United States v. Tondwin Lewis ( 2022 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0044n.06
Nos. 19-6148/6186/6253/6254/6352
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA, ) Jan 25, 2022
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
TONDWIN LEWIS (19-6148); NERNEST ) THE WESTERN DISTRICT OF
NESBY (19-6186); DAVANTE TURNER ) TENNESSEE
(19-6253); MARKEASE ALEXANDER )
(19-6254); ARIQ RAYFORD (19-6352), ) OPINION
)
Defendants-Appellants. )
)
Before:ROGERS, STRANCH, and DONALD, Circuit Judges.
JANE B. STRANCH, Circuit Judge. Tondwin Lewis, Nernest Nesby, Davante Turner,
Markease Alexander, and Ariq Rayford (Defendants) were members of an organization called the
Conservative Vice Lords, and its Memphis-based subgroup, the Concrete Cartel. After a fifteen-
day jury trial, they were each convicted of conspiracy under the Racketeer Influenced and Corrupt
Organizations Act (RICO) and of various other offenses related to armed robberies and drug
trafficking. On appeal, each raises challenges to his conviction and/or sentence. We AFFIRM
the district court’s judgments.
I. BACKGROUND
Lewis, Nesby, Turner, Alexander, and Rayford all lived in and around Memphis,
Tennessee and were part of the “Conservative Vice Lords” (CVL), a national organization. The
Nos. 19-6148/6186/6253/6352, United States v. Lewis, et al.
members of the CVL in the Memphis area considered themselves a subgroup within CVL called
the “Concrete Cartel.” The Defendants contended that the Concrete Cartel promoted the
betterment of the members and the community in general. They do not dispute the general
hierarchy, method of communication, and customs of the organization. References to the
organization herein will include both the CVL and the Concrete Cartel unless otherwise specified.
Members of the Concrete Cartel held various positions with different responsibilities and
distinguished themselves based on rank and status. In general, members could increase their rank
by acquiring “stars,” and could gain special, nationwide notoriety through “Universal Elite” status.
Lewis, Nesby, Turner, Alexander, and Rayford were all “ranking members” of the CVL on various
levels. Turner held the highest rank and was a five-star “Minister of Command” at the state level
and a Universal Elite; Lewis was a three-star Universal Elite at the city-level; Alexander was a
three-star “Chief of Security” at the city level and a Universal Elite; Rayford was a three-star Chief
of Security at the city level; and Nesby was a three-star Chief of Security at the local level.
Members of the Concrete Cartel are expected to learn and abide by an established set of
rules. They attend weekly meetings, are restricted from eating certain foods, communicate via a
complex system of numbers and codes, act secretly, have various greetings, and have special
handshakes and oaths. When a member breaks a rule, he or she is punished.
The Government contends, and various former members of the group testified at trial, that
the overarching purpose of the Concrete Cartel is “to earn money for its members, principally
through drug trafficking and robberies.” To show this purpose, the Government called former
members who testified that members routinely robbed pharmacies and then sold the stolen
prescription drugs for profits. In addition, the record showed that members who stole drugs were
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expected to sell drugs to other members at a discounted price, allowing those members to share in
the profits from the robberies.
A. Indictment and Offenses
On May 31, 2018, Lewis, Nesby, Turner, Alexander, and Rayford were each indicted on
one count of Racketeering Conspiracy and additional counts related to their participation in armed
robberies and drug trafficking. As to the armed robberies and drug trafficking charges, various
counts were brought against Defendants related to seven robberies, which occurred on the
following dates: June 18, 2015 (Counts 2–6 against Turner); February 15, 2016 (Counts 7–9
against Rayford); April 30, 2016 (Counts 10–13 against Nesby); May 1, 2016 (Counts 14–18
against Nesby); July 22, 2016 (Counts 19–23 against Alexander); November 1, 2016 (Counts 24–
31 against Alexander, Turner, and Lewis); and July 5, 2017 (Counts 32–34 against Turner and
Lewis). Defendants pleaded not guilty to all counts brought against them.
On July 13, 2018, and on June 3, 2019, the Government moved to dismiss Counts 24–31
against Lewis and Turner, respectively. The district court granted those motions on July 17, 2018,
and June 3, 2019.
B. Jury Trial and Sentencing
On June 3, 2019, a jury trial began, which spanned fifteen days. All five co-Defendants
were tried in tandem. On June 24, 2019, the jury returned its verdict finding Lewis, Turner, Nesby,
Alexander, and Rayford guilty on all counts charged, except for Counts 2–6 against Turner.
Thereafter, they were each individually sentenced to various terms of incarceration.
II. ANALYSIS
On appeal, Lewis, Nesby, Turner, Alexander, and Rayford raise challenges to: the
sufficiency of evidence as to the RICO conspiracy convictions and their robbery convictions;
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constitutional and evidentiary errors regarding the trial; and, their individual convictions and
sentences. We address these matters in turn.
