United States v. Hankton ( 2022 )

Case: 16-30995 Document: 00516508469 Page: 1 Date Filed: 10/14/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 14, 2022
No. 16-30995 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Telly Hankton; Walter Porter; Kevin Jackson; Andre
Hankton,
Defendants—Appellants.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:12-CR-1
Before Dennis, Southwick, and Wilson, Circuit Judges.
Cory T. Wilson, Circuit Judge:
Telly Hankton, Andre Hankton, 1 Walter Porter, and Kevin Jackson
were convicted of numerous crimes stemming from their participation in a
violent New Orleans street gang. We affirm their convictions in large part,
vacate in part, and remand for further proceedings.
1
Telly and Andre are cousins who share a last name. For ease of reference, we
refer to them hereafter by their first names.
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I. General Background 2
The defendants were members of the Hankton Enterprise, a gang led
by Telly that sold drugs in the Central City neighborhood of New Orleans.
In January 2004, a turf war erupted between the Hankton Enterprise and a
rival gang led by Brian Broussard. The feud sparked several shootings and
led to at least seven murders. In particular, four violent interactions form the
basis of many of the defendants’ convictions: (1) the murder of Darnell
Stewart, (2) the murder of Jesse Reed, (3) the attempted murder of a daquiri
shop owner, and (4) the murder of the daquiri shop owner’s brother.
Stewart and Reed were members of Broussard’s gang; they killed
Hankton Enterprise member George Hankton 3 on December 17, 2007. A few
months after George’s murder, Andre—with Telly riding in the passenger
seat—tailed a vehicle driven by Stewart down the “neutral ground” of
Claiborne Avenue. Shortly, Stewart exited his still-moving vehicle, which
crashed into a dumpster, and took off on foot across the street toward a
daquiri shop. Andre stopped next to Stewart’s vehicle, and Telly jumped out
and gave chase. Before Telly could reach Stewart, Andre hit the gas and
rammed his vehicle into Stewart, causing him to fly “end over end” into the
air and collapse on the ground. As Stewart lay there, Telly stood over him
and shot him approximately ten times before running away. With Stewart
dead, Andre sped off in a different direction. After the murder, the owner of
the daquiri shop, who witnessed the crime, provided video surveillance
footage from the store’s security cameras to the police.
Biding time, Telly hired Porter about a year later to murder Reed in
further payback for George’s death. Because Porter did not know what Reed
2
The recounted facts are drawn from the testimony adduced during trial.
3
George Hankton was Andre’s brother and Telly’s cousin.
2
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looked like, he met Telly and Jackson on June 20, 2009, to hunt for Reed
together. When they found Reed outside a restaurant, all three men exited
Telly’s vehicle and began shooting. Jackson shot into a crowd of people,
Telly shot Reed’s legs, and Porter unloaded “both of his clips from both of
his guns in [Reed’s] face and body.” Reed was shot 50 times and died from
his injuries.
A few months later, Telly, who was in prison for his involvement in
Reed’s murder, ordered the killing of the daquiri shop owner who provided
the video footage of Stewart’s murder to the police. In October 2010, a
Hankton Enterprise member shot the daquiri shop owner 17 times but did not
kill him. A year later, Porter shot and killed the daquiri shop owner’s brother,
ostensibly a revenge killing as well.
On June 19, 2014, a federal grand jury in the Eastern District of
Louisiana indicted Telly, Andre, Porter, Jackson, and nine others 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) in a 24-
count indictment. 4 Two years later, the district court held a three-week trial
that included dozens of exhibits and testimony from over 70 witnesses. The
jury convicted the defendants on some charges and acquitted them on others.
4
Telly, Andre, Porter, and Jackson were not charged in Counts 19, 20, and 24.
Counts 19 and 20 charged three other defendants with Conspiracy to Commit Misprision
of a Felony and with Accessory After the Fact to Murder. Count 24 charged a different
defendant with perjury. Telly and two other defendants were charged in Count 23 with
Conspiracy to Launder Money, but Telly does not challenge his money laundering
conspiracy conviction on appeal. Telly, Andre, Porter, and Jackson’s nine co-defendants
pled guilty and are not parties to this appeal.
3
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In November 2016, the district court sentenced the defendants. Their
convictions and resulting sentences are summarized in the following chart:
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Telly Porter Andre Jackson
Count 1: RICO Conspiracy Life Life Life
Count 2: Conspiracy to Distribute Life Acquitted
Controlled Substances
Count 3: Conspiracy to Possess Firearms 240 months 240 months 240 months Acquitted
(18 U.S.C. § 924(o))
Count 4: Conspiracy to Obstruct Justice 240 months
Count 5: Murdering Darvin Bessie in Aid Life
of Racketeering
Count 6: Causing Bessie’s Death Through Life
the Use of a Firearm (18 U.S.C. § 924(j))
Count 7: Murdering Stewart in Aid of Life Acquitted
Racketeering
Count 8: Causing Stewart’s Death Life Life
Through the Use of a Firearm (18 U.S.C.
§ 924(j))
Count 9: Possession of Sawed-Off Shotgun 120 months
Count 10: Murdering Reed in Aid of Life Life Life
Racketeering
Count 11: Causing Reed’s Death Through Life Life Acquitted
the Use of a Firearm (18 U.S.C. § 924(j))
Count 12: Murdering Hasan Williams’s in Life
Aid of Racketeering
Count 13: Causing Williams’s Death Life
Through the Use of a Firearm (18 U.S.C.
§ 924(j))
Count 14: Felon in Possession of a Firearm 120 months
Count 15: Assaulting the Daquiri Shop Acquitted 240 months
Owner with a Dangerous Weapon in Aid of
Racketeering
Count 16: Use and Carrying of a Firearm Acquitted 120 months
During and in Relation to a Crime of
Violence and a Drug Trafficking Crime
against the Daquiri Shop Owner (18 U.S.C.
§ 924(c))
Count 17: Murdering the Daquiri Shop Life
Owner’s Brother in Aid of Racketeering
Count 18: Causing the Daquiri Shop Life
Owner’s Brother’s Death Through the
Use of a Firearm (18 U.S.C. § 924(j))
Count 21: Felon in Possession of a Firearm 120 months
Count 22: Felon in Possession of a Firearm 120 months
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The defendants filed timely notices of appeal, raising a number of
issues: (1) Andre, Porter, and Telly challenge their convictions under 18
U.S.C. § 924; (2) Andre and Telly contend their restitution order should be
vacated; (3) Telly challenges the admission of various evidence at trial;
(4) Porter contends that the district court erred in concluding that he was
competent to stand trial; (5) Telly, Porter, and Jackson assert that the district
court erred in denying their motions to sever their trials; (6) all four
defendants contend that the district court erred in denying their motions for
sanctions or dismissal of the second superseding indictment after an alleged
leak of grand jury information to a New Orleans newspaper; (7) Jackson
contends that the district court erred by neglecting to instruct the jury that it
was required unanimously to find him guilty of Reed’s murder either as a
principal or as an accomplice; (8) Jackson challenges the sufficiency of the
evidence to support his convictions for RICO conspiracy and for murdering
Reed; and (9) Andre, Porter, and Jackson assert that cumulative errors
mandate reversal. We discuss each issue and additional facts specific to the
defendants’ contentions in turn.
II. Discussion
A. Andre & Porter’s 18 U.S.C. § 924 Convictions
Andre and Porter challenge their convictions under the Federal Gun
Control Act, 18 U.S.C. § 924. Specifically, Porter was convicted of violating
§§ 924(c), 924(j), and 924(o) (Counts 3, 11, 13, 16, and 18); Andre was
convicted of violating §§ 924(j) and 924(o) (Counts 3 and 8). Section 924(c)
“threatens long prison sentences for anyone who uses a firearm in
connection with” any crime of violence or drug trafficking crime. United
States v. Davis, 139 S. Ct. 2319, 2323, 2327 (2019). Section 924(j) “applies
to people who cause death in the course of [a] violation of § 924(c).” United
States v. McClaren, 13 F.4th 386, 412–13 (5th Cir. 2021). Finally, § 924(o)
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provides that “[a] person who conspires to commit an offense under
subsection (c) shall be imprisoned for not more than 20 years.” Andre and
Porter contend, and the Government acknowledges, that their § 924
convictions may have been erroneously predicated on a RICO conspiracy,
which is not a crime of violence. See United States v. Jones, 935 F.3d 266, 271
(5th Cir. 2019).
We review this unpreserved claim for plain error. McClaren, 13 F.4th
at 413. To prevail, an appellant must clear four hurdles:
(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 affect[s] the fairness, integrity or public
reputation of judicial proceedings.”
Jones, 935 F.3d at 271 (quoting Puckett v. United States, 556 U.S. 129, 135
(2009)) (internal quotation marks omitted).
In Jones, gang members were convicted of “racketeering, drug, and
firearm offenses—including several offenses under 18 U.S.C. § 924.” Id. at
268. “For each § 924 offense, the indictment charged a [RICO] conspiracy
. . . as a predicate crime of violence, and a controlled-substance conspiracy
. . . as a predicate drug trafficking crime.” Id. at 269. “The verdict form did
not require the jury to specify which predicate offense or offenses it relied
upon in convicting [the] [a]ppellants of the § 924 offenses.” Id. On appeal,
the Jones appellants contended that their § 924(c) convictions could not be
predicated on RICO conspiracy because RICO conspiracy is not a crime of
violence under Davis. Id. Reviewing for plain error, the Jones panel
ultimately agreed and concluded that there was “a reasonable probability
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that, but for the error, the outcome of the proceeding would have been
different.” Id. at 272 (citing Molina-Martinez v. United States, 578 U.S. 189,
194 (2016)) (internal quotation marks omitted). Specifically, “the jury could
have convicted on the § 924 counts by relying on either the invalid crime of
violence predicate[, i.e., RICO conspiracy,] or [an] alternative drug
trafficking predicate.” Id. The court vacated the convictions because “the
Davis error . . . increased [the] [a]ppellants’ sentences significantly and even
resulted in additional life sentences for” some of them. Id. at 271.
We face an identical situation. It was a “clear or obvious” error to
permit the jury to convict Andre and Porter under § 924 without specifying
which conspiracy was the predicate offense. Id.; see McClaren, 13 F.4th at
412–14. And the error affected Andre’s and Porter’s substantial rights. Each
§ 924 count under which Porter and Andre were charged was predicated on
the charged RICO conspiracy and the alleged conspiracy to distribute
controlled substances. Because “[t]he verdict form did not require the jury
to specify which predicate offense or offenses it relied upon,” Jones, 935 F.3d
at 269, there is a reasonable probability that the jury improperly relied on
“nonviolent” RICO conduct to convict Andre and Porter under § 924, see id.
at 273; McClaren, 13 F.4th at 414. As in Jones, we choose to correct the Davis
error because Andre and Porter each potentially received additional life
sentences as a result. See Jones, 935 F.3d at 271.
The wrinkle is that the parties disagree as to the proper remedy.
Porter contends that his convictions should simply be vacated, Andre argues
that his § 924 convictions should be reversed, and the Government asserts
that the convictions should be vacated and remanded for further proceedings.
