufficiency of the evidence. United States v.
Shum, 496 F.3d 390, 391 (5th Cir. 2007). However, Fortia’s counsel did not
specifically raise the issue of ratification. The government maintains that
Fortia’s general objection did not preserve his claim on this issue.
7
Every other circuit that has considered this issue has also required that a
defendant ratify their membership in a conspiracy after turning eighteen. See, e.g., United
States v. Thomas, 114 F.3d 228, 264 (D.C. Cir. 1997); United States v. Wong, 40 F.3d 1347,
1365 (2d Cir. 1994); United States v. Maddox, 944 F.2d 1223 (6th Cir. 1991). Some other
circuits have analogized ratification in the conspiracy context to ratification doctrine in
contract law. See Wong, 40 F.3d at 1366 (“[J]ust as a minor legally incapable of entering a
contract may nonetheless be found to have ‘ratified’ a contract by taking actions after
attaining majority consistent with an intent to be bound by it, . . . so a defendant may ratify
his pre-eighteen participation in a conspiracy by continued participation after attaining
majority.”) (internal citations omitted).
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In United States v. Farias, we treated the question of ratification as
another element of sufficiency, noting first that the defendants preserved
their sufficiency issues by moving for judgment of acquittal, then analyzing
whether evidence supported conspiracy convictions, and then finally
considering whether the government proved that their involvement in the
conspiracy was ratified. 469 F.3d 393, 397–98 (5th Cir. 2006). Farias treated
the motion as satisfactory for preserving the ratification issue. Id. When a
defendant challenged the weight and credibility of the post-eighteenth
birthday evidence, we noted that “such attacks are improper on sufficiency
review.” Id. at 398. We also treated the ratification question as a sufficiency
question in United States v. Tolliver, stating “we must determine whether
there is sufficient evidence to show [Appellant’s] ratification of the
conspiracy after his eighteenth birthday.” 61 F.3d 1189, 1200 (5th Cir. 1995).
This court has repeatedly considered ratification arguments on appeal but
has never elaborated on whether a general Rule 29 motion preserves
ratification arguments. 8 We are unaware of any authority in other circuits
addressing this specific question.
8
In the past, we have applied plain error review to ratification arguments raised on
appeal even when Defendants moved for judgment of acquittal, but in a situation where the
newly raised argument was specifically that the court improperly failed to instruct the jury
on the ratification issue. See United States v. Harris, 740 F.3d 956, 962, 965 (5th Cir. 2014);
see also Tolliver, 61 F.3d at 1199 (reviewing a jury instruction argument for plain error).
Here, Fortia does not argue that the court failed to make a necessary instruction, but simply
that the government did not meet its evidentiary burden in proving his involvement in a
drug conspiracy. Requiring the jury to find ratification in assessing age-of-majority-
spanning conspiracies ensures that a defendant charged as an adult is not punished solely
for an act—the agreement to join the conspiracy—that he committed as a minor. But again,
in this case no party requested such an instruction or requested such a finding. Because no
objection was made to its omission, we would be obliged, as we did in Harris, 740 F.3d at
966, to deny plain error relief. However, other courts disagree. See, e.g., United States v.
Machen, 576 F. Appx. 561, 566–67 (6th Cir. 2014).
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The government contends that under 21 U.S.C. § 846, it is not
required to prove that the defendant ratified his or her participation in a
conspiracy, and argues that showing ratification is a separate prosecutorial
obligation arising only when a defendant joined a conspiracy as a minor and
turned eighteen during the conspiracy. The government argues that the
ratification issue is analogous to an extraterritoriality or improper venue
issue, which must be specifically raised. The government directs us to two
cases. In United States v. Vasquez, this court held that extraterritoriality
arguments must be raised before the district court to be preserved, but also
noted that a challenge on the basis of extraterritoriality cannot be
characterized as a challenge to the sufficiency of evidence. 899 F.3d 363, 371–
73 (5th Cir. 2018). Because ratification is an issue of sufficiency of evidence,
extraterritoriality challenges are not analogous.