A. Sufficiency of the Evidence Challenges to Jury Verdict
Lewis, Turner, Nesby, Alexander, and Rayford all raise sufficiency of the evidence
challenges to their RICO conspiracy convictions. Alexander and Turner separately raise
challenges related to the robberies in which they were implicated.1
1. Standard of Review
The standard of review for sufficiency of evidence challenges varies depending on whether
a defendant’s argument was properly preserved before the district court. See, e.g., United States
v. Kuehne, 547 F.3d 667, 696–97 (6th Cir. 2008). Where a claim was properly preserved—the
defendant made a motion pursuant to Federal Rule of Criminal Procedure 29 (Rule 29 motion)
both at the end of the prosecution’s case-in-chief and at the close of evidence—the sufficiency of
evidence claim is reviewed de novo. Under the de novo standard, the evidence is viewed in the
light most favorable to the jury’s verdict and the critical question is whether “any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.” United
States v. Fisher, 648 F.3d 442, 450 (6th Cir. 2011) (quoting Jackson v. Virginia, 443 U.S. 307,
319 (1979)) (emphasis in original). A defendant bears a heavy burden and circumstantial evidence
alone, if substantial and competent, may sustain a conviction. See United States v. Tarwater,
308 F.3d 494, 504 (6th Cir. 2002) (citing United States v. Humphrey, 279 F.3d 372, 378 (6th Cir.
1
In his briefing, Lewis also raises a sufficiency of the evidence challenge to his Hobbs Act Robbery conviction,
contending that he was “incapable of forming the intent to commit the crime” because he was intoxicated. At oral
argument, held on October 26, 2021, counsel for Lewis confirmed that the issue was being waived. Accordingly, the
court will not reach the merits of that issue.
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2002)). Because Turner and Nesby properly renewed their motions at the close of all evidence,
their sufficiency of the evidence claims are reviewed de novo.
Not all of the Defendants renewed their Rule 29 motion at the close of evidence. Where a
defendant fails to renew his or her Rule 29 motion after the close of evidence, that defendant’s
sufficiency of evidence challenges are reviewed under a “manifest miscarriage of justice” standard.
See Kuehne, 547 F.3d at 697. Under this standard, a conviction is reversed only “if the record is
‘devoid of evidence pointing to guilt.’” United States v. Carnes, 309 F.3d 950, 956 (6th Cir. 2002)
(quoting United States v. Abdullah, 162 F.3d 897, 903 (6th Cir. 1998)). Alexander and Rayford
initially raised “general” motions under Rule 29. And Lewis raised specific grounds for his Rule
29 motion pertaining to his RICO conspiracy conviction.2 But they did not renew their motions
after the close of evidence. Thus, the manifest miscarriage of justice standard applies to Lewis’s,
Alexander’s, and Rayford’s sufficiency of the evidence challenges.
2. RICO Conspiracy
A defendant violates RICO if he “conduct[s] or participate[s], directly or indirectly, in the
conduct of [an] enterprise’s affairs through a pattern of racketeering activity,” or conspires to do
so. 18 U.S.C. § 1962(c)–(d). Defendants are charged with a RICO conspiracy, and thus, the
Government must “prove four elements: agreement, to conduct or participate, in an enterprise,
through a pattern of racketeering activity.” United States v. Gills, 702 F. App’x 367, 373 (6th Cir.
2017) (citing Salinas v. United States, 522 U.S. 52, 62–63 (1997)).
2
Lewis raised specific grounds for his Rule 29 motion, all of which pertained to his RICO conspiracy conviction.
Ordinarily, this waives all grounds not specified. United States v. Porter, 886 F.3d 562, 556 (6th Cir. 2018). However,
the only remaining challenges he raises involve the RICO conspiracy conviction, which have not been waived and are
therefore subject to review.
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Lewis, Turner, Nesby, Alexander, and Rayford raise various attacks on the sufficiency of
evidence that supports their RICO conspiracy convictions. Because Turner and Nesby, whose
sufficiency of the evidence claims are reviewed de novo, raise some of the same arguments as
Lewis, Alexander, and Rayford, we review those overlapping claims de novo, noting that a failure
to surmount this standard of review also constitutes a failure to show a manifest miscarriage of
justice.
a. Enterprise
Lewis, Alexander, Rayford, and Nesby contend that the Government provided insufficient
evidence to establish the existence of an “enterprise.”
A RICO enterprise includes “any union or group of individuals associated in fact.”
18 U.S.C. § 1961(4). This definition is broad in scope. A group qualifies under the statute if it
has “a purpose, relationships among those associated with the enterprise, and longevity sufficient
to permit these associates to pursue the enterprise’s purpose.” Boyle v. United States, 556 U.S.
938, 946 (2009). Even informal organizations may meet the statutory definition: groups need not
possess a “hierarchical structure or a chain of command”; “decisions may be made on an ad hoc
basis and by any number of methods”; members “need not have fixed roles”; and “[t]he group
need not even have a name, regular meetings, dues, established rules and regulations, disciplinary
procedures, or induction or initiation ceremonies.” Id. at 948.