As to Porter at least, we follow Jones and vacate his § 924 convictions and
remand for a new trial. But Andre contends that reversal of his § 924
convictions is required because there is insufficient evidence to support them
based solely on a drug trafficking conspiracy predicate.
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At trial, Andre moved for judgment of acquittal at the close of all
evidence. He asserted that there was insufficient evidence to convict him
under § 924(j) or § 924(o) because multiple witnesses testified that “they
never knew Andre, they didn’t buy any drugs from Andre, and [Andre] was
not actively involved” in the RICO conspiracy or the drug trafficking
conspiracy. The district court denied the motion, reasoning that “[i]t is not
the Court’s responsibility to take the case away from the jury unless the
Court finds that no rational juror could have found the way it did.” Reprising
his sufficiency challenge on appeal, Andre contends that once the RICO
conspiracy conviction is removed from the calculus, he is entitled to acquittal
on his § 924 charges, such that remanding for a new trial would be improper.
“[A]fter the close of all the evidence, the court on the defendant’s
motion must enter a judgment of acquittal of any offense for which the
evidence is insufficient to sustain a conviction.” Fed. R. Crim. P. 29(a).
Moving for acquittal under Rule 29(a) preserves a sufficiency challenge for
appeal. United States v. Evans, 892 F.3d 692, 702 (5th Cir. 2018). We review
these challenges “de novo but ‘highly deferential to the verdict.’” Jones, 873
F.3d at 489 (quoting United States v. Beacham, 774 F.3d 267, 272 (5th Cir.
2014); see United States v. Delgado, 672 F.3d 320, 330 (5th Cir. 2012) (en
banc). We may reverse a conviction only when “no rational jury could have
found the offenses’ essential elements proven beyond a reasonable doubt.”
McClaren, 14 F.4th at 400 (citing United States v. Bowen, 818 F.3d 179, 186
(5th Cir. 2016)). “[A]ppellate court reversal of a conviction for insufficient
evidence is the functional equivalent of a verdict of acquittal and thus bars
reprosecution for the same offense.” United States v. Miller, 952 F.2d 866,
871 (5th Cir. 1992) (citing Burks v. United States, 437 U.S. 1, 10–18 (1978)).
Andre argues that there is insufficient evidence to conclude that he
knew about the drug trafficking conspiracy and acted with intent to further
that conspiracy. Regarding his § 924(o) conviction, Andre asserts that mere
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involvement with Telly in Stewart’s murder “is insufficient to prove that
they also worked together to possess firearms” in furtherance of the drug
trafficking conspiracy. As to his § 924(j) conviction, Andre contends that no
rational juror could convict him based solely on a drug trafficking conspiracy
predicate because there is no evidence that he specifically intended to further
that conspiracy by aiding and abetting Telly in murdering Stewart.
The Government counters by pointing to testimony that the Hankton
family was well known for selling drugs and for violence, other family
members participated in the drug conspiracy, and Telly’s feud with
Broussard spanned three years and was widely known. Notably, Andre does
not dispute that he was driving the car that struck Stewart, he intended to kill
Stewart, Telly was in the car with him shortly before he struck Stewart, and
Telly exited the car and shot Stewart multiple times after Andre rammed
Stewart with the car. Andre disputes only that he had knowledge of the
Hankton drug trafficking conspiracy or the intent to further it.
We cannot say at this juncture that no reasonable juror could find
Andre guilty under either § 924(j) or § 924(o) based on a drug trafficking
conspiracy predicate. See Fed. R. Crim. P. 29(a); McClaren, 13 F.4th at
400; Delgado, 672 F.3d at 330. It is true that, as Andre argues, there was
unrebutted evidence that he did not sell drugs; he was a merchant marine
who was absent from New Orleans for extended periods; and he helped Telly
murder Stewart as retaliation for Stewart’s murdering Andre’s brother. But
an individual co-conspirator’s engaging in drug dealing itself is not a
prerequisite for participation in a drug trafficking conspiracy. The jury could
have believed that Andre did not sell drugs, but also believed that he acted in
furtherance of the conspiracy in other ways—such as participating in the
murder of Stewart. Likewise, his absence for periods of time did not preclude
his knowledge of and participation in the conspiracy. On balance, the
evidence, viewed in the light most favorable to the verdict, is sufficient to find
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that Andre had knowledge of the drug trafficking conspiracy, given Andre’s
relation to drug-dealers Telly and George, the notoriety of the Hankton
Enterprise, and that Andre and Telly tracked down and murdered one of
Telly’s drug trade rivals together.
Andre’s intent is a closer question. The Government cites no
evidence explicitly substantiating Andre’s intent, while Andre points to
evidence that he helped Telly kill Stewart solely to avenge George Hankton’s
murder. But even if the jury agreed that Andre’s involvement in Stewart’s
death was motivated by revenge, a reasonable juror could also conclude that
Andre intended to further Telly’s drug trafficking conspiracy as well.
Importantly, the jury was entitled to weigh and disregard the evidence that
Andre cites, which it evidently did. At this stage, the court’s analysis must
focus on the evidence that supports the verdict—not that which goes against
it. See United States v. Flax, 988 F.3d 1068, 1075 (8th Cir. 2021) (holding that
there was sufficient evidence to support a conviction when “the jury was
permitted to accept or reject the[] theories at trial” that were later advanced
on appeal, even if the evidence “rationally supports conflicting hypotheses”
(quotation omitted)). Through that lens, we conclude that the evidence of
Andre’s knowledge of and involvement in the drug trafficking conspiracy is
sufficient to merit a remand of his § 924 charges for a new trial.
In sum, we vacate both Porter’s and Andre’s § 924 convictions under
Counts 3, 8, 11, 13, 16, and 18, and remand for further proceedings.
B. Telly’s § 924 Convictions
In challenging his § 924 convictions under Counts 3, 6, 8, 11, and 16,
Telly purports to adopt Andre’s and Porter’s Davis error arguments. See
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Fed. R. Civ. P. 28(i). 5 The Government contests whether adoption is
permissible, contending that the fact-specific nature of the Davis issue
requires Telly to assert independent arguments on appeal. We conclude that
Telly may properly raise his Davis challenge by adopting his codefendants’
arguments.
“In a case involving more than one appellant or appellee, . . . any party
may adopt by reference a part of another’s brief.” Fed. R. App. P. 28(i).
However, fact-specific challenges to a defendant’s conviction may not be
adopted by a co-defendant on appeal. United States v. Solis, 299 F.3d 420,
434 n.3 (5th Cir. 2002); United States v. Alix, 86 F.3d 429, 434 n.2 (5th Cir.
1996). Severance issues, for example, are fact-specific, Solis, 299 F.3d at 441
n.46, as are “sufficiency-of-the-evidence challenges or challenges to the
application of the sentencing guidelines,” Alix, 86 F.3d at 434 n.2 (citation
omitted).
Here, Telly seeks to adopt a legal rather than fact-specific argument:
The jury was erroneously permitted to convict Telly of § 924 offenses
without “specify[ing] which predicate offense or offenses it relied upon,”
thus creating a “reasonable probability” that the jury improperly relied on
“nonviolent” RICO conduct to convict him. Jones, 935 F.3d at 269, 273.
This argument springs from the same flaw in the jury instructions that
permitted the jury to rely on an improper predicate to convict Andre and
Porter. Telly may therefore adopt their argument. And the Government
5
Both Telly and Porter generally assert that they “adopt[] any arguments made by
[their] codefendants in advance of claims commonly presented in their briefs on appeal.”
However, we address only the issues they explicitly identify: Telly’s adoption of his co-
defendants’ Davis error arguments and a couple instances, discussed infra, in which the
parties agree to the adoption or the defendants purport to adopt fact-specific arguments
not amenable to adoption under Rule 28(i). See United States v. Sineneng-Smith, 140 S. Ct.
1575, 1579 (2020).
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correctly concedes that if so, we must vacate and remand Telly’s § 924
convictions. Accordingly, we vacate Telly’s § 924 convictions under Counts
3, 6, 8, 11, and 16, and remand for further proceedings.
C. Restitution Orders
The Government sought restitution from Telly, Andre, and Porter for
their roles in shooting the daquiri shop owner, pursuant to the Mandatory
Victims Restitution Act (Restitution Act). See 18 U.S.C. § 3663A(a)(1)
(providing that sentencing court “shall order . . . that the defendant make
restitution to the victim of” a crime of violence). The district court agreed
and held Telly, Andre, and Porter jointly and severally liable for restitution
for the shop owner’s loss of value of his home, commercial property, and
business resulting from the defendants’ crimes. 6
Andre and Telly now challenge the restitution order, contending that
the district court erred because their RICO conspiracy convictions do not
constitute a crime of violence under the statute. See id. § 3663A(c)(1)(A)(i).
We agree, for the reasons discussed supra regarding defendants’ § 924
convictions. 7 As a result, and as the Government correctly concedes, we
must vacate and remand the restitution order as it pertains to Telly and
Andre.
6
The district court entered a single order on February 8, 2017, finding Andre,
Porter, and Thomas Hankton jointly and severally liable for $1.6 million in restitution. On
August 21, 2017, the district court effectively amended its prior order by finding Telly
jointly and severally liable for the restitution amount with Andre, Porter, and Thomas
Hankton. Because Thomas Hankton is not a party to this appeal, we do not address the
restitution order as it pertains to him.
7
Telly preserved his challenge to the restitution order, but Andre did not.
Regardless, under either de novo or plain error review, we must vacate and remand the
restitution order. See United States v. Maturin, 488 F.3d 657, 660 (5th Cir. 2007).
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Porter did not initially challenge the restitution order; he belatedly
raised the issue in his reply brief. Because he failed to argue the issue in his
opening brief, his challenge to the restitution order is forfeited. See United
States v. Zuniga, 860 F.3d 276, 285 n.9 (5th Cir. 2017) (quoting United States
v. Bowen, 818 F.3d 179, 192 n.8 (5th Cir. 2016)). In the normal course, that
would be the end of our discussion. But the Supreme Court has admonished
us to “correct a plain forfeited error affecting substantial rights if the error
‘seriously affect[s] the fairness, integrity[,] or public reputation of judicial
proceedings.’” United States v. Olano, 507 U.S. 725, 736 (1993) (quoting
United States v. Atkinson, 297 U.S. 157, 160 (1936)). Regarding the restitution
order here, the Government concedes plain error, and that the error affects
the defendants’ substantial rights. And the district court found Telly, Andre,
and Porter jointly and severally liable for restitution, compounding the
impact on Porter if we vacate only as to Telly and Andre. Because the error
thus “seriously affect[s] the fairness . . . of judicial proceedings” as to Porter,
Atkinson, 297 U.S. at 160, we vacate and remand the restitution order as it
pertains to Porter as well.
D. Telly’s Evidentiary Challenges
Telly contests various evidentiary rulings by the district court. First,
he challenges the denial of his motion to suppress two witness identifications
based on “unduly suggestive” photo arrays. Next, he challenges the court’s
admission of witness testimony under the forfeiture by wrongdoing hearsay
exception. Third, he contends that the district court erred by admitting a
portion of a music video as an adoptive admission of Porter because Telly
“could not cross examine the statements made therein.” Fourth, he
maintains that the prosecution improperly withheld evidence favorable to
Telly, and that the district court erred by permitting a witness to assert his
Fifth Amendment privilege against self-incrimination. Finally, Telly
challenges the denial of his motion for judgment of acquittal.