In United States v. Moody, we noted that venue challenges must be
raised by the time of trial under Federal Rule of Criminal Procedure 12. 664
F. App’x 367, 368 (5th Cir. 2016) (unpublished). In United States v. Carreon-
Palacio, we observed that “[v]enue is an element of any offense; the
prosecution always bears the burden of proving that the trial is in the same
district as the crime’s commission.” 267 F.3d 381, 390 (5th Cir. 2001)
(internal quotation marks and citations omitted). While the issue of whether
venue has been proven is a jury question, “venue differs in substance from
statutory offense elements. . . . [it] only constitutes an ‘element’ of an offense
in the narrow context of what must be proven in order for a conviction to pass
constitutional muster.” Id. at 391. We recognized that “the unique character
of venue explains in part our rulings with respect to defendants’ waiver
thereof.” Id.While venue and ratification are alike in that the prosecution carries
the burden of proving both, and both are not statutory elements of an offense,
we are not persuaded that we should treat them alike for purposes of issue
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preservation. Venue, as we have explained, has a “unique character,” see id.,and Rule 12 states that objections to venue are to be made prior to trial. See
Fed. R. Crim. P. 12(b)(3) (“The following defenses, objections, and
requests must be raised by pretrial motion . . . (i) improper venue[.]”). Rule
12 does not require any such objection for ratification, and ratification, unlike
venue, would often be an inappropriate issue to raise before trial as the
government’s evidence of ratification would not have been presented yet.
Moreover, ratification, in cases where alleged conspiracies span a person’s
eighteenth birthday, is highly relevant to the offense, while venue objections
are typically unrelated to the substantive crime a person is charged with. We
are therefore similarly unpersuaded that we should treat ratification like
venue for purposes of issue preservation.
The government also generally argues that because ratification is not
an element of 21 U.S.C. § 846, Fortia needed to specifically raise the
argument in his motion for judgment of acquittal. However, “Rule 29
motions need not be specific.” 553 F.3d 821, 830 (5th Cir. 2008). The
ratification question is not a separate defect in the prosecution but instead is
a question inextricably connected to whether the government sufficiently
proved that Fortia violated 21 U.S.C. § 846. We follow our precedent that
Fortia’s general motion for judgment of acquittal preserved the ratification
issue along with all other issues of sufficiency of the evidence. We therefore
will review this ratification argument de novo.
The government cites two examples of Fortia’s post-eighteen
conduct, arguing that these instances constitute ratification of the
conspiracies. The first instance is Fortia’s murder of Vennie Smith, a man
from the Melpomene Projects. A witness stated that the reason for the killing
was that “Fortia thought that Vennie was crossing him with the 10th
Ward[.]” The second instance is Fortia’s arrest with two other passengers in
a vehicle containing a stolen firearm and a couple of cigars filled with
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marijuana that police believed that the passengers had been smoking. Police
stated that nobody admitted to owning the firearm. Fortia argues that these
instances are unrelated to drug trafficking.
While there is broad agreement among the circuits that a defendant
must do something to ratify his or her participation in a conspiracy, there
remains uncertainty as to what quality or quantum of evidence suffices to
prove ratification. For this analysis, we will follow the mandate from Peters
that the government must prove that Fortia “further[ed] the conspiracy or []
reaffirm[ed] membership in it.” Peters, 283 F.3d at 309.
Fortia’s arrest with a small amount of marijuana and a stolen firearm
is insufficient to meet that burden. The marijuana was a small quantity, and
police believed it was being used by the passengers of the car. No evidence
was presented that this marijuana was being trafficked or that Fortia was at
that time knowingly involved in any sale or purchase of drugs. It would also
be speculative to conclude that the gun was being used for drug trafficking,
and if so, that Fortia would have known of this use.
Next is the subject of Smith’s murder. The government contends that
this murder relates to drug trafficking because its purpose was to maintain
YMM’s territory. As described earlier, the government presented evidence
that the motive of the killing was related to an inter-gang dispute, and that
YMM had a purpose of selling drugs. We agree with the government that
Smith’s murder was sufficient to demonstrate Fortia’s ratification of the
drug and RICO conspiracies.