In this case, multiple prosecution witnesses testified that the Concrete Cartel is an existing
enterprise under Boyle. According to one former member, Clemeko Starks, the purpose of the
group was to facilitate making profits by robberies and drug sales. Another former member,
Darnell Jordan, joined for protection to increase profits and better notoriety in the Memphis
community. Former members further testified that the members of the group advanced its purpose
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by robbing pharmacies and then selling the drugs to others for profit or to members at a discount.
The members of the enterprise “protected” each other by providing access to guns, delivering
additional support to execute successful robberies through the enterprise’s network of affiliated
people, and affording protection from people who robbed drug dealers. Finally, there was a clear
relationship among the members of the group through the various meetings and customs which the
membership followed for a period of several years. This evidence was sufficient to allow a rational
jury to conclude that the Concrete Cartel was a RICO enterprise within the definition of Boyle.
556 U.S. at 946.
Defendants have several responses. They argue that the organization was benign because
it did not explicitly sanction crimes at its meetings and as a result, any crimes were sanctioned on
an individual level—often on the spur of the moment—not by the Concrete Cartel organization.
They contend that none of the profits or stolen drugs went directly to the organization’s
membership but that they were distributed among those who committed the robbery. While
Defendants provide alternative, benign explanations to make sense of the circumstances, several
witnesses testified that they joined the group for the explicit purpose of advancing their drug sale
profits. Concrete Cartel members supported each other, shared weapons with each other, stole
drugs together, and redistributed the stolen drugs together for the benefit of the individual
constituents of the group. This coordination shows that the Concrete Cartel was a RICO enterprise,
regardless of whether the robberies occurred on an ad hoc basis by some members or whether the
perpetrators of the robberies shared the profits with the centralized, named organizations. See,
e.g., Gills, 702 F. App’x at 374; United States v. Kamahele, 748 F.3d 984, 1004 (10th Cir. 2014).
It follows that there was sufficient proof for a reasonable jury to conclude (as the jury did here)
that the organization constituted a RICO enterprise.
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Rayford, whose claim is reviewed under the manifest miscarriage of justice standard,
separately argues that because the Government failed to prove every attribute alleged in the
indictment regarding the group’s structure and activities, it failed to prove a RICO enterprise. But
even assuming Rayford is correct that certain allegations of the indictment were not fully proven,
“[a] part of the indictment unnecessary to and independent of the allegations of the offense proved
may normally be treated as ‘a useless averment’ that ‘may be ignored.’” United States v.
Weinstock, 153 F.3d 272, 279 (6th Cir. 1998) (quoting United States v. Miller, 471 U.S. 130, 136
(1985)). Rayford has offered no explanation as to how any variances between the Government’s
conspiracy indictment and the evidence adduced at trial—which ultimately led the jury to convict
Defendants on the RICO conspiracy charge—materially differed. See United States v. Martinez,
981 F.2d 867, 872 (6th Cir. 1992) (“A variance occurs when the evidence offered at trial differs
materially from the charge in the indictment.”). In any case, Rayford was indicted for a RICO
conspiracy, the jury heard evidence from several prior members of the organization regarding its
purpose, internal relationships, and longevity, and the jury ultimately concluded that the elements
of the conspiracy—including whether an enterprise within the meaning of a RICO conspiracy
existed—were proven beyond a reasonable doubt. Thus, the evidence presented at trial led the
jury to reach the very conclusion charged in the indictment: that the Concrete Cartel satisfied the
definition of a RICO enterprise.
Rayford fails to carry his burden to demonstrate that the record was devoid of any evidence
that would allow the jury to conclude that the Concrete Cartel was a RICO enterprise.
b. Pattern of Racketeering
Lewis and Turner both contend that their RICO conspiracy convictions cannot be sustained
because the Government failed to establish a “pattern of racketeering activity.” Specifically, they
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both assert that they could not be convicted of a RICO conspiracy, where they were involved in
only one predicate scheme.
Under a substantive RICO charge, a “pattern of racketeering activity” requires “at least
two” predicate acts. 18 U.S.C. § 1961(5). However, “[u]nlike a substantive RICO charge, a RICO
conspiracy charge does not require proof that the defendant committed any predicate acts.” United
States v. Fowler, 535 F.3d 408, 421 (6th Cir. 2008) (emphasis added). Rather, it requires only
proof that the defendant “intend[ed] to further an endeavor which, if completed, would satisfy all
of the elements of a substantive [RICO] offense, [and] it suffices that he adopt the goal of
furthering or facilitating the criminal endeavor.” Salinas, 522 U.S. at 65. When a defendant does
commit predicate acts implicated in a substantive RICO offense, those acts are sufficient proof
that he agreed to commit them to sustain a RICO conspiracy conviction. See United States v.
Lawson, 535 F.3d 434, 445 (6th Cir. 2008).
Lewis and Turner were convicted of several predicate acts. Both were convicted of Hobbs
Act robbery (Count 32), brandishing and discharging a firearm in relation to a crime of violence
(Count 33), and attempt to knowingly and intentionally possess with the intent to distribute
Oxycodone (Count 34). And these acts were connected to the enterprise as they were within the
scope of the RICO enterprise charged in the case and furthered that enterprise. Thus, a rational
jury could find that Lewis and Turner committed—and thus agreed to commit—sufficient
predicate offenses that furthered the criminal endeavor.