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1. Photo Arrays
During trial, the prosecution introduced two out-of-court witness
identifications, derived from two six-person photo arrays, of Telly as the
person who killed Stewart (the “Stewart murder identifications”). Telly
moved to suppress the Stewart murder identifications on the basis that the
photo arrays were “unduly suggestive” because (1) the two witnesses who
identified him were shown the same six photos, albeit in different order;
(2) Telly appeared significantly smaller in his photo compared to the people
in the other photos; (3) Telly’s photo was brighter than the other photos and,
unlike the others, lacked a shadow in the background; (4) Telly had a lighter
mustache and a fuller beard than the other individuals; and (5) Telly was
wearing a sweatshirt while the other individuals were wearing t-shirts. Telly
emphasized that the lack of a full beard on the other individuals was
significant because both witnesses had previously told the police that the man
who killed Stewart had a beard, “[t]he beard caught [their] attention,” and
the beard was “full” or “very thick.”
The district court denied Telly’s motion without a hearing,
concluding that neither of the photo arrays was impermissibly suggestive.
The court determined that “the photos contain differences that one would
reasonably expect to see in six different photos of six different people,”
concluding that there were no incriminating features that caused Telly’s
photo to stand out from the rest. 8
8
In addition to the photo arrays used in the Stewart murder identifications, Telly’s
motion to suppress challenged two others shown to witnesses who identified him as one of
Reed’s murderers. On appeal, Telly contends that the district court erred in denying his
motion in this respect too. However, the Government never introduced these
identifications into evidence, so we need not address them further.
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Preliminarily, Telly contends that the district court erred by ruling on
his motion to suppress without first conducting an evidentiary hearing.
“Evidentiary hearings are not granted as a matter of course, but are held only
when the defendant alleges sufficient facts which, if proven, would justify
relief.” United States v. Harrelson, 705 F.2d 733, 737 (5th Cir. 1983) (citations
omitted). The district court is “left with a certain amount of discretion” in
deciding whether a hearing is warranted. Id. (internal quotation marks
omitted).
The day that Telly filed his motion to suppress, the Government
disclosed that New Orleans Police Department detective Desmond Pratt had
improperly influenced two witness identifications while investigating Reed’s
murder. Telly contends that a hearing was necessary to establish that Pratt
also improperly influenced the Stewart murder identifications. Telly’s
theory is that because Pratt fabricated evidence in the Reed investigation,
Pratt must have influenced his colleague, Orlando Matthews, to do the same
in the Stewart investigation. Telly also contends that the identification
procedures were unduly suggestive because Matthews, not the witnesses,
first mentioned Telly during the photo identification process.
But Telly offers no proof that Matthews fabricated evidence or that
Pratt influenced the Stewart murder identifications in any way. To the
contrary, Telly concedes that Pratt was not involved in the Stewart
investigation, and he rested his case during trial without calling Matthews to
testify. The record likewise does not support Telly’s assertion that
Matthews rendered the identification procedures unduly suggestive by his
interactions with the witnesses. We find no abuse of discretion in the district
court’s determination that a hearing was unnecessary.
Turning to the merits, the Due Process Clause of the Fifth
Amendment forbids the admission of unreliable identification testimony at
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trial. Manson v. Brathwaite, 432 U.S. 98, 99, 114 (1977). Courts apply a two-
prong test to determine whether a photo array should be excluded. United
States v. Davis, 754 F.3d 278, 282 (5th Cir. 2014). “First, this court asks
whether the photographic [array] is impermissibly suggestive; if it was not,
the inquiry ends.” Id. “If the photographic [array] was impermissibly
suggestive, we ask whether considering the totality of the circumstances, the
photographic display posed a very substantial likelihood of irreparable
misidentification.” Id. “Photo arrays may be suggestive if the suspect is the
only person closely resembling the description, or if the subjects of the
photographs are ‘grossly dissimilar in appearance to the suspect.’” United
States v. Saenz, 286 F. App’x 166, 169 (5th Cir. 2008) (quoting United States
v. Wade, 388 U.S. 218, 233 (1967)). We review the district court’s conclusion
that the photo arrays were not impermissibly suggestive for clear error. See
McClaren, 13 F.4th at 399; Davis, 754 F.3d at 282.
On appeal, Telly contends that the photo array was impermissibly
suggestive because Telly was the only individual in the array with a “full,”
“very thick” beard, a physical characteristic highlighted by the identifying
witnesses. The district court disagreed, and its conclusion is not clearly
erroneous. See Davis, 754 F.3d at 282. All six men in the photo arrays have
facial hair, and Telly’s beard is not significantly different from any of the
other individuals’ facial hair. True, both of the identifying witnesses
specifically referenced a beard. But because the subjects of the photographs
were not “grossly dissimilar in appearance to the suspect,” Wade, 388 U.S.
at 233 (emphasis added), we cannot say “‘with a definite and firm conviction
that a mistake has been committed,’” McClaren, 13 F.4th at 399 (quoting
United States v. Bennett, 664 F.3d 997, 1008 (5th Cir. 2011)); cf. United States
v. Smith, 546 F.2d 1275, 1280 (5th Cir. 1977) (holding that a photo array was
not impermissibly suggestive even though the suspect’s hairstyle was
“marked[ly]” different than the other individuals’ hairstyles in the photo
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No. 16-30995
array because, inter alia, the description that the witness gave to the FBI did
not mention the suspect’s hairstyle). Accordingly, we find no reversible
error as to this issue.
2. Hasan Williams’s Identification Testimony
Telly also challenges the admission of Hasan Williams’s recorded
statement and state grand jury testimony identifying Telly as Reed’s killer.
About two hours after Reed was murdered, Williams described the shooting
to the police via the recorded statement. According to Williams, he and Reed
went to a house after picking up some food the night of June 20, 2009. Reed
was talking to someone on the phone in the car while Williams got out, walked
to the porch, and began eating. While Williams was sitting on the porch, he
saw a car turn onto the street and turn its headlights off about halfway down
the block. As the car approached them, Williams stated that he had a “clear
view” of Telly driving the vehicle. The car then sped up towards Williams
and Reed. They took off running and split up. Williams heard multiple
gunshots, and Reed was later found dead. He had been shot 50 times.
When officers showed Williams a picture of Telly, he positively
identified Telly. 9 He also described the car that Telly was driving and stated
that he saw two other individuals in the car but did not get a clear enough
view to describe them to the police. Finally, Williams told the police that one
individual stayed in the car while the other two got out with handguns and
killed Reed. Less than a week after the shooting, on June 25, 2009, Williams
testified before a Louisiana grand jury, repeating the information that he told
9
As the district court found, “[t]he record reflects that Hasan Williams and Telly
Hankton knew each other for years before the Jesse Reed murder.” Therefore, Williams’s
identification of Telly through one photograph, rather than a full array, is not at issue as
with other witnesses, discussed supra.
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No. 16-30995
the police. About two weeks later, Williams was killed. Porter was charged
and convicted as his killer in this case.
At trial, the Government sought to introduce both Williams’s
recorded statement from the night of Reed’s murder and his state grand jury
testimony. Telly moved to suppress the evidence, contending that the
evidence was inadmissible hearsay and that its admission violated the Sixth
Amendment’s Confrontation Clause. See U.S. Const. amend. VI. The
district court denied Telly’s motion and admitted both the statement and
testimony, finding that the Government proved by a preponderance of the
evidence that Telly had wrongfully caused or acquiesced in Williams’s
murder, such that the evidence was admissible under the forfeiture by
wrongdoing exception to the hearsay rule.
Telly contends that the district court should have conducted an
evidentiary hearing regarding Williams’s statement and grand jury
testimony. But Telly did not request a hearing. Accordingly, we review the
district court’s admission of the evidence without a hearing for plain error.
See McClaren, 13 F.4th at 413; United States v. Pena, No. 93-7563, 1994 WL
558899, at *1 (5th Cir. 1994) (per curiam).
Telly argues that the district court erred because Williams’s
identification of Telly was “influenced” by Pratt, and an evidentiary hearing
was necessary for Telly to “establish this allegation.” But the district court
did not circumvent Telly’s ability to elicit evidence at trial regarding any
communication Pratt had with Williams. As mentioned, Telly did not call
Pratt’s colleague Matthews to the stand, despite his assertion that Matthews
would have testified in support of his theory. Telly thus fails to show error,
plain or otherwise, in the district court’s decision not to conduct a hearing.
See Jones, 935 F.3d at 271.
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No. 16-30995
Telly also renews his contention that the admission of Williams’s
grand jury testimony violated his Sixth Amendment right to confront
witnesses against him. Because Telly objected to the admissibility of this
testimony at trial, we review the admission of the testimony under the
forfeiture by wrongdoing doctrine “for abuse of discretion, subject to the
harmless error standard.” United States v. Gurrola, 898 F.3d 524, 533 (5th
Cir. 2018) (quoting United States v. Valas, 822 F.3d 228, 239–40 (5th Cir.
2016)). “A trial court abuses its discretion when its ruling is based on an
erroneous view of the law or a clearly erroneous assessment of the evidence.”
Id. (quoting United States v. Yanez Sosa, 513 F.3d 194, 200 (5th Cir. 2008))
(internal quotation marks omitted).
“The [Sixth] Amendment contemplates that a witness who makes
testimonial statements admitted against a defendant will ordinarily be
present at trial for cross-examination, and that if the witness is unavailable,
his prior testimony will be introduced only if the defendant had a prior
opportunity to cross-examine him.” Giles v. California, 554 U.S. 353, 358
(2008). There are, however, exceptions to this rule, including the doctrine
of forfeiture by wrongdoing. Id. at 358, 367.
“[T]he rule of forfeiture by wrongdoing . . . extinguishes
confrontation claims on essentially equitable grounds.” Davis v. Washington,
547 U.S. 813, 833 (2006) (citation and internal quotation marks omitted). An
out-of-court statement is admissible as evidence if the declarant is
unavailable as a witness and “[the] statement [is] offered against a party that
wrongfully caused—or acquiesced in wrongfully causing—the declarant’s
unavailability as a witness, and did so intending that result.” Fed. R. Evid.
804(b)(6); see also Davis, 547 U.S. at 833 (acknowledging that Rule 804(b)(6)
codifies the forfeiture by wrongdoing doctrine). The party invoking the rule
carries the burden of showing by a preponderance of the evidence that the
opposing party wrongfully and intentionally made the witness unavailable.
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See Davis, 547 U.S. at 833 (citing United States v. Scott, 284 F.3d 758, 762 (7th
Cir. 2002)).
Telly asserts that the district court’s ruling was based on “a clearly
erroneous assessment of the evidence,” Gurrola, 898 F.3d at 533, because
the prosecution did not establish by a preponderance of the evidence that
Telly was involved in wrongfully causing or acquiescing in Williams’s
unavailability. Specifically, Telly contends: there was no evidence that he
knew that Williams spoke to the police; he was incarcerated at the time
Williams was killed, and thus he could not have been involved in Williams’s
murder; and he was not charged with any involvement in the murder.