H. Drug Quantity
Keelen, McClaren, Scott, and Fortia contend that the government
failed to prove that they specifically conspired to sell 280 grams or more of
crack in violation of 21 U.S.C. § 841(a)(1). Drug quantity requiring a
mandatory minimum must be proven beyond a reasonable doubt. United
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States v. Gonzalez, 907 F.3d 869, 875 (5th Cir. 2018). The defendant’s
responsibility is limited to the amount with which he was directly involved or
that was reasonably foreseeable to him. United States v. Haines, 803 F.3d 713,
740 (5th Cir. 2015). “The government need not seize the actual amount
charged to meet its burden,” and “[t]he jury can find a drug quantity by
extrapolating from the testimony.” United States v. Walker, 750 F. App’x
324, 326 (5th Cir. 2018) (unpublished).
Defendants argue that the government has failed to prove that any
conspiracy entailed the sale of 280 grams of crack and that this amount was
foreseeable to all Defendants. They highlight that the drug quantity
calculations were the result of expert testimony explaining that generally
crack rocks are about a tenth of a gram, and that there was only one actual
crack seizure. Defendants argue that it was inappropriate to tell the jury to
take the most common quantity seized by the New Orleans Police
Department and multiply that by how often witnesses observed YMM
members selling drugs.
In this case, because very little crack was actually seized, the drug
quantity determination is reliant on the jury multiplying the average weight
of a crack rock (0.1 grams) with the frequency with which members sold
crack. We discern no clear error in the jury’s conclusion that the conspiracy
entailed the sale of at least 280 grams of crack. One member testified that he
sold crack at least five times every single day from 2007 to 2011. Even if we
assume that he began selling very late in 2007 and stopped very early in 2011,
this constitutes at least 5,475 transactions, 9 which could easily by itself be
more than 280 grams of crack even if that member was selling unusually small
quantities. Another member also testified he sold crack every day from 2007
to 2012. Another witness testified that Scott sold crack “every other day
9
This number was reached by multiplying 365 days by 3 years by 5 transactions.
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before school and after school” from 2009 until Scott was jailed, and that
McClaren sold crack from 2009 to 2012 “every other day.” Another witness
testified Keelen sold crack “every day” and that he once saw Keelen
purchase drugs from another co-conspirator’s supplier. It was permissible for
the jury to extrapolate that the entire venture totaled over 280 grams. In
United States v. Preston, this court allowed a similar sort of extrapolation,
where a jury was permitted to infer a drug quantity from testimony by
multiplying typical amounts sold by frequency of sales. 659 F. App’x 169, 174
(5th Cir. 2016).
Defendants compare this case to United States v. Daniels, 723 F.3d 562(5th Cir. 2013). There, the government seized 1.535 kilograms of cocaine
during twelve controlled buys but charged a 5-kilogram conspiracy, urging
that the seizures were “the tip of the iceberg” and telling the jury to “infer
that there were many other undocumented purchases throughout the life of
the conspiracy.” 723 F.3d 562, 571–72 (5th Cir. 2013). However, in that case,
the jury was asked to infer the existence of many other undocumented
purchases through the life of the conspiracy. Id. at 571. Here, there is
testimony from multiple members suggesting that there were daily sales of
crack occurring for years.
The question therefore is whether this amount was foreseeable to all
Defendants. Foreseeability does not automatically follow from conspiracy
membership. United States v. Puig-Infante, 19 F.3d 929, 942 (5th Cir. 1994).
A reasonable jury could have found that Keelen, McClaren, and Scott
foresaw a total amount of 280 grams of crack from the testimony establishing
that each of them dealt crack daily or every other day. Each defendant was
involved in the conspiracy, and testimony indicated that at least some YMM
members would pool money to buy drugs, share customers, stand next to
each other to sell drugs, and maintain their specific territory. The
government provided evidence of regular drug sales by YMM members over
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a span of many years, with coordination and communication between YMM
members generally. In light of the broad range of relevant evidence
presented, a reasonable jury could have found that Keelen, McClaren, and
Scott foresaw total sales of at least 280 grams of crack throughout the life of
the conspiracy.