Lewis additionally argues that because the counts involving the robbery, brandishing and
discharging of a firearm, and attempt to knowingly and intentionally possess Oxycodone with the
intent to distribute, all concerned “one robbery,” those counts collectively amount to only one
predicate act. As noted above, though, one predicate act is sufficient to sustain a RICO conspiracy
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conviction, and each offense constitutes a separate predicate act, even though they were related by
the single robbery. See, e.g., Lawson, 535 F.3d at 444. In Lawson, we held that even though the
two drug distribution charges were related to the broader charge of conspiracy to distribute
controlled substances among the entire enterprise, the three offenses constituted separate predicate
acts for RICO purposes. Id. “All that is now required for a RICO offense is the commission of
two predicate offenses which the state defines as separately chargeable and separately punishable.”
United States v. Licavoli, 725 F.2d 1040, 1053 (6th Cir. 1984) (Merritt, J., concurring).
Both Lewis and Turner were charged with three separate offenses, each of which was
separately punishable. Their argument that they were convicted of only one predicate act,
therefore, fails as a matter of law. In any case, their convictions for the separate predicate offenses
support the jury’s conclusion that Turner and Lewis engaged in a pattern of racketeering activity
that supports a RICO conspiracy conviction.
c. Connection Between Predicate Acts and RICO Enterprise
Nesby, Rayford, and Turner next contend that there is insufficient proof that their
racketeering acts were connected to the illegal enterprise. In so contending, they take issue with
the relationship prong of the “relationship plus continuity” test employed under the RICO statute.
See United States v. Corrado, 227 F.3d 543, 554 (6th Cir. 2000) (quoting Sedima v. Imrex Co.,
473 U.S. 479, 496 n.14 (1985)).
Under the relationship prong, “[t]he business of a criminal enterprise is crime [and its]
crimes form a pattern defined by the purposes of the enterprise.” Id. (quoting United States v.
Masters, 924 F.2d 1362, 1366 (7th Cir. 1991)) (alterations in original). By this definition,
predicate acts can be linked to the enterprise by evidence that “(1) the defendant was enabled to
commit the offense solely by virtue of his position in the enterprise; or (2) the offense was related
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to the activities of the enterprise.” Id. (quoting United States v. Locascio, 6 F.3d 924, 943 (2d Cir.
1993)) (emphasis added).
As discussed above, the Concrete Cartel’s purpose was to facilitate drug dealing, protect
its affiliates, and make higher profits from drug sales. The Government presented evidence that
Nesby, Rayford, and Turner robbed various pharmacies and stores for drugs in the presence of
others affiliated with the Concrete Cartel. Former members of the Concrete Cartel testified that
the members would routinely rob pharmacies and redistribute the proceeds from the robberies
among themselves or other affiliated members. From this evidence, a rational jury could
reasonably infer that Nesby, Rayford, and Turner’s robberies and drug trafficking activities were
an extension of the Concrete Cartel’s activities. Thus, Nesby, Rayford, and Turner fail to satisfy
their burden to show that any rational trier of fact would not have found a connection between
their acts and the RICO enterprise. See Fisher, 648 F.3d at 450.
3. Robbery-Related Convictions
Alexander and Turner each challenge the sufficiency of the evidence concerning the
convictions which resulted from their robberies.
a. July 22, 2016, Robbery (Alexander)
Alexander’s convictions were for a robbery on July 22, 2016, during which he and his
accomplices entered a CVS pharmacy wearing masks and ordered everyone to get down. One of
the men located the pharmacist, forced the pharmacist to turn over the pharmacy’s opioids, and
then left with over 5,000 pills, worth more than $32,000. Alexander was not apprehended directly
following the robbery.
At trial, the Government sought to prove Alexander’s involvement in the crime through
several pieces of circumstantial evidence. First, the Government provided cell phone location data
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showing that Alexander’s cell phone traveled to the CVS, was present at the time of the robbery,
and then traveled away from the area afterward. Second, the Government provided evidence from
a security camera of a resident who lived across the street from the CVS showing that Alexander’s
car was near CVS at the time of the robbery. Jodeci Hill, a prosecution witness and Alexander’s
longtime girlfriend, identified that car as Alexander’s car. Third, a CVS employee who fled the
robbery testified that he noticed that one of the robbers was wearing a unique pair of sneakers.
When shown a picture of the shoes that Alexander wore, the CVS employee identified them as
being nearly identical to the shoes he saw at the robbery. Fourth, Hill testified that Alexander told
her that he committed the robbery on July 22, 2016. And finally, a fellow member of the Concrete
Cartel and prosecution witness, LaShawn Shannon, testified that Alexander was in possession of
the pills after the July 2016 robbery, and that when Alexander referred to a “pill situation” during
a jail-cell call, he understood that Alexander was referring to the July 2016 robbery.