Telly’s assertions are belied by the record. As the district court stated,
[t]he record reflects that Hasan Williams and Telly Hankton
knew each other for years before the Jesse Reed murder.
Williams stated to police officers and to the grand jury that he
clearly recognized [Telly] as the driver and one of the shooters.
It is more likely than not that [Telly] clearly recognized
Williams, as well. Nine days after Williams identified [Telly]
before the state grand jury, he was gunned down, allegedly by
[Porter,] the hitman for the Hankton organization. To further
narrow the likelihood of coincidence, the two .40 caliber guns
used to kill Williams were ballistically linked to the same guns
used to kill Reed. The government has satisfied its
preponderance burden under Rule 804(b)(6).
In addition, at trial, Aaron Smith testified that Porter told Smith that Porter
killed Williams because Williams was a witness to Reed’s killing. There is
also evidence that Porter told his acquaintance Brian Hayes that there was a
witness to Reed’s murder—Williams—and that Telly gave Porter $5,000 to
kill him.
The district court’s conclusion that Telly, at the very least,
“acquiesced in wrongfully causing . . . [Williams’s] unavailability as a
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No. 16-30995
witness, and did so intending that result,” Fed. R. Evid. 804(b)(6), was
not based on “a clearly erroneous assessment of the evidence,” Gurrola, 898
F.3d at 533. We therefore find no abuse of discretion.
Separately, Telly avers that the district court admitted the evidence
based on “an erroneous view of the law” because, according to Telly, the
preponderance of the evidence burden of proof was insufficient “to protect
[his] Sixth Amendment right to Confrontation.” But our precedent clearly
holds that the burden of proof to introduce evidence under Rule 804(b)(6) is
the preponderance standard. See Gurrola, 898 F.3d at 534. The district court
applied that standard and did not abuse its discretion in doing so. Id.; see
Fed. R. Evid. 804(b)(6). 10
Lastly, Telly asserts that the district court erroneously applied the
conspiratorial liability approach articulated in Pinkerton v. United States, 328
U.S. 640 (1946), in order “to get the [G]overnment’s evidence over the line
on the burden of preponderance of the evidence.” He takes issue with a
footnoted remark in the district court’s order admitting the evidence that the
Fourth Circuit “has applied conspiratorial principles to the forfeiture [by
wrongdoing] doctrine, explicitly rejecting the argument that a defendant
could not participate in a murder to silence a witness because the defendant
was in prison at the time of the murder.” (Citing United States v. Dinkins,
691 F.3d 358 (4th Cir. 2012)). But the district court’s ruling turned not on
10
Telly correctly states that this court has indicated that the burden of proof “may
well be higher” if the “objection is rooted in the . . . Confrontation Clause” as opposed to
Rule 804(b)(6). See United States v. Nelson, 242 F. App’x 164, 171 n.2 (citing Davis, 547
U.S. at 833). But the Government moved to introduce the evidence at issue here under
Rule 804(b)(6), which Telly’s counsel acknowledged in response. To the extent there is
ambiguity as to whether Telly’s objection was rooted in the Confrontation Clause, when
the parties argued the motion before the district court, Telly’s counsel conceded that the
preponderance standard applied. Accord Gurrola, 898 F.3d at 534.
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No. 16-30995
the Fourth Circuit’s conspiratorial liability approach, but on the facts
detailed above. The district court’s reference to conspiratorial liability
merely bolstered its conclusion that Telly’s imprisonment at the time
Williams was murdered did not preclude a finding that Telly caused or
acquiesced in Williams’s murder. See Fed. R. Evid. 804(b)(6). In short,
we perceive no reversible error in the district court’s admission of Williams’s
recorded statement or his state grand jury testimony into evidence.
3. “Guilty by Association” Video
Telly contests the admission into evidence of a rap music video as an
adoptive admission by his codefendant Porter. At trial, the Government
moved to introduce the video, entitled “Guilty by Association,” in which
Porter makes an appearance. 11 In the video, the rapper references both
Reed’s murder and Williams’s murder. According to the record, the rapper
states: “N***as get too close to me, got my gat[12] in my hand. Turn around
n***a put one in the back of ’ya head. I keep them goonies around, who keep
them toolies[13] around. N***a get hit fifty times because my n***a Moonie
around.” As the rapper mentions “Moonie,” he pulls Porter close to him as
Porter simultaneously puts his finger to his lips in a “shhh” sign. The
evidence at trial indicated that Porter was known as “Moonie.”
The district court allowed the rap video into evidence. It found that
Porter took “active steps to manifest his approval” of the lyrics. The court
11
The video clip can be viewed on YouTube. Young Gwap, BG - Guilty By
Association (OFFICIAL VIDEO), YouTube (Oct. 29, 2010),
https://www.youtube.com/watch?v=OKQk6cxquto. The relevant lyrics begin at
approximately 2:30.
12
“Gat” is slang for “a pistol or revolver.” See Gat, Dictionary.com,
https://www.dictionary.com/browse/gat, (last visited May 5, 2022).
13
The record states that “toolies” is “a slang term for a gun.”
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reasoned that Porter voluntarily appeared in the video, pointed at the camera,
“gesture[d] to keep quiet as he [was] embraced by” the rapper, and only
appeared during the “few seconds when [the rapper] mention[ed] ‘Moonie’
shooting someone 50 times,” which was “no coincidence” given that Reed
was shot 50 times. The district court concluded that Porter’s actions were
“braggadocios” and admissible as an adoptive admission. See Fed. R.
Evid. 801(d)(2)(B).
Telly argues that the district court abused its discretion by admitting
the “Guilty by Association” video clip under Rule 801(d)(2)(B) as an
adoptive admission of Porter for two reasons. First, Telly contends that he
was never given an opportunity to challenge through cross-examination
whether the video was an adoptive admission by Porter. Second, and more
substantively, he asserts that the district court “mischaracterized” the
contents of the video because the lyrics were not evidentiary “statements”
but were instead merely artistic expression by the rapper.
We review de novo “the district court’s legal conclusion about
whether a statement is hearsay.” United States v. Reed, 908 F.3d 102, 120
(5th Cir. 2018). “A district court’s decision to admit or exclude evidence is
reviewed for abuse of discretion . . . . Any error in admitting evidence is
subject to harmless error review.” United States v. Ibarra, 493 F.3d 526, 532
(5th Cir. 2007) (citations omitted); see also United States v. Ragsdale, 426 F.3d
765, 774–75 (5th Cir. 2005).
A “statement” for hearsay purposes is “a person’s oral assertion,
written assertion, or nonverbal conduct, if the person intended it as an
assertion.” Fed. R. Evid. 801(a). Under Rule 801(d)(2)(B), a statement
is not hearsay if it “is offered against an opposing party and is one the party
manifested that it adopted or believed to be true.” Silence generally is not
an adoptive admission, but the commentary to the rule notes that
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No. 16-30995
“[a]doption or acquiescence may be manifested in any appropriate manner.
When silence is relied upon, the theory is that the person would, under the
circumstances, protest the statement made in his presence if untrue.” Fed.
R. Evid. 801(2)(B) advisory committee’s note.
Telly’s argument that he should have been allowed to cross-examine
the rapper fails. Before the district court, Telly urged that he should be able
to cross-examine the rapper “to talk about whether or not that statement was
said in jest, . . . the veracity of the statement.” However, the rapper’s state
of mind is irrelevant because, as the district court found, Porter adopted the
statements in the video and was the one charged with involvement in both
the conspiracies and murders at issue. It was therefore not an abuse of
discretion to proceed without cross examination of the artist himself.
As for the substance of Porter’s adoptive admission, i.e., the rap lyrics
themselves, Telly’s argument that the lyrics were not “statements” because
they were artistic expressions subject to interpretation also lacks merit. The
rap lyrics in the video clip were evidentiary statements within the meaning of
Rule 801(a), and Porter’s actions in the video “manifested that [he] adopted
or believed [them] to be true.” Fed. R. Evid. 801(d)(2)(B). Telly may
well be correct that the lyrics were subject to interpretation, but that
interpretation was within the province of the jury to determine. The district
court did not abuse its discretion by admitting the video clip into evidence for
the jury to consider.
Regardless, assuming the video clip contained hearsay and was
improperly admitted, any error was harmless to Telly. The lyrics did not
mention Telly; the only name mentioned was “Moonie,” Porter’s nickname.
By contrast, seven witnesses testified that Porter told them he killed Reed
and that Telly paid him for it. Considering the extensive witness testimony,
there is not “a reasonable probability” that the 10-second rap video clip,
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No. 16-30995
which implied Porter’s involvement in Reed’s and Williams’s murders,
“contributed to [Telly’s] conviction” for Reed’s murder. Ibarra, 493 F.3d
at 532.
4. Washington McCaskill Testimony
Telly’s next arguments are that the prosecution suppressed evidence
beneficial to him in violation of the Sixth Amendment, see Brady v. Maryland,
373 U.S. 83 (1963), and that the district court erroneously permitted witness
Washington McCaskill to assert his Fifth Amendment privilege against self-
incrimination.
On December 14, 2015, McCaskill, who was in prison, met with law
enforcement officers and told them that he knew Jackson. McCaskill stated
that he purchased heroin from Jackson on several occasions. In May 2016,
McCaskill changed his story, telling law enforcement that he lied about
purchasing heroin from Jackson and that two fellow inmates, Isaac Skinner
and Travis Bradley, had convinced him to lie. But McCaskill stated that the
other information that he provided, such as Jackson’s involvement in drug
dealing, was accurate.
On May 16, 2016, McCaskill wrote two letters outlining this same
information to a Louisiana assistant district attorney involved in a related
case. McCaskill then testified in state court on May 25 and 26, 2016, about
Jackson and the letters that recanted part of his story. The trial in this case
began on June 6, 2016. On June 13, 2016, as trial in this case proceeded, the
Government learned about McCaskill’s letters. The same day, McCaskill’s
attorney told the Government that while McCaskill was incarcerated, he had
a phone call with law enforcement on December 2, 2015. On June 14, 2016,
the Government produced McCaskill’s letters to defense counsel in this
case; a day later, the Government provided the transcript of the phone call.
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On June 16, 2016, Telly filed a “Memorandum in Support of Motion
for Miscellaneous Relief,” contending that the Government violated Brady
by the tardy delivery of McCaskill’s letters and phone transcript. After
receiving briefing, the district court disagreed, concluding that the
Government’s production of the evidence to defense counsel was timely and
that, in any event, Telly had not suffered prejudice from the delay. However,
because the Government had already called Bradley to testify about his
association with McCaskill, the district court permitted defense counsel to
recall Bradley for limited cross-examination, given that “the recorded phone
conversation may have been useful in impeaching Bradley as to his
associations with McCaskill.”