However, we conclude that there was insufficient evidence to prove
that Fortia foresaw a total amount of 280 grams of crack. Unlike the other
Defendants, evidence of Fortia’s involvement in trafficking crack is far more
limited. The government points us to testimony stating that Fortia sold crack
“a few times” and testimony from another witness stating that she witnessed
Fortia sell crack, but without specifying amounts or frequency. Indeed, the
government acknowledged that Fortia only engaged in “minimal drug
dealing.” While “we previously have observed that an individual dealing in a
sizable amount of controlled substances ordinarily would be presumed to
recognize that the drug organization with which he deals extends beyond his
universe of involvement,” we cannot say that Fortia was either directly
involved in, or reasonably could foresee, trafficking in sizable amounts based
on the evidence provided. Cf. United States v. Arellano, 792 F. App’x 306,
310–11 (5th Cir. 2019) (unpublished) (affirming on plain error review the
jury’s conclusion that the defendant was responsible for a conspiracy
involving five kilograms of cocaine where he was in possession of 4.949
kilograms); Gonzalez, 907 F.3d at 875 (noting that the defendant was found
in possession of three kilograms of cocaine, a sizeable amount which
indicated sufficient evidence for the jury to find that he should have
reasonably foreseen he was involved in a conspiracy involving five or more
kilograms of cocaine). Unlike the other Defendants, the government does not
establish that Fortia saw or knew of drug sales by other YMM members with
sufficient regularity that the jury could surmise foreseeability. We are not
permitted to simply assume that Fortia was aware of the drug amount scope
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of the conspiracy because he participated in the conspiracy. Puig-Infante, 19
F.3d at 942.
We therefore affirm Fortia, Keelen, McClaren, and Scott’s
convictions under 21 U.S.C. § 846. We vacate Fortia’s sentence for drug-
trafficking conspiracy under 21 U.S.C. § 846 and remand for resentencing.
I. Firearms Offenses
1. Allen, Fortia, and Keelen
Allen, Fortia, and Keelen challenge convictions under 18 U.S.C.
§ 924(c), 18 U.S.C. § 924(o), and 18 U.S.C. § 924(j). 18 U.S.C. § 924(c)
prohibits using a firearm during or in furtherance of any crime of violence or
drug-trafficking crime. Under 18 U.S.C. § 924(o), “[a] person who conspires
to commit an offense under subsection (c) shall be imprisoned for not more
than 20 years, fined under this title, or both.” Finally, 18 U.S.C. § 924(j)
applies to people who cause death in the course of violation of § 924(c).
Defendants argue that their § 924 offenses must be reversed because they are
predicated on a RICO conspiracy, which is not a crime of violence under
United States v. Jones, 935 F.3d 266, 271 (5th Cir. 2019).
Review of this unpreserved claim is for plain error. Id. at 270. “Plain
error review consists of four prongs: (1) there must be an error; (2) the error
must be clear or obvious, rather than subject to reasonable dispute; (3) the
error must have affected the appellant’s substantial rights, which in the
ordinary case means he must demonstrate that it ‘affected the outcome of the
district court proceedings’; and (4) the court must decide in its discretion to
correct the error because it seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. at 271 (internal quotation marks and
citations omitted).
This case is directly analogous to Jones. In Jones, this court found that
RICO conspiracy was not a crime of violence and vacated the § 924(o)
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convictions even though there was (a) plain error review and (b) the jury
could have convicted on the § 924(o) counts by relying on a drug-trafficking
predicate. Jones, 935 F.3d at 273–74. The only way the government attempts
to distinguish this case from Jones is by noting that in this case, the jury
specifically found that Defendants violated Louisiana’s second-degree
murder statute, which is clearly a crime of violence. The government argues
that because Defendants received the sentencing enhancement under RICO,
which is based on a racketeering activity for which the maximum penalty
includes life imprisonment, this case involves “aggravated RICO” unlike
Jones.
The court applies a categorical approach, requiring “looking only to
the statutory definitions—i.e., the elements—of a defendant’s offense, and
not to the particular facts underlying the convictions.” United States v. Buck,
847 F.3d 267, 274 (5th Cir. 2017). Therefore, the specific finding by the jury
that Defendants committed a crime of violence in this case is irrelevant if that
statute itself does not require a crime of violence. The default maximum
penalty for a RICO conspiracy is twenty years. 18 U.S.C. § 1963(a). However,
an enhanced possibility of life applies if the conspiracy “is based on a
racketeering activity for which the maximum penalty includes life
imprisonment[.]” Id. Even if RICO is severable as the government claims,
the “aggravated RICO” statute does not describe a crime of violence. See 18
U.S.C. § 924(c)(iii)(a) (defining crime of violence as a felony that “has as an
element the use, attempted use, or threatened use of physical force[.]”).