Alexander claims that the evidence at trial discussed above was insufficient to establish
that he was one of the perpetrators of the robbery. In support of his claim, he makes three factual
points. First, Hill testified at trial that the only pills Alexander had after the robbery were Xanax,
a type of pill that was not stolen in the July 2016 robbery. Second, the shoes identified are “hardly
a unique sighting akin to a unicorn in American society.” And finally, Hill’s memory was not
clear and thus “it is entirely plausible that Ms. Hill was confused as to ‘which’ robbery he was
discussing.”
As noted, because Alexander did not renew his Rule 29 motion at the close of all evidence,
his claim is reviewed for manifest miscarriage of justice, i.e., whether the record is devoid of any
evidence pointing to his guilt. Even excluding the evidence with which Alexander takes issue, the
record on the whole contains other inculpatory evidence—including that his car and cell phone
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were present at that CVS at the time of the robbery—sufficient to allow the jury to conclude that
Alexander was one of the perpetrators of the July 2016 robbery. In short, the record was not devoid
of any evidence that would allow the jury to conclude that Alexander was a perpetrator in the
robbery. That Alexander can point to other, plausible explanations regarding some of the evidence
does not satisfy his burden. See, e.g., United States v. Romero, 57 F.3d 565, 570 (7th Cir. 1995)
(“Alternative explanations alone, even if plausible, do not ordinarily overcome the defendant’s
burden in challenging the sufficiency of the evidence.”).
b. July 5, 2017, Robbery (Turner)
Turner was convicted of a robbery which occurred on July 5, 2017 (Counts 32–34). At
that robbery, three men—Turner, Lewis, and another Concrete Cartel member, William Pinkney—
entered a CVS wearing masks and armed. A pharmacist in the store was able to call 911, but one
of the three men found the pharmacist and fired a shot as he ordered him to the pharmacy. The
men ultimately fled after hearing the sirens.
The police officer who responded to the scene saw Lewis running across the parking lot
next to the CVS and apprehended him. He was wearing latex gloves and was in possession of a
gun. Thereafter, Lewis began vomiting in the officer’s car and he was taken to the hospital for
medical treatment. Subsequently, another officer saw two men run across the street from the CVS.
He and several other officers searched the area and found Turner and Pinkney hiding in a large
commercial dumpster. When questioned regarding what they were doing there, Pinkney told the
officer “he live[d] there.”
At the place where Pinkney and Turner were apprehended, police found latex gloves and a
gun. And nearby, the police officers found a red sweatshirt, which the surveillance video showed
matched the sweatshirt worn by one of the robbers. The video showed that the masked robber in
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the red sweatshirt also wore gray sweatpants and blue sneakers—both of which Turner wore when
he was apprehended. In addition, the clothing worn by the second robber in the video—black
pants, black Nike sneakers, and a black coat—matched the clothing worn by Pinkney at the time
of his arrest.
Turner contends that this evidence was insufficient to support his convictions because there
was no direct testimony identifying him as a perpetrator in the robbery; he was not found in
possession of any stolen items, narcotics, or firearms; and he did not confess to any involvement
in the robbery. Turner argues that “mere proximity [is] insufficient to establish that a defendant
aided and abetted in the commission of a criminal offense.”
Here, however, evidence beyond mere proximity to the robbery exists. Indeed, the
arresting officer testified that the clothing which Turner and Pinkney wore when they were arrested
matched the clothing worn by the two robbers in the video. Photographs were also submitted for
the jurors to draw their own independent conclusions. And Turner omits the fact that when he was
apprehended by the police, latex gloves and a gun were also found in the dumpster area. Turner
provides no analysis to explain why this evidence would be insufficient for a jury to conclude that
he was a perpetrator of the robbery. The jury is entitled to “tak[e] into account ‘their own wisdom,
experience, and common sense’ when evaluating the evidence admitted at trial.” Thompson v.
Parker, 867 F.3d 641, 648 (6th Cir. 2017) (quoting Doan v. Brigano, 237 F.3d 722, 734 (6th Cir.
2001)). Based on the evidence and construing it in the light most favorable to the jury verdict, a
rational jury could find, as this jury did, that Turner was one of the perpetrators of this robbery.
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B. Constitutional Challenges
Turner and Rayford raise one constitutional challenge. Both contend that their Sixth
Amendment right to a public trial was violated by the exclusion of two spectators from the trial
for approximately twenty minutes.
The facts regarding this issue are not disputed by the parties. On June 6, 2019, Defendant
Turner’s girlfriend, Jerrica Tyson, was present for the trial with a female companion. During trial,
Deputy U.S. Marshal Cook observed Tyson and her friend speaking loudly and distracting jurors.
Consequently, he made eye contact with them to indicate that they stop speaking loudly.