A few days later, Jackson called McCaskill to the stand. The parties
agreed that McCaskill had partially waived his Fifth Amendment privilege
against self-incrimination, to the extent that he admitted in two letters, his
state court testimony, and his December 2015 phone call with law
enforcement that he had originally lied about purchasing drugs from Jackson
and that Bradley and Skinner had encouraged him to lie. However, before
McCaskill took the stand, his lawyer advised that he was concerned that if
McCaskill was forced to testify, his plea agreement in a separate case might
get “cancel[led],” or he might be charged with making a false statement to
an agent under 18 U.S.C. § 1001. The district court permitted McCaskill to
assert his Fifth Amendment privilege when he was asked about either Bradley
or Skinner.
Telly now makes an attenuated argument that McCaskill’s assertion
of his Fifth Amendment privilege negatively affected Telly’s defense. He
reasons that because his convictions related to the murder of Darvin Bessie
(a Broussard accomplice) were based on Skinner’s testimony, he could have
used McCaskill’s statement that Skinner convinced McCaskill to lie to
impeach Skinner’s implication of Telly in that murder.
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We address Telly’s arguments in turn.
a. Alleged Brady Violation
Under Brady, the Government “violates a defendant’s due process
rights if it withholds evidence that is favorable to the accused and material to
the defendant’s guilt or punishment.” United States v. Swenson, 894 F.3d
677, 683 (5th Cir. 2018). “There are three components to a Brady violation.
First, the evidence must be favorable to the accused, a standard that includes
impeachment evidence. Second, the [Government] must have suppressed
the evidence. Third, the defendant must have been prejudiced.” Valas, 822
F.3d at 236–37 (quoting United States v. Hughes, 230 F.3d 815, 819 (5th Cir.
2000)). “[E]vidence that is turned over to the defense during trial . . . has
never been considered suppressed.” Swenson, 894 F.3d at 687. “Instead, . . .
when a defendant challenges ‘the late production of impeachment evidence,’
the analysis ‘turns on whether the defendant was prejudiced by the tardy
disclosure.’” Id. (quoting United States v. Morrison, 833 F.3d 491, 508 (5th
Cir. 2016)).
“To establish prejudice, . . . [Telly] must show that the evidence
‘could reasonably be taken to put the whole case in such a different light as
to undermine confidence in the verdict.’” Valas, 822 F.3d at 237 (quoting
Hughes, 230 F.3d at 819). “If the defendant received the material in time to
put it to effective use at trial, his conviction should not be reversed simply
because it was not disclosed as early as it might have and, indeed, should have
been.” United States v. McKinney, 758 F.2d 1036, 1050 (5th Cir. 1985). Brady
violations are reviewed de novo. Valas, 822 F.3d at 236.
The McCaskill letters and phone transcript were produced mid-trial,
on June 14, 2016. Accordingly, the evidence was not suppressed, and the
question becomes “whether the defendant was prejudiced by the tardy
disclosure.” Swenson, 894 F.3d at 687 (internal quotation marks omitted).
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Telly was not. He “received the material in time to put it to effective
use at trial.” McKinney, 758 F.2d at 1050. The Government provided
McCaskill’s letters to the defense within a day of when the Government
learned of them, the letters largely corroborated information that the
Government had already provided during discovery (i.e., that McCaskill lied
about purchasing drugs from Jackson), and defense counsel was able to use
the fact that McCaskill lied during cross-examination of both Bradley and
Skinner. Similarly, the belated disclosure of McCaskill’s December 2015
phone call did not prejudice Telly because the district court allowed counsel
to recall Bradley for limited cross-examination. Moreover, McCaskill’s
letters, phone transcript, and prior state court testimony were all introduced
into evidence for the jury to consider. Telly has failed to establish that the
tardy evidence “could reasonably be taken to put the whole case in such a
different light as to undermine confidence in the verdict.” Valas, 822 F.3d
at 237 (internal quotation marks omitted). This issue accordingly lacks merit.
b. McCaskill’s Privilege Against Self-Incrimination
Telly also contends that allowing McCaskill to assert his Fifth
Amendment privilege against self-incrimination curtailed Telly’s right to
confront McCaskill. “A defendant has a Sixth Amendment right to
compulsory process to obtain favorable testimony . . . . But this right does
not always assure a defendant of the testimony sought.” United States v.
Goodwin, 625 F.2d 693, 700 (5th Cir. 1980) (citation omitted). “A valid
assertion of the witness’[s] Fifth Amendment rights justifies a refusal to
testify despite the defendant’s Sixth Amendment rights.” Id.“[T]he Fifth Amendment privilege is applicable where the [witness]
has ‘reasonable cause to apprehend danger from a direct answer.’” Id.(quoting Hoffman v. United States, 341 U.S. 479, 486 (1951)). “The privilege
must be sustained if it is not perfectly clear, from a careful consideration of
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all the circumstances in the case, that the witness is mistaken, and that the
answer(s) cannot possibly have such tendency to incriminate.” Id. at 701
(quotation marks omitted). “A district court’s decision to exclude a
witness’s testimony based on an invocation of the witness’s Fifth
Amendment privilege is reviewed for an abuse of discretion.” United States
v. Brooks, 681 F.3d 678, 711 (5th Cir. 2012) (citation and internal quotation
marks omitted). “Although the trial court’s discretion is not unlimited, it
must enjoy wide discretion in resolving a self-incrimination claim.” United
States v. Van Deveer, 577 F.2d 1016, 1017 (5th Cir. 1978) (per curiam).
Telly contends that the district court abused its discretion because
McCaskill’s testimony would have been “critical to the theory of the
defense.” Even so, the district court permitted McCaskill to invoke his
privilege against self-incrimination partly because McCaskill feared that his
plea agreement in a separate case could be canceled due to his testimony in
Telly’s case. McCaskill was also awaiting sentencing, and “[w]here the
sentence has not yet been imposed a defendant may have a legitimate fear of
adverse consequences from further testimony.” Mitchell, 526 U.S. at 326.
Because McCaskill’s “‘answer(s) [could] possibly have [had] such
tendency’ to incriminate,” Goodwin, 625 F.2d at 701 (quoting Hoffman, 341
U.S. at 488), the district court did not abuse its discretion in permitting
McCaskill to assert his Fifth Amendment privilege.
5. Telly’s Motion for Judgment of Acquittal
Telly’s final argument is puzzling: He appears to argue that he was
erroneously convicted of 23 overt acts charged in Count 1 (i.e., furthering the
RICO conspiracy) because there was no, or very little, evidence to support a
finding that Telly committed those acts. At the close of evidence, but before
the jury began its deliberations, Telly filed a “Motion for Judgment of
Acquittal on Certain Overt Acts.” Telly’s counsel framed Telly’s motion as
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No. 16-30995
one for judgment of acquittal on certain overt acts under Count 1. But at trial,
Telly’s counsel stated that she “filed [the motion] to strike several of the
overt acts in the indictment.”
The district court, unclear as to what Telly’s counsel sought to do,
took the motion under submission. The court later clarified that it was
“going to construe [the] motion” as a motion for judgment of acquittal under
Federal Rule of Criminal Procedure 29. Ultimately, the district court
concluded that Telly’s motion was “effectively moot” because the court had
instructed the jury that the indictment was not evidence, and this court had
never “suggest[ed] a defendant can be acquitted of overt acts after the jury
returns a verdict.” Telly appeals this ruling.
Distilling Telly’s argument, he contends that we should strike the
challenged overt acts pursuant to United States v. Luffred, 911 F.2d 1011 (5th
Cir. 1990), because there was insufficient evidence to support that Telly
committed them. Luffred, however, is inapposite. In Luffred, we held that
“fair trial requirements mandate[d] that the court parse the indictment and
read to the jury only those overt acts covered by the evidence.” Id. at 1016.
But we also acknowledged as settled law “that a court may read an indictment
in its entirety provided the jury is instructed that the indictment is not
evidence.” Id. (citing United States v. Jones, 587 F.2d 802, 805 (5th Cir.
1979) (per curiam)). Moreover, we limited Luffred to “the setting of th[at]
particular case.” See id.Even if there were insufficient evidence to prove that Telly committed
all of the overt acts listed in Count 1, Telly does not offer any authority
counter to our precedent that “a court may read an indictment in its entirety
provided the jury is instructed that the indictment is not evidence.” Id.; see
also Kroll v. United States, 433 F.2d 1282, 1287 (5th Cir. 1970). And here, the
record is clear that the district court instructed the jury multiple times to that
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effect. Thus, the district court did not err in denying Telly’s construed Rule
29 motion on this issue.
E. Porter’s Competency
1. Background
The gravamen of Porter’s appeal is whether he was competent to
stand trial. In 2014, in three separate criminal cases in the Eastern District
of Louisiana, Porter contended that he was not. District Judge Sarah Vance
presided over two of the cases, and District Judge Martin Feldman presided
over the remaining case (charging RICO conspiracy), the case now on appeal.
For efficiency, Judges Vance and Feldman decided to conduct Porter’s
competency proceedings jointly.
The district court held two competency hearings for Porter. During
the first, on October 22, 2014, Dr. Shawn Channell and Dr. Bhushan S.
Agharkar each concluded that Porter “d[id] not possess sufficient ability to
consult with his lawyer” and did not possess a rational “understanding of the
proceedings against him.” 14 The district court agreed that, at least at that
time, Porter was incompetent to stand trial and set a second competency
hearing for July 2015. United States v. Porter, 907 F.3d 374, 378 (5th Cir.
2018). During the second hearing, Dr. Channell, re-evaluating Porter after
seven months of intervening medical treatment, concluded that he was
competent to stand trial. Dr. Channell determined that Porter was not in a
state of psychosis, which would render him incompetent, but was
experiencing “malingering symptoms of psychosis,” allowing him to
“mediate the inclinations and beliefs that [he had].” Based on Dr.
14
The district court accepted Dr. Channell, a forensic psychologist, and Dr.
Agharkar, a forensic psychiatrist, as experts in their respective fields.
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Channell’s re-evaluation, the district court determined that Porter was
competent to stand trial.
Just before the second competency hearing, Porter requested funding
for a neuropsychological evaluation. According to an expert hired by Porter,
a neuropsychological evaluation was necessary to “understand[] [Porter’s]
level of [cognitive] functioning.” The district court denied Porter’s request,
reasoning that “Porter fail[ed] to invoke any authority supporting his request
for funding . . . at th[at] stage of the proceedings,” and that the issue could
be addressed at the upcoming competency hearing.
Porter filed a motion to reconsider. He attached scholarly articles
detailing the connection between neurocognitive dysfunction and
schizophrenia. Porter also attached a letter from Dr. Agharkar explaining
why, in his opinion, Porter needed “a full battery of neuropsychological
tests” before Dr. Agharkar “could render a full and complete opinion
regarding Mr. Porter’s competence to stand trial.” Lastly, Porter contended
that his medical history—replete with alleged physical abuse and mental
illness—indicated that he possibly had suffered brain damage and that
further testing was necessary on that basis as well.
The district court acknowledged that “Porter ha[d] consistently failed
to assist his counsel,” possibly indicating impaired brain function, but the
court ultimately denied the motion to reconsider. The court noted that
Porter did not cite any record evidence supporting his allegations of physical
abuse or a family history of mental illness. He also failed to offer any legal
authority demonstrating that the court erred in concluding that it was not
necessary to appoint a neuropsychologist at that juncture.