The government points to several cases from other circuits that are
inapposite because they feature severable statutes where the aggravated form
of the crime required proving a crime of violence (specifically, that death
resulted). See United States v. Tsarnaev, 968 F.3d 24, 104–05 (1st Cir. 2020)
(holding that a conspiracy charge including a “death results” element was a
crime of violence); In re Hall, 979 F.3d 339, 346 (5th Cir. 2020) (holding that
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kidnapping resulting in death, requiring different elements of conviction
from the general federal crime of kidnapping, is a different offense than
generic kidnapping); United States v. Runyon, 983 F.3d 716, 725–26 (4th Cir.
2020) (also discussing a “death results” element).
We therefore conclude that this case is virtually indistinguishable
from Jones. In Jones, as in this case, the jury could have relied on a drug-
trafficking predicate to convict on § 924 offenses. 935 F.3d at 272. This court,
in conducting plain error review, held that there was a “reasonable
probability that the jury would not have convicted Appellants of the § 924
offenses if the invalid crime-of-violence predicate was not included on the
verdict form.” Id. at 274. In so holding, the court noted that the RICO
conspiracy alleged involved acts of violence going beyond the drug
conspiracy, and so “[a] reasonable probability remain[ed] that the jury relied
upon RICO conduct separate from the drug conspiracy—such as assaults and
murders for the purpose of maintaining the gang’s territory or reputation—
to convict Appellants of the challenged § 924 offenses.” Id. at 273. The same
is true in this case: we cannot determine whether the jury relied on the RICO
or drug-trafficking predicate, and because a RICO conspiracy is not a crime
of violence, the basis for conviction may have been improper. The court in
Jones also noted that defendants in that case faced significant sentences based
on their § 924 offenses, see id. at 274, which is true here as well. Keelen, for
example, faces a life sentence for his § 924(j) conviction. Therefore, we
conclude that it was plain error to permit the jury to convict Defendants
under § 924 and we reverse Allen’s, Fortia’s, and Keelen’s firearms
convictions accordingly.
Keelen was also convicted under 18 U.S.C. § 924(j), which provides
that “[a] person who, in the course of a violation of subsection (c), causes the
death of a person through the use of a firearm, shall” be punished with a
sentence dependent on whether the killing is murder or manslaughter. This
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part of the statute in fact does have a “death results” element, but it requires
a violation of subsection (c), which prohibits using a firearm during or in
furtherance of any crime of violence or drug-trafficking crime. Because a
RICO violation is not a permissible predicate offense for a subsection (c)
violation, we also reverse Keelen’s conviction under 18 U.S.C. § 924(j).
2. McClaren and Scott
McClaren and Scott argue that the government failed to prove that
they participated in a conspiracy to possess firearms under 18 U.S.C. §
924(o). We review for sufficiency of the evidence.
The government was required to prove that Defendants agreed to
violate 18 U.S.C. § 924(c), knew of the agreement’s unlawful purpose, and
joined in it willfully with the intent to further that purpose. United States v.
Walker, 750 F. App’x 324, 328 (5th Cir. 2018) (unpublished). 18 U.S.C. §
924(c) prohibits using or carrying a firearm during and in relation to a drug-
trafficking crime, as well as possession of a firearm in furtherance of a drug-
trafficking crime.
The government has adequately proved the existence of a conspiracy.