The next day, Tyson and her friend were present again. Throughout the day, Deputy
Marshal Cook observed them speaking loudly, at which point he asked them both to come out in
the hallway. He told them to stop speaking during the proceedings and then allowed them to re-
enter the courtroom. When they re-entered the courtroom, the Government was engaged in the
direct examination of one of its witnesses. This time, a case agent for the Government, Officer
Scott Edwards, recognized Ms. Tyson and noticed that she was holding a notepad with the word
“snitch” written on it and the names “Issue Cooks” and “Michael Taylor.” Officer Edwards
became suspicious that Tyson could be attempting to intimidate a witness and requested that she
follow him out of the courtroom to the hallway. When Turner realized that she had left the
courtroom, he directed Tyson’s companion to find out what had happened. Deputy Marshal Cook
then followed the companion outside, at which point Cook told her and her friend that they could
not attend the trial for the rest of the day. At that time, Officer Edwards also seized Tyson’s
notebook, took a picture of her driver’s license, and told her to leave the trial. About twenty
minutes later, the Government’s witness completed his direct examination, and the court recessed
for lunch.
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During lunch, the court was informed of the incident. The district judge stated that he
“didn’t know anything like that was going on” and was “very concerned about it.” The court gave
defense counsel an opportunity to contact Tyson and her friend and ask them to return, which
defense counsel declined to do. After the jury was dismissed for the day, Turner’s counsel moved
for a mistrial.
The following morning, the court decided that it needed a hearing to develop the issue on
the record. Following the receipt of testimony and evidence on the record, the court concluded
that there had been no courtroom closure that implicated the Sixth Amendment and therefore
denied Turner’s motion for a mistrial. The court stated that it “did not take an affirmative step to
prevent anyone from entering into the court.” The court reiterated that Tyson and her companion
were only excluded for about 20 minutes, after which it “gave the defense an opportunity to call
and have them come back” but “they declined.” The court also ruled that even if the exclusion
constituted a partial courtroom closure under the Sixth Amendment, it was permissible because
preserving court decorum and addressing potential threats to witnesses provided a substantial
reason to ask the spectators to leave. It noted that the response was sufficiently tailored to the
circumstances.
In considering whether a courtroom closing violated the Sixth Amendment, questions of
law are reviewed de novo and questions of fact are reviewed for clear error. United States v.
Simmons, 797 F.3d 409, 412 (6th Cir. 2015).
In general, depriving a defendant of his or her Sixth Amendment right to a public trial is a
“structural defect affecting the framework within which the trial proceeds” that requires reversal
regardless of whether the defendant demonstrates that the error prejudiced some substantive right.
See Arizona v. Fulminante, 499 U.S. 279, 310 (1991). But “[i]t does not necessarily follow . . .
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that every deprivation in a category considered to be ‘structural’ constitutes a violation of the
Constitution or requires reversal of the conviction, no matter how brief the deprivation or how
trivial the proceedings that occurred during the period of deprivation.” Gibbons v. Savage,
555 F.3d 112, 120 (2d Cir. 2009). Indeed, “courts have consistently refused to find Sixth
Amendment violations when a courtroom closure is so limited.” United States v. Arellano-Garcia,
503 F. App’x 300, 305 (6th Cir. 2012) (citing Gibbons, 555 F.3d at 121; United States v. Perry,
479 F.3d 885, 890–91 (D.C. Cir. 2007); United States v. Al-Smadi, 15 F.3d 153, 154–55 (10th Cir.
1994); United States v. Sherlock, 962 F.2d 1349, 1357–58 (9th Cir. 1989)). In such cases, a
defendant’s Sixth Amendment right hinges on whether the asserted closure contravenes the values
advanced by the public trial guarantee, “which include (1) ensuring a fair trial; (2) reminding the
government and the judge ‘of their responsibility to the accused and the importance of their
functions’; (3) encouraging witnesses to come forward; and (4) discouraging perjury.” United
States v. Greene, 431 F. App’x 191, 195 (3d Cir. 2011) (quoting Peterson v. Williams, 85 F.3d 39,
43 (2d Cir. 1996)).
In Greene, the Third Circuit dealt with a “closing” similar to this one. There, a court
security officer—unbeknownst to the court—temporarily excluded the defendant’s brother from
the courtroom. Id. at 193–94. In concluding that the closing was sufficiently limited that it did
not implicate the Sixth Amendment, the Third Circuit focused on the facts that the partial closure
occurred unbeknownst to the district judge; the closure was limited in scope and therefore unlikely
to jeopardize the aims served by the Sixth Amendment; and the closure was not subsequently
ratified by any affirmative act of the court. Id. at 196–97. Here, too, the partial closure occurred
without the district judge’s knowledge—in fact, the district judge was not notified until after the
two spectators had already been excluded. At that point, the district judge instructed the defense
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counsel to notify Tyson and her companion that they could return to the courtroom, which defense
counsel ultimately declined to do. In addition, the district judge specifically admonished the
Government for its actions, indicating that it was not ratifying that action. Although the
Government’s actions in this circumstance are troubling, based on the entire record, we cannot say
that the incident implicated Defendants’ Sixth Amendment rights because the incident did not
undermine the values advanced by the public trial guarantee.
C. Evidentiary Challenges
Turner and Nesby both raise several evidentiary challenges, which they contend warrant
reversal of their convictions. We address the challenges in turn.
1. Standard of Review
In general, evidentiary rulings are reviewed for abuse of discretion. See United States v.