During his second competency hearing, Porter re-urged his motion for
neuropsychological testing and motion for reconsideration. The district
court concluded that “[s]uch testing [was] not necessary in this case and
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would be futile.” First, the court found that “there [was] ample evidence . . .
that Porter [was] acting volitionally and ha[d] engaged in a deliberate course
of conduct to convince his evaluators that he ha[d] a mental illness.” Second,
“the record confirm[ed] that Porter ha[d] the present ability to understand
the legal proceedings and assist his counsel.” Third, “even if Porter ha[d]
brain damage, as Dr. Agharkar suggest[ed] he might, any such finding would
not undermine the [c]ourt’s finding that Porter function[ed] at a sufficient
level to be deemed competent.” Fourth, “even if neuropsychological testing
were to reveal that Porter ha[d] brain damage, that testing w[ould] not
identify how such damage manifest[ed] itself . . . and affect[ed] Porter’s
competency.” “Finally, Porter ha[d] consistently refused to participate in
any comprehensive psychological testing” and thus “administration of
neuropsychological testing w[ould] be futile.”
Porter previously appealed aspects of the district court’s competency
determination in one of Judge Vance’s cases. See Porter, 907 F.3d 344. In
this appeal, Porter challenges the court’s eventual conclusion that he was
competent, its denial of his two motions to continue his competency hearing,
and Judge Feldman’s denial of his request for a neuropsychological
evaluation. Porter further argues that these combined rulings stripped him
of his constitutional right to expert assistance. Some of these issues were
already decided in his prior appeal. Collateral estoppel bars relitigation of
those issues, and we find no error in the district court’s resolution of the issue
not previously appealed.
2. Collateral Estoppel
Collateral estoppel “preclude[s] relitigation of the same issue already
litigated against the same party in another case involving virtually identical
facts.” United States v. Stauffer Chem. Co., 464 U.S. 165, 169 (2010). We
have already reviewed, and affirmed, the district court’s denial of Porter’s
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two continuance requests and the court’s conclusion that Porter was
competent to stand trial. Porter, 907 F.3d at 380–85. And the parties in this
case are the same as those in Porter. Id. at 377. Thus, collateral estoppel bars
Porter from relitigating these issues. See Stauffer Chem. Co., 464 U.S. at 169;
United States v. Brackett, 113 F.3d 1396, 1398 (5th Cir. 1997).
3. Neuropsychological Testing
By contrast, in Porter, we determined that we lacked jurisdiction to
consider Porter’s argument that the district court erred by denying funding
for neuropsychological testing. 907 F.3d at 382. We reasoned that Porter’s
funding request was not filed in the case appealed in Porter; it was filed in this
case. Id. Now properly appealed, we address the issue.
“18 U.S.C. § 3006A(e)[] provides that a ‘person who is financially
unable to obtain investigative, expert, or other services necessary for
adequate representation’ may obtain such services after demonstrating in an
ex parte proceeding that the services are necessary.” United States v. Boyd,
773 F.3d 637, 642 (5th Cir. 2014). We review the denial of a § 3006A(e)
request for abuse of discretion, id., considering the denial “in light of only the
information available to the trial court at the time it acted on the motion,”
United States v. Gadison, 8 F.3d 186, 191 (5th Cir. 1993) (quotation omitted).
In denying funding for neuropsychological testing, the district court
reasoned that “ample evidence” existed that “Porter [was] acting
volitionally and ha[d] engaged in a deliberate course of conduct to convince
his evaluators that he ha[d] a mental illness.” Porter, 907 F.3d at 381–82.
The record bears out this conclusion. Before Porter’s first competency
hearing, he received psychological treatment at the Federal Medical Center
at Devens (Devens). While at Devens, Porter refused to speak to medical
personnel when they requested that he participate in psychological tests,
despite that he was observed “routinely interacting normally” with other
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individuals. Because neuropsychological testing would “require[] Porter’s
full cooperation and effort” to ensure that the results would be reliable and
not “show artificially low levels of functioning,” and given that Porter
willfully refused to cooperate in other psychological testing, we find no abuse
of discretion in the district court’s denial of Porter’s request. 15
F. Motions to Sever
Telly, Porter, and Jackson each moved to sever their trials; the district
court denied their requests. On appeal, they contend that the district court
abused its discretion in denying their motions. 16 Telly argues that severance
was necessary to ensure a fair trial because Porter’s defense “was mutually
antagonistic” to his. Porter argues that denial of severance was unduly
prejudicial. And Jackson contends that the five crimes for which he was
indicted were only tangentially related to the other defendants’ numerous
crimes.
“We review a denial of a motion to sever a trial under the exceedingly
deferential abuse of discretion standard.” McClaren, 13 F.4th at 398 (quoting
United States v. Chapman, 851 F.3d 363, 379 (5th Cir. 2017)); see Fed. R.
Crim. P. 14(a) (stating that a court “may order separate trials of counts”
to prevent prejudice against a defendant). “Limiting instructions are
generally sufficient to prevent the threat of prejudice.” McClaren, 13 F.4th
at 398 (internal quotation marks and alteration omitted).
15
Porter also contends that “[t]he combined errors of failing to grant [a]
neuropsychological evaluation and a continuance stripped [him] of his right to an expert to
assist in his defense.” But, as discussed above, Porter has not established any error
supporting his contention. See Porter, 907 F.3d at 382–84.
16
Telly and Porter filed multiple motions to sever. Neither specifies which denial
they appeal, so based on their arguments, we only address their most recent motions.
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To demonstrate abuse of discretion, [the] [d]efendants 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. Defendants must
isolate events at trial, demonstrate the events caused
substantial prejudice, and show the jury instructions were
inadequate to protect them.
Id. (citations omitted).
1. Telly’s Motion to Sever
At trial, Telly contended that severance was necessary because his
defense and Porter’s defense were “mutually antagonistic.” Specifically, his
defense theory was that the alleged murders at issue were committed on
Porter’s own volition, not at Telly’s instruction. The district court denied
the motion, but it ordered counsel to restrict cross-examination to
questioning witnesses about matters regarding their own clients—e.g.,
Telly’s counsel could not cross-examine witnesses about Porter. And at the
conclusion of trial, the district court gave limiting instructions to the jury,
including to consider the evidence against each defendant separately and that
arguments by counsel were not evidence.
Telly reiterates his argument on appeal. He also contends that the
district court’s limitation of cross-examination “was an abuse of discretion
and . . . led to the significant infringement of [Telly’s] right to defend himself
at trial.”
As a general matter, “persons indicted together should be tried
together, especially in conspiracy cases.” United States v. McRae, 702 F.3d
806, 821 (5th Cir. 2012) (citation and internal quotation marks omitted).
“Antagonistic defenses . . . do not result solely when each defendant points
the finger at the other.” United States v. Holcomb, 797 F.2d 1320, 1324 (5th
Cir. 1986). Instead, “the defenses must be more than merely antagonistic—
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they must be antagonistic to the point of being mutually exclusive.” Id.(citations and internal quotation marks omitted). Beyond that, “[m]utually
antagonistic defenses are not prejudicial per se. Moreover, 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.”
Zafiro v. United States, 506 U.S. 534, 538–39 (1993).
Telly’s argument falters out of the gate because Telly’s and Porter’s
defenses were not mutually exclusive. Telly’s defense was that he did not
order Porter to kill anyone. Porter’s defense was that someone else
committed the crimes and that the witnesses against him lied. It is possible
for a jury simultaneously to believe both. Thus, Telly did not face undue
prejudice because of Porter’s defense or the district court’s denial of
severance. See Holcomb, 797 F.2d at 1324.
Even assuming prejudice, though, the district court carefully erected
guardrails to protect the codefendants’ rights in this case. Telly fails to show
how these measures were “inadequate to protect [him].” McClaren, 13 F.4th
at 398 (citations omitted).
As for the district court’s limitation on cross-examination of witnesses
about other defendants, Telly has not demonstrated “prejudice[] . . . beyond
district court protection” because of this restriction. Id. Indeed, the relief
fashioned by the district court was an effort to contain prejudice from
“antagonistic” “finger pointing” between codefendants—the very risk that
Telly contends mandated severance. Cf. Holcomb, 797 F.2d at 1324. Telly
asserts that the restriction on cross-examination prevented him from eliciting
testimony beneficial to his defense. But he does not “isolate events at trial,”
e.g., by detailing what testimony he was unable to elicit, or “demonstrate the
[court’s parameters] caused substantial prejudice.” McClaren, 13 F.4th at
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398. Notably, by the time the district court imposed its limitation, Telly had
already fully cross-examined several witnesses.
Further, Telly wholly fails to show that the district court’s
instructions to the jury were inadequate. See id. To the contrary, the district
court repeatedly instructed the jury to consider the evidence against each
defendant separately. The district court also cautioned the jury that
arguments by counsel were not evidence. And the jury acquitted the
defendants on some counts, suggesting that “the jury sorted through the
evidence and considered each defendant and each count separately.” United
States v. Posada-Rios, 158 F.3d 832, 864 (5th Cir. 1998).
In sum, Telly fails to “prove that . . . the prejudice outweighed any
interest in the economy of judicial administration.” Id. Telly’s only mention
of judicial economy on appeal is a conclusory assertion that “[c]oncerns of
judicial economy—even in such a large and complex case—do not outweigh
[a] direct infringement on a defendant’s fundamental due process right to
present a complete defense.” But Telly nowhere explains why a joint trial
was not preferrable, especially considering that “persons indicted together
should be tried together, especially in conspiracy cases.” McRae, 702 F.3d at
821 (citation and internal quotation marks omitted); see also Zafiro, 506 U.S.
at 537. As the district court stated, “so much [in this case] is intertwined,”
and “severance would [have] require[d] months of separate mini trials.”
Without more, we discern no abuse of discretion as to this issue.
2. Porter’s Motion to Sever
Porter contends that the district court erred in denying severance
because (1) “Porter was prejudiced from the spillover effect of being tried
alongside his codefendants accused of participating in a massive drug
distribution conspiracy that spanned at least fifteen years,” and (2) “Porter’s
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codefendants all used a mutually antagonistic trial strategy that painted him
as the most culpable to the jury.” 17
Porter primarily points to witness testimony describing Telly’s and
Jackson’s involvement in the RICO conspiracy as evidence that he contends
would not have been admissible at his solo trial. But “the RICO net is woven
tightly to trap even the smallest fish, those peripherally involved with the
enterprise.” United States v. Elliott, 571 F.2d 880, 903 (5th Cir. 1978). The
purpose of trying RICO co-conspirators together is to catch all the “fish”
together in one “RICO net,” even if not every piece of evidence is directly
attributable to each individual co-conspirator. Id.Regardless, even assuming Porter was prejudiced by “spillover”
evidence, that alone would “not ordinarily warrant severance.” McRae, 702
F.3d at 827. Porter must explain how “the district court was unable to afford
protection against the prejudice,” and he fails to do so. Id. He contends that
he “had nothing to do” with the drug distribution conspiracy, and the
“weeks of testimony and evidence the [G]overnment presented in
connection to Porter’s codefendants . . . overwhelmed the jury’s ability to
adjudicate his guilt or innocence.” But the record does not support Porter’s
contention. Porter’s role in the RICO conspiracy was clear: He was a hitman
for Telly and joined the Hankton Enterprise in 2009. 18 There is nothing in
the record indicating that the jury confused Porter’s role. Porter also
17
Porter also attempts to adopt Jackson’s severance argument. However, “under
Rule 28(i), severance issues are fact-specific” and thus cannot be adopted by co-
defendants. Solis, 299 F.3d at 441 n.46.