A YMM member testified that he and others in YMM became interested in
acquiring guns for protection once they began selling drugs. The member
estimated that YMM accumulated 50-55 guns between 2009 and 2013. He
testified that they shared guns, and if a member used the gun last, they bought
the bullets. Another witness testified that guns were stashed in Allen’s
grandmother’s house and in other members’ homes. Members would move
the guns if police were in the area. Another member testified that he kept
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guns nearby when he sold drugs, and would receive guns from other members
of the group, including Allen, Scott, McClaren, Fortia, and Keelen. 10
McClaren and Scott argue that the government failed to prove
concerted action and at most proved parallel illegal activity. We disagree. A
witness testified that Scott frequently carried firearms, including when he
was selling drugs, and that he shared firearms with other YMM members. A
witness also testified that McClaren stashed firearms nearby for protection
while selling drugs. Finally, testimony from a member stated that Scott and
McClaren were among the YMM members who would share guns in
furtherance of the drug conspiracy. A rational jury could have determined
that this evidence sufficed to prove that Scott and McClaren violated 18
U.S.C. § 924(o). We accordingly affirm McClaren’s and Scott’s convictions.
J. Admission of Co-Conspirator’s Plea Agreement Document
Defendants argue that they are entitled to a new trial based on the use
of Shawn Gracin’s plea agreement documents as substantive evidence of
guilt. They contend that the district court committed reversible error in ad-
mitting Gracin’s plea agreement documents. When Gracin testified, he dis-
puted the contents of his factual basis. When the government asked, “[s]o if
the factual basis says that the Young Melph Mafia was a gang—,” defense
counsel objected and argued it was “improper for the prosecutor to provide
substantive evidence of guilt against the gentlemen on trial with questions
that are supposed to be for impeachment.” The district court overruled de-
fense counsel’s objection but noted a continuing objection regarding ques-
tioning as to the factual basis. The government moved to introduce Gracin’s
factual basis as substantive evidence under Federal Rule of Evidence
10
Specifically, the prosecution asked if he received guns from “Defendants that we
just pointed out earlier in this case.” Previously, the witness visually identified Allen, Scott,
McClaren, Fortia, and Keelen.
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801(d)(1)(A), and Gracin’s factual basis was published to the jury. The pros-
ecution then questioned Gracin about most of his factual basis, essentially
taking him through it line by line.
Defendants argue that the factual basis should not have been used as
substantive evidence. We disagree. The factual basis was properly used as
substantive evidence under the Federal Rules of Evidence as a prior incon-
sistent statement. Rule 801(d)(1)(A) states that a statement is not hearsay if
“the declarant testifies and is subject to cross-examination about a prior
statement, and the statement . . . (a) is inconsistent with the declarant’s tes-
timony and was given under penalty of perjury at a trial, hearing, or other
proceeding or in deposition[.]” In United States v. Cisneros-Gutierrez, we de-
termined that a “factual resume” was properly admitted as substantive evi-
dence when the witness swore facts were true during the plea hearing and
recanted on the witness stand. 517 F.3d 751, 757–59 (5th Cir. 2008). Gracin’s
factual basis is analogous to the one in Cisneros. Gracin disputed the contents
of his factual basis at trial, and therefore it was appropriate for the court to
allow his factual basis to be used as substantive evidence. See id.Defendants, for the first time on appeal, also raise the argument that
admission of the factual basis violated the Confrontation Clause of the Sixth
Amendment. Defendants and the government disagree on the proper stand-
ard of review, but Defendants’ arguments fail under any standard. “The
Confrontation Clause provides the accused with the right to be confronted
with witnesses against him,” U.S. CONST. amend. VI. In Crawford v. Wash-
ington, the Supreme Court held that this right protects against admission of
out-of-court testimonial statements unless the witness is unavailable and
there was prior opportunity to cross-examine him. 541 U.S. 36, 59 (2004).
However, this right is not infringed when a declarant’s out-of-court state-
ments are admitted “as long as the declarant is testifying as a witness and
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subject to full and effective cross-examination.” California v. Green, 399 U.S.
149, 158 (1970). Here, Gracin was subject to cross-examination.