Johnson, 581 F.3d 320, 326 (6th Cir. 2009). However, a district court’s ultimate legal conclusion
as to admissibility is reviewed de novo. United States v. Maliszewski, 161 F.3d 992, 1007 (6th
Cir. 1998). Any evidentiary error is also subject to harmless error analysis. See United States v.
Kettles, 970 F.3d 637, 643–45 (6th Cir. 2020).
2. Turner’s Challenges
Turner raises four evidentiary challenges. First, he contends that the district court abused
its discretion by admitting a post-arrest jail call between Lewis and an unidentified individual to
whom Lewis made admissions about the July 5, 2017, robbery and mentioned Turner’s
involvement by referring to his nickname, “Star.” At trial, Lewis invoked his Fifth Amendment
right not to testify and therefore was unavailable under the Federal Rules of Evidence. Turner
objected, arguing that the jail-cell records were inadmissible against him and that the admission
violated the Confrontation Clause of the Sixth Amendment. The Government maintained that the
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statements were admissible against Lewis as admissions of a party opponent under Federal Rule
of Evidence 801(d)(2)(3) and admissible against Turner as statements against penal interest under
Federal Rule of Evidence 804(b)(3), and also requested a limiting instruction stating that the
evidence could be used only against Lewis, not Turner. The district court agreed to the limiting
instruction, telling the jury to disregard any reference to Turner in the records and that the records
should not be used for any purpose other than to determine Lewis’s guilt.
Turner continued to maintain that the records were inadmissible against him, but retracted
his Sixth Amendment argument, asserting instead that the statement was inadmissible under the
Federal Rules of Evidence and should result in a mistrial because the curative instruction was
inadequate. The district court disagreed, concluding that the limiting instruction was an adequate
curative measure. When the jury later retired to deliberate, the court again reiterated its instruction
that the jail call between Lewis and the unidentified individual could only be used “in deciding
whether the government proved [Lewis] guilty” and the jury could not “consider it in any way
against any of the other defendants.”
On appeal, Turner maintains that the district court erred when it allowed hearsay to be
admitted under the “co-conspirator” exception. Turner also argues that the admission of the
statements was not harmless, but cites caselaw under the Confrontation Clause, because the jury
instruction was inadequate to limit the jury’s use of such an incriminating statement. The
Government responds that the court did not abuse its discretion because the judge issued a limiting
instruction to the jury, the statements could have been admitted against Turner as a statement
against penal interest by Lewis under Federal Rule of Evidence 804(b)(3), and the admission
constituted harmless error.
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Regarding prejudice, the district court issued limiting instructions to the jury on two
occasions to limit the jury’s consideration of the calls as to Lewis only, and not Turner. Juries are
generally presumed to follow their instructions. See United States v. Johnson, 803 F.3d 279, 282
(6th Cir. 2015). The district court therefore did what the Federal Rules of Evidence require: it
“restrict[ed] the evidence to its proper scope and instruct[ed] the jury accordingly.” Fed. R. Evid.
105.
As to harmless error, moreover, despite Turner’s concerns about the effectiveness of the
jury instructions, the other evidence that Turner committed the July 2017 robbery was
substantial—and a sufficient basis for a reasonable jury to conclude that Turner was implicated in
the robbery. The record includes the following. Turner was apprehended near a dumpster near
the CVS following the robbery. He was wearing grey sweatpants and blue sneakers, and a red
sweatshirt was located near the dumpster—all of which matched one of the perpetrators shown by
the security camera. A gun and latex gloves were also found in the dumpster area. And finally,
the clothes that Pinkney—who was also apprehended in the dumpster area with Turner—matched
the clothes that were worn by the other perpetrator in the security camera. In short, these facts
would permit a reasonable jury to conclude that Turner was a perpetrator in the July 2017 robbery.
Thus, the admission of the jail calls against Lewis did not have “a substantial and injurious effect
or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)
(quoting Kotteakos v. United States, 328 U.S. 750, 775 (1946)).
Turner’s reliance on Bruton v. United States, 391 U.S. 123, 135–36 (1968), a case
involving the Confrontation Clause, in his harmless error analysis is misplaced. There, the
Supreme Court found that “there are some contexts in which the risk that the jury will not, or
cannot, follow instructions is so great, and the consequences of failure so vital to the defendant,
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that the practical and human limitations of the jury system cannot be ignored.” Id. at 135. This
concern is particularly salient in testimonial situations, “where the powerfully incriminating
extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are
deliberately spread before the jury in a joint trial. . . . The unreliability of such evidence is
intolerably compounded when the alleged accomplice . . . does not testify and cannot be tested by
cross-examination.” Id. at 135–36. But as the district court concluded, and as Turner’s counsel
conceded, the Sixth Amendment is not implicated in this case because it does not involve
testimony. Thus, because the Sixth Amendment is not implicated, those concerns do not apply
with the same force here. And Turner points to no other error constituting prejudice in admitting
the statements against Lewis. For these reasons, and in reviewing the entire record, it is clear “that
the judgment was not substantially swayed by the error.” United States v. Warman, 578 F.3d 320,
340 (6th Cir. 2009) (quoting Kotteakos, 328 U.S. at 765).