18
Porter points to the Government’s closing statement to argue that he was
erroneously implicated in the killing of Venice Brazley in 2000. But the record does not
indicate that the jury believed Porter was involved in the Hankton Enterprise until 2009,
well after Brazley was killed. And considering the entirety of the closing statement, the
Government explicitly argued that Telly was the one who killed Brazley, not Porter.
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concedes that the district court gave a limiting instruction to the jury but
contends that the six-sentence instruction “could not have possibly cured the
extraordinary prejudice Porter experienced.” Without more than that
conclusory statement, though, Porter has not shown that the trial court’s
instruction failed to protect him from undue prejudice. See McClaren, 13
F.4th at 398.
Porter’s antagonistic defense argument fails for the same reason as
Telly’s. Porter primarily relies on United States v. Green, 324 F. Supp. 2d 311(D. Mass. 2004), to frame his argument that Telly was deflecting blame to
him for the alleged murders at issue. However, Porter has not demonstrated
that the codefendants’ strategies were “mutually exclusive,” as required in
this circuit. See Holcomb, 797 F.2d at 1324. The district court did not abuse
its discretion in denying Porter’s severance motion.
3. Jackson’s Motion to Sever
Jackson contends that his involvement in the alleged conspiracy was
so short-lived that he was substantially prejudiced as a result of being tried
alongside his alleged co-conspirators. This argument fails for the same
reason as Porter’s argument regarding spillover prejudice. And it is belied by
the fact that the jury acquitted Jackson of killing Jesse Reed. He was also
acquitted of other charges. Jackson argues that despite the acquittals, he was
likely convicted of RICO conspiracy simply because the jury was
“overwhelmed” by evidence attributable to his codefendants. But he points
to nothing in the record to support this conclusory statement. Thus, Jackson
has not “prove[n] that the joint trial prejudiced [him] beyond district court
protection.” See McClaren, 13 F.4th at 398.
G. Leak of Grand Jury Information
There were three superseding indictments in this case. Five days
before the second superseding indictment was returned by the grand jury, the
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Times-Picayune newspaper published confidential grand jury information in
an article discussing the defendants’ charges. 19 The Government conceded
that the article was present in the grand jury room during deliberations
regarding the second superseding indictment. Telly, Andre, Porter, and
Jackson moved for sanctions, to dismiss the indictment, and for an
evidentiary hearing into a possible violation of Federal Rule of Criminal
Procedure 6(e)(2). 20 The district court granted their request for an
evidentiary hearing, which was held in May 2014. 21 On June 19, 2014, a
different grand jury charged Telly, Andre, Jackson, Porter, and nine others
in the operative 24-count third superseding indictment.
On appeal, Porter contends that the district court erred by refusing to
allow the defendants to question the reporters regarding the potential
violation of Rule 6(e)(2). Porter frames the issue as a violation of his
constitutional rights, necessitating de novo review. However, Porter’s
argument is primarily that the district court should have expanded the scope
of the evidentiary hearing to allow additional questions about the alleged leak
and its potential effect on the grand jury’s deliberations. We review the
district court’s rulings regarding the scope of the hearing for an abuse of
19
The Government later conceded that FBI agents leaked the confidential
information to the Times-Picayune.
20
Rule 6(e)(2)(B) prohibits disclosure of “a matter occurring before the grand
jury” by a grand juror, interpreter, court reporter, operator of a recording device, person
who transcribes recorded testimony, attorney for the government, or a person to whom
disclosure is made under Rule 6(e)(3)(A)(ii) or (iii).
21
Although the Government conceded that FBI agents disclosed confidential
information, the district court held that the defendants did not meet their burden of
demonstrating prejudice from the disclosure. See Bank of Nova Scotia v. United States, 487
U.S. 250, 254 (1988) (“[A] district court may not dismiss an indictment for errors in grand
jury proceedings unless such errors prejudiced the defendants.”). The district court
therefore denied the defendants’ motions for sanctions and to dismiss.
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discretion. See United States v. Haese, 162 F.3d 359, 365 (5th Cir. 1998); see
also United States v. Skulsky, 786 F.2d 558, 562 (3d Cir. 1986) (applying abuse
of discretion standard of review when considering whether district court
erred “in limiting the scope of [an] evidentiary hearing”).
In United States v. Smith, the defendant challenged his original
indictment by alleging that it was based on prosecutorial misconduct. 697 F.
App’x 836, 837 (5th Cir. 2017) (per curiam). However, the original
indictment was dismissed after a superseding indictment was issued. Id.Because the defendant was tried on the superseding indictment, we held that
his challenge to the original indictment was moot. Id.; cf. United States v. Lee,
622 F.2d 787, 789 (5th Cir. 1980) (holding that filing of a second superseding
indictment did not moot appeal from the dismissal of the first superseding
indictment when earlier indictment remained pending).
So too here. Porter’s entire argument pertains to the second
superseding indictment. But a different grand jury issued the third
superseding indictment, about two years after the second. Porter concedes
that the second superseding indictment was dismissed. He attempts to
salvage his argument by contending that its dismissal did not cure the error
because the third superseding indictment incorporated the same error.
Porter points to no legal authority or record evidence to support that
contention. We thus find this issue moot. 22
H. Rule of Unanimity
Jackson asserts that the district court erred when it failed to instruct
the jury that it had to find Jackson guilty of Reed’s murder (Count 10), either
as a principal or accomplice, by unanimous vote. Porter and Telly adopt
22
Even if not moot, Porter’s argument is inadequately briefed and fails for that
reason as well. See Rutherford, 197 F.3d at 193; see also Sineneng-Smith, 140 S. Ct. at 1579.
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Jackson’s argument, and Andre makes a similar argument regarding the
count charged against him (Count 8). 23 Count 10 charged Jackson, Porter,
and Telly with violating 18 U.S.C. §§ 1959(a)(1) and 2. Section 1959(a)(1)
criminalizes violent crimes in aid of racketeering activity. Section 2 is the
general aiding and abetting provision. Jackson contends that because these
two crimes were both listed under Count 10, “there is no way to determine
whether the jury’s verdict . . . was unanimous,” thus violating the rule of
unanimity.
Because this issue “was not raised before the jury was charged,” we
review for plain error. See Puckett v. United States, 556 U.S. 129, 134 (2009).
But there is no error, plain or otherwise. We do not require a jury to “make
an independent determination of whether the defendant committed the
[charged] offense as a principal or as an aider and abettor. Both are sufficient
for conviction; both are treated the same for punishment.” United States v.
Williams, 449 F.3d 635, 648 (5th Cir. 2006). Jackson’s unanimity argument
therefore fails, as do Porter’s and Telly’s.
Andre and Telly contend that the aiding and abetting instruction as to
Count 8 was deficient for two additional reasons: (1) it did not include “the
necessary elements of knowledge and intent,” and (2) it “failed to make clear
that the jury was required to find that Andre ‘actively participated’ in the
predicate RICO conspiracy or drug trafficking conspiracy.” However,
because we vacate Andre’s and Telly’s convictions under Count 8 for the
reasons discussed supra in Part II, we need not address these issues further.
23
Porter and Telly seek to adopt Jackson’s argument, though Porter expands it to
encompass both Count 10 and Counts 12, 15, and 17. The Government does not contend
that the argument is “fact-specific,” such that it cannot be adopted by Jackson’s co-
defendants. See Solis, 299 F.3d at 434 n.3; Alix, 86 F.3d at 434 n.2. We therefore permit
Porter and Telly to adopt this argument.
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I. Sufficiency of the Evidence
Jackson next challenges the sufficiency of the evidence supporting his
convictions for RICO conspiracy (Count 1) and the VICAR murder of Reed
(Count 10). 24 “To prove a RICO conspiracy, the government must prove
only that the defendants conspired to violate 18 U.S.C. § 1962(c).”
McClaren, 13 F.4th at 400 (citing United States v. Nieto, 721 F.3d 357, 368 (5th
Cir. 2013)). “Section 1962(c) states that it 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.” Id. (internal quotation marks and alterations
omitted). “‘Racketeering activity’ includes state felony offenses involving
murder, robbery, extortion, and several . . . serious federal offenses including
extortion and narcotics violations.” Id. (citing 18 U.S.C. § 1961(1)). “The
nexus with interstate commerce required by RICO is minimal.” Id. at 402(quotation omitted). “The elements of [a] conspiracy ‘may be established
by circumstantial evidence and may be inferred from the development and
collocation of circumstances.’” United States v. Mendoza, 226 F.3d 340, 343
(5th Cir. 2000) (quoting United States v. Gonzalez, 79 F.3d 413, 423 (5th Cir.
1996)).
24
In part, Jackson asserts that, as to both the RICO conspiracy and Reed’s murder,
if “the evidence . . . gives equal or nearly equal circumstantial support to a theory of guilt
and a theory of innocence, [the court] must reverse the conviction, as under these
circumstances a reasonable jury must necessarily entertain a reasonable doubt.” (Quoting
United States v. Lopez, 74 F.3d 575, 577 (5th Cir. 1996) (internal quotation marks omitted)).
But this “equipoise rule” no longer governs in this circuit. See United States v. Spalding,
894 F.3d 173, 181 n.11 (5th Cir. 2018) (citing United States v. Vargas-Ocampo, 747 F.3d 299,
301–02 (5th Cir. 2014) (en banc)).
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Jackson does not challenge that there was an agreement, drug-dealing
that affected interstate commerce, or a pattern of racketeering activity. He
just argues that the evidence that he was involved in the RICO conspiracy was
insufficient. But at trial there was testimony from an alleged drug dealer,
Travis Bradley, that Bradley purchased drugs from Telly, Telly told Bradley
that he could start “dealing with his people,” and Bradley subsequently met
and dealt with Jackson, purchasing drugs from Jackson “seven, maybe eight
times.” This is sufficient to tie Jackson to the charged RICO conspiracy. See
McClaren, 13 F.4th at 400.
Jackson counters that Bradley’s testimony was unreliable because
Bradley was mistaken about when he purchased cocaine from Jackson, and
Bradley had ulterior motives in testifying against Jackson. But Jackson’s
assertion that Bradley lacked credibility, in itself, fails to show that no rational
juror could find that Jackson participated in the RICO conspiracy,
particularly when construing the evidence in the light most favorable to the
verdict. See McClaren, 13 F.4th at 402 (“Once the [G]overnment presents
evidence of a conspiracy, it only needs to produce slight evidence to connect
an individual to the conspiracy.” (quoting United States v. Virgen-Moreno, 265
F.3d 276, 285 (5th Cir. 2001))); see also United States v. Kieffer, 991 F.3d 630,
634 (5th Cir. 2021) (“[T]he jury decides credibility of witnesses, not the
appellate court.”).