Defendants emphasize that the plea agreement contained statements
of unnamed cooperators who were not subject to cross-examination. How-
ever, any potential violation of the Sixth Amendment was harmless because
this evidence was cumulative. Harmless error in the Confrontation Clause
context requires a finding that “there was [no] reasonable possibility that the
evidence complained of might have contributed to the conviction.” United
States v. Alvarado-Valdez, 521 F.3d 337, 341 (5th Cir. 2008). The factual basis
contained information from three people who purchased crack from Gracin
and did not testify, which was cumulative evidence of Gracin’s own involve-
ment in the drug conspiracy, which he admitted at trial. The potentially prob-
lematic sections of the factual basis were all proven by other testimony, and
therefore there is no reasonable probability that the jury would have reached
a different conclusion had those sections been redacted. Defendants are not
entitled to a new trial because of the admission and use of the plea agreement
documents.
K. Motion for New Trial
After sentencing, the government learned that Dorsey, an MCK
member who testified for the government, may have committed another
shooting with Allen and Scott about which he did not testify. Fortia and
Keelen filed a motion for a new trial, which the district court denied. Fortia
and Keelen argue that the district court’s denial of their motion was
improper. We disagree.
The denial of a motion for new trial is reviewed for abuse of discretion,
evaluating questions of law de novo. United States v. Pratt, 807 F.3d 641, 645
(5th Cir. 2015). Under Federal Rule of Criminal Procedure 33(a), a district
court may “vacate any judgment and grant a new trial if the interest of justice
so requires.” “Motions for new trials based on newly discovered evidence
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are disfavored by the courts and therefore are viewed with great caution.”
United States v. Sullivan, 112 F.3d 180, 182–83 (5th Cir. 1997) (internal
quotation marks omitted). To receive a new trial for newly discovered
evidence, the defendant must satisfy the following prerequisites: “(1) the
evidence was newly discovered and unknown to the defendant at the time of
the trial; (2) failure to detect the evidence was not a result of lack of due
diligence by the defendant; (3) the evidence is material, not merely
cumulative or impeaching; and (4) the evidence will probably produce an
acquittal.” United States v. Ardoin, 19 F.3d 177, 181 (5th Cir. 1994).
Fortia argues that this evidence is material to whether or not Dorsey
committed the Smith murder himself. However, Fortia’s conviction for
killing Smith was supported by two other witnesses’ testimony that Fortia
claimed to have killed Smith. The disclosure of Dorsey’s involvement in
another shooting does not undermine their testimony and therefore is
unlikely to result in an acquittal.
Keelen notes that Dorsey provided the majority of the testimony
against Keelen. Keelen argues that further evidence of Dorsey’s
untruthfulness would have been highly relevant to his credibility to the jury.
Newly discovered evidence is not material if its only evidentiary purpose is
to impeach trial testimony. United States v. Eghobor, 812 F.3d 352, 363 (5th
Cir. 2015). Mere impeachment evidence that only casts doubt on the veracity
of a witness’s testimony and demonstrates a bias on his part “is insufficient
to entitle a defendant to a new trial.” Id.; see United States v. Garcia-Esparza,
388 F. App’x 407, 408 (5th Cir. 2010) (evidence introduced to show a
witness “lied extensively on the witness stand . . . is impeaching and not a
basis for a new trial”). Dorsey was not an untarnished witness whose
credibility later came into question; Dorsey was a gang member who admitted
to previously lying to the government and believed testifying would help
reduce his sentence.
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We therefore disagree with Defendants that the evidence was neither
merely impeaching nor cumulative and that it would probably produce an
acquittal. See Ardoin, 19 F.3d at 181. We accordingly affirm the district
court’s denial of Defendants’ motion for a new trial.
L. Sentencing
Finally, Scott and McClaren challenge their sentences. McClaren
argues that his 192-month concurrent sentence for drug-trafficking and
firearms conspiracies is unreasonable. This court reviews sentences first for
procedural error and then for substantive reasonableness. United States v.
Alvarado, 691 F.3d 592, 596 (5th Cir. 2012). Here, no procedural errors are
alleged. We therefore consider the reasonableness of the sentence under the
abuse of discretion standard. Id. We presume sentences within the properly
calculated guidelines range to be reasonable and “infer that the judge has
considered all the factors for a fair sentence set forth in the Guidelines.” Id.To rebut the presumption of reasonableness, a defendant must show the
district court did not account for a factor that should have received significant
weight, gave significant weight to an improper factor, or clearly erred in
balancing the sentencing factors. Id.McClaren has not shown that the district court abused its discretion.