Second, Turner challenges the district court’s admission of Lewis’s post-arrest statements.
At trial, during its direct examination of an arresting officer, the Government elicited the following
testimony regarding Lewis’s statements at the time of his arrest:
Q. And did the person say anything to you?
A. Once the arrest was made?
Q. Yes.
A. He said a few words as far as being arrested or he don’t have anything on him at
the time.
Q. Did he say anything else to you specifically about if you were somebody else?
A. Oh, yes. Once we was in the hospital and my bodycam at this time, it was going
out, made a statement if I was a white person he probably would have killed me.
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Q. A white person or white cop?
A. A white cop.
(R. 669, PageID 4939–40)
Following this exchange, Turner’s counsel—not Lewis’s counsel—objected to the
statement—“if I was a white person, he probably would have killed me”—contending that such a
statement was not relevant under Federal Rule of Evidence 401. The district court concluded that
it was “marginally” relevant as a statement of a party opponent that was made at the time he was
arrested. On appeal, Turner contends that because “the Government is seeking to prove a robbery
and, more broadly, a racketeering conspiracy, the officer’s testimony as to a co-defendant’s
potential racial prejudice or animus towards police officers is wholly unrelated, irrelevant, and in
fact highly inflammatory, such that the admission of said testimony by the district court was an
abuse of discretion.” Turner’s argument focuses on the prejudicial effect of the entry of that
statement, which implicates Fed. R. Evid. 403.
In general, a district court’s determination of relevance under Fed. R. Evid. 403 is given
substantial deference, and a district court’s “decision will not be disturbed if substantial injustice
did not result.” United States v. Cleveland, 907 F.3d 423, 436 (6th Cir. 2018) (quoting Kovacevich
v. Kent State Univ., 224 F.3d 806, 832 (6th Cir. 2000)).
Setting aside whether the statement was relevant under Fed. R. Evid. 401, and the analysis
of the probative value of the evidence, Turner has not pointed to any substantial injustice that
resulted from its inclusion on the record that would warrant exclusion under Federal Rule of
Evidence 403 or demonstrate that the admission of the statement did not constitute harmless error.
While he points out “the lack of diversity among the venire” and significant concerns of racial
prejudice and bias, all of which are well taken, he does not explain how the admission of this
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testimony alone led the jury to convict him on impermissible grounds. The testimony does not
nullify the other evidence that the Government presented against him, based on which the jury was
reasonably allowed to draw its own conclusions as to Turner’s guilt. Because Turner points to no
substantial injustice resulting from the admission of this statement, the district court did not err in
permitting the testimony.
Third, Turner contends that the district court “erred in allowing testimony related to the jail
fight that occurred between a cooperating witness and two co-defendants because there was
improper notice of the Government’s intent to introduce said evidence which resulted in severe
prejudice to Turner’s defense.” In so arguing, Turner relies on Federal Rule of Criminal Procedure
16, Brady v. Maryland, 373 U.S. 83 (1963), and Federal Rule of Evidence 403.
By way of background, shortly before trial, the Government learned that Turner and Nesby
had “physically attacked” McCalleum, a cooperating witness, in prison and called him a “snitch.”
On the same day, the Government informed Turner and Nesby’s counsel of the discovery and
directed the U.S. Marshal to investigate. On June 4, 2019, the Government received an e-mail
from the prison, which the Government disclosed to defense counsel, stating that the incident had
occurred and was captured on video. Thereafter, the Government learned that the prison was no
longer in possession of the video because videos are only retained for 90 days, and the incident
had occurred in February 2019. Turner sought to exclude evidence about the incident on the
grounds that he had received inadequate notice. The district court denied the motion, concluding
that the Government acted in good faith, with reasonable diligence, and that Defendants
themselves were present and involved in the incident and could testify about it.
We address in turn each argument raised by Turner regarding the jail fight. Federal Rule
of Criminal Procedure 16 requires the Government to disclose documents if they are “within the
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government’s possession, custody, or control” and material to a defendant’s defense, intended for
presentation during the government’s case-in-chief, or obtained from or belonging to defendant.”
Fed. R. Crim. P. 16(a)(1)(E). Alleged violations under Federal Rule of Criminal Procedure 16 are
reviewed by considering: “(1) the reasons for any delay in producing materials, including ill intent
or bad faith; (2) the degree of prejudice, if any to the defendant; and (3) whether any prejudice
may be cured with a less severe course of action like a continuance or a recess.” United States v.
Robinson, 272 F. App’x 421, 433 (6th Cir. 2007). “[S]uppression of evidence must be viewed as
an undesirable remedy reserved for cases of incurable prejudice or bad faith conduct demanding
punishment by the court.” United States v. Maples, 60 F.3d 244, 247 (6th Cir. 1995).
There is no dispute among the parties that the Government did not act in bad faith. While
Turner argues that the failure to disclose led to “incurable prejudice,” it appears, as the district
court concluded, that these concerns could have been addressed by rebuttal evidence. The
individuals implicated in the fight were co-Defendants at trial, and Turner could have testified