Jackson also challenges his VICAR conviction springing from Reed’s
murder. See 18 U.S.C. § 1959(a)(1), (2). He contends that the phone records
indicating he called Porter 239 times leading up to Reed’s murder are
“insufficient to sustain [his] conviction,” and that the testimony of two
witnesses against Jackson was unreliable to establish that he “was aware of
and somehow supported the efforts” of Telly and Porter to murder Reed.
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“VICAR states that whoever 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.”
McClaren, 13 F.4th at 403 (citing 18 U.S.C. § 1959(a)) (internal quotation
marks and alterations omitted). “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.” Id. (citation omitted). Anyone
who “aids, abets, counsels, commands, induces or procures [the]
commission [of such an offense] is punishable as a principal.” 18 U.S.C. § 2.
There is ample evidence to support Jackson’s VICAR conviction. For
instance, an acquaintance of Telly’s and Porter’s testified that he heard that
Telly wanted to kill Reed, so the acquaintance introduced Porter and Telly.
An FBI agent testified that Jackson contacted Porter in June 2009, shortly
before Reed’s murder. The phone records establish that in the weeks leading
up to Reed’s murder, Jackson and Porter talked on the phone 239 times. The
day Reed was murdered, Jackson and Porter contacted each other 27 times.
Porter’s and Jackson’s cell phones also indicated that they were near Reed’s
house the night that he was murdered. Another witness testified that Porter
told him about two months after Reed’s murder that Porter, Telly, and
“Telly’s cousin” (i.e., Jackson) killed Reed. And Porter’s girlfriend testified
that she overheard Porter and Jackson discussing the crime and that Jackson
paid Porter $20,000 for the hit. Considering the evidence in the light most
favorable to the verdict, we conclude that a reasonable juror could find that
Jackson (at least) “was aware of and supported” Reed’s murder. See
McClaren, 13 F.4th at 400. While Jackson contends that the witnesses
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against him were unreliable, that contention fails for the same reason as
discussed supra. See Kieffer, 991 F.3d at 634.
J. Cumulative Error
Jackson’s, Porter’s, and Andre’s final argument is that their
convictions must be reversed because of cumulative error. “The cumulative
error doctrine provides that an aggregation of non-reversible errors . . . can
yield a denial of the constitutional right to a fair trial, which calls for
reversal.” United States v. Oti, 872 F.3d 678, 690 n.10 (5th Cir. 2017)
(quoting United States v. Munoz, 150 F.3d 401, 418 (5th Cir. 1998)) (internal
quotation marks omitted). “Cumulative error justifies reversal only when
errors so fatally infect the trial that they violated the trial’s fundamental
fairness.” Id. (quotation omitted).
The defendants have not established “an aggregation of non-
reversible errors” warranting reversal. Id. To the contrary, we have found
no errors, other than as related to their § 924 convictions and restitution.
Thus, the defendants’ argument that cumulative error requires reversal of
their convictions lacks merit. See United States v. Gibson, 875 F.3d 179, 199
(5th Cir. 2017).
III. Conclusion
Because the jury may have improperly relied on the charged RICO
conspiracy as a predicate for the defendants’ § 924 convictions, we
VACATE Telly’s, Andre’s, and Porter’s convictions under Counts 3, 6, 8,
11, 13, 16, and 18 and REMAND for further proceedings consistent with this
opinion. For similar reasons, we likewise VACATE Telly’s, Andre’s, and
Porter’s restitution orders and REMAND. Otherwise, the district court’s
judgment is AFFIRMED.
AFFIRMED in part; VACATED in part; REMANDED.
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James L. Dennis, Circuit Judge, concurring in part, dissenting in part:
I concur in most of my colleague’s thorough majority opinion, but I
respectfully dissent as to the sufficiency of the evidence to support Andre
Hankton’s convictions in Counts 3 and 8 for violations of 18 U.S.C. §§ 924(j)
and (o). Because the Government failed to present sufficient evidence that
Andre intended to further a drug trafficking offense, I would reverse, rather
than vacate, Andre’s convictions under Counts 3 and 8. See United States v.
Miller, 952 F.2d 866, 871 (5th Cir. 1992).
“When an insufficiency-of-the-evidence claim of error is properly
preserved through a motion for judgment of acquittal at trial, it is reviewed
de novo.” United States v. McDowell, 498 F.3d 308, 312 (5th Cir. 2007)
(quoting United States v. Ragsdale, 426 F.3d 765, 770 (5th Cir. 2005)). “[W]e
will affirm . . . if a reasonable trier of fact could conclude . . . the elements of
the offense were established beyond a reasonable doubt, viewing the evidence
in the light most favorable to the verdict and drawing all reasonable
inferences from the evidence to support the verdict.” Id. (alterations in
original) (quoting Ragsdale, 426 F.3d at 770-71). However, “to demonstrate
sufficiency, the Government ‘must do more than pile inference upon
inference.’” Id. at 314 (quoting United States v. Maseratti, 1 F.3d 330, 337 (5th
Cir. 1993)).
Sections 924(j) and (o) each require application of 18 U.S.C. § 924(c).
Section 924(j) provides a greater penalty for violations of § 924(c) that cause
a death by firearm, and § 924(o) prohibits conspiracy to violate § 924(c).
Section 924(c), in turn, prohibits using or carrying a firearm during and in
relation to a crime of violence or drug-trafficking crime, as well as possession
of a firearm in furtherance of a crime of violence or drug-trafficking crime.
The specific crime of violence and drug trafficking crime connected to
Counts 3 and 8 were, respectively, RICO conspiracy as charged in Count 1
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and conspiracy to distribute cocaine base, cocaine hydrochloride, heroin, and
marijuana, as charged in Count 2. Because, as the majority recognizes, RICO
conspiracy does not qualify as a crime of violence, the only predicate crime
Counts 3 and 8 may rest on is the drug distribution conspiracy. See United
States v. Jones, 935 F.3d 266, 271 (5th Cir. 2019).
To show that the use of firearms was “during and in relation to” a
drug trafficking crime under § 924(c), “the firearm must have some purpose
or effect with respect to the drug trafficking crime.” United States v. Smith,
481 F.3d 259, 264 (5th Cir. 2007) (quoting Smith v. United States, 508 U.S.
223, 238 (1993)). There must be evidence that the defendant “used the
weapon to protect or facilitate [a] drug operation, and that the weapons were
in some way connected to the drug trafficking.” United States v. Baptiste, 264
F.3d 578, 588 (5th Cir. 2001), modified in other respects by United States v.
Baptiste, 309 F.3d 274 (5th Cir. 2002). In order to show that possession of a
firearm was “in furtherance of” a drug trafficking crime under § 924(c), the
government must prove that the defendant possessed a firearm that
“furthers, advances, or helps forward the drug trafficking offense.” United
Stated v. Ceballos-Torres, 218 F.3d 409, 415 (5th Cir. 2000).
Count 3 charged Andre with conspiring to use and carry firearms
during and in relation to a crime of violence and a drug trafficking crime and
to possess firearms in furtherance of a crime of violence and a drug trafficking
crime, in violation of § 924(o). In order to prove conspiracy under § 924(o),
the Government must prove Andre “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. McClaren, 13 F.4th 386, 414
(5th Cir. 2021). “The government must prove the same degree of criminal
intent as is necessary for proof of the underlying substantive offense.” United
States v. Peterson, 244 F.3d 385, 389 (5th Cir. 2001).
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Count 8 charged Andre with aiding and abetting Telly Hankton in
using and carrying a firearm during and in relation to a crime of violence and
drug trafficking crime and in the course thereof causing the death of Darnell
Stewart through use of a firearm, in violation of § 924(j) and 18 U.S.C. § 2.
“[A] person is liable under § 2 for aiding and abetting a crime if (and only if)
he (1) takes an affirmative act in furtherance of that offense, (2) with the
intent of facilitating the offense’s commission.” Rosemond v. United States,
572 U.S. 65, 71 (2014); see United States v. Smith, 609 F. App’x 180, 188 (5th
Cir. 2015). “[F]or purposes of aiding and abetting law, a person who actively
participates in a criminal scheme knowing its extent and character intends
that scheme’s commission.” Rosemond, 572 U.S. at 77. Specifically regarding
§ 924(c), “the intent must go to the specific and entire crime charged—so
here, to the full scope (predicate crime [i.e., drug trafficking] plus gun use) of
§ 924(c).” Id. at 76 (emphasis added).
With these principles in mind, the evidence offered by the
Government fails to show Andre participated in Stewart’s murder with the
knowledge and intent to further the Hankton drug operation. Indeed, the
testimony cited in the Government’s brief on the sufficiency issue does not
mention Andre by name at all. Instead, the Government relies on (a) hearsay
testimony from a witness to a different murder (committed by Porter) that
unnamed people told the witness that “the Hankton family is the biggest
crime family in New Orleans”; (b) testimony from another drug dealer,
Michael Anderson, as to drug activity by other members of the Hankton
family, but not by Andre; (c) testimony from Stewart’s sister about various
shootings and murders, with no mention of drug activity on the part of Andre;
and (d) testimony from a police officer about a different shooting than the
one Andre was involved in, again, with no mention of drug activity by Andre.
On the other hand, two witnesses testified that Andre was not
involved in drug dealing; that he worked in the merchant marine and was
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absent from New Orleans for periods of time when he was on ships at sea for
work; and that he was motivated to participate in Stewart’s murder by a
desire for revenge because Stewart was involved in his brother George’s
murder. This testimony was unrebutted.
All that the Government’s evidence shows is that some of Andre’s
family was involved in drug operations, but “everyone knows that guilt of a
conspiracy cannot be proven solely by family relationship or other type of
close association.” United States v. Ritz, 548 F.2d 510, 522 (5th Cir. 1977)
(citing Causey v. United States, 352 F.2d 203 (5th Cir. 1965); United States v.
Tyler, 505 F.2d 1329 (5th Cir. 1975); United States v. Martinez, 486 F.2d 15(5th Cir. 1973)); cf. United States v. Gonzales-Perales, 313 F. App’x 677, 684
(5th Cir. 2008) (“Our precedent is well settled that the Government may
“not attempt to prove a defendant’s guilt by showing that she associates with
‘unsavory characters.’” (quoting United States v. Polasek, 162 F.3d 878, 884
(5th Cir. 1998))). Of course, it is possible that Andre could have had dual
motives to avenge George and further the Hankton drug operation. “But
possibilities, however numerous, do not supply proof,” and at trial there was
only evidence of the personal revenge motive. See Martinez, 486 F.2d at 24.
The Government’s evidence as to the actions of Andre’s relatives and
their associates does not show that Andre had the knowledge and intent to
further the Hankton drug operation, see McClaren, 13 F.4th at 414, or that he
knew the full “extent and character” of the plan to murder Stewart, including
the predicate drug distribution conspiracy, see Rosemond, 572 U.S. at 76-77.
To find such intent, one must “pile inference upon inference.” McDowell,
498 F.3d at 312 (quoting Maseratti, 1 F.3d at 337). In my view, the
Government has not met its burden as to Andre’s convictions under Counts
3 and 8, and I would accordingly reverse his convictions under those counts.
I respectfully dissent.
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