McClaren’s offense level 32 and criminal history category IV produced a
guideline range for Counts 2 and 3 of 168 to 210 months. McClaren received
a concurrent sentence of 192 months. His sentence was within the guidelines
and is therefore presumptively reasonable. Alvarado, 691 F.3d at 597.
McClaren was not given an upward departure and has not pointed to any
evidence suggesting that the district court improperly weighed factors.
Therefore, under our precedent, McClaren’s sentence was not
unreasonable.
Scott argues that he is eligible for a sentence reduction under the First
Step Act, Pub. L. No. 115-391; 132 Stat. 5194, 5220–21 (2018). Under §
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401(c) of the First Step Act, § 401 applies to offenses committed prior to
enactment “if a sentence for the offense has not been imposed as of such date
of enactment.” Scott was sentenced on November 16, 2017. The Act was
enacted on December 21, 2018. The Fifth Circuit has already rejected Scott’s
argument that the benefits of this statute apply to cases that are still being
appealed given the clear language of § 401(c). United States v. Staggers, 961
F.3d 745, 753–54 (5th Cir. 2020) (noting that “[a] sentence is imposed when
it is pronounced by the district court and not, as [the defendants] would have
it, when the appellate process comes to an end”). Therefore, Scott is not
statutorily eligible for a sentence reduction.
III. CONCLUSION
For the aforementioned reasons, we AFFIRM Defendants’
convictions under VICAR and RICO. We VACATE Fortia’s sentence for
drug-trafficking conspiracy under 21 U.S.C. § 846 and REMAND for
resentencing. We AFFIRM Keelen, McClaren, and Scott’s drug-trafficking
conspiracy convictions under 21 U.S.C. § 846 and AFFIRM their
sentences. We VACATE Allen, Fortia, and Keelen’s firearms convictions
under 18 U.S.C. § 924. We AFFIRM McClaren and Scott’s firearm
convictions under 18 U.S.C. § 924(o). An appendix is attached explaining the
outcome for each specific conviction.
IV. APPENDIX
Allen
RICO Conspiracy (18 U.S.C. § 1962(d)) AFFIRM
Conspiracy to possess firearms (18 U.S.C. § 924(o)) VACATE
Assault with a dangerous weapon in aid of racketeering (18 AFFIRM
U.S.C. § 1959(a)(3))
Use and carrying firearm during and in relation to a crime of VACATE
violence and drug-trafficking crime (18 U.S.C. § 924(c))
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Use and carrying firearm during and in relation to a crime of VACATE
violence and drug-trafficking crime (18 U.S.C. § 924(c))
Murder in aid of racketeering (18 U.S.C. § 1959(a)(1)) AFFIRM
Fortia
RICO Conspiracy (18 U.S.C. § 1962(d)) AFFIRM
Drug-trafficking conspiracy (21 U.S.C. § 846) AFFIRM
CONVICTION,
VACATE
SENTENCE &
REMAND
Conspiracy to possess firearms (18 U.S.C. § 924(o)) VACATE
Murder in aid of racketeering (18 U.S.C. § 1959(a)(1)) AFFIRM
Keelen
RICO Conspiracy (18 U.S.C. § 1962(d)) AFFIRM
Drug-trafficking conspiracy (21 U.S.C. § 846) AFFIRM
Conspiracy to possess firearms (18 U.S.C. § 924(o)) VACATE
Murder in aid of racketeering (18 U.S.C. § 1959(a)(1)) AFFIRM
Causing death through the use of a firearm (18 U.S.C. § 924(j)) VACATE
Assault with a dangerous weapon in aid of racketeering (18 AFFIRM
U.S.C. § 1959(a)(3))
Use and carrying firearm during and in relation to a crime of VACATE
violence and drug-trafficking crime (18 U.S.C. § 924(c))
McClaren
Drug-trafficking conspiracy (21 U.S.C. § 846) AFFIRM
Conspiracy to possess firearms (18 U.S.C. § 924(o)) AFFIRM
Scott
Drug-trafficking conspiracy (21 U.S.C. § 846) AFFIRM
Conspiracy to possess firearms (18 U.S.C. § 924(o)) AFFIRM
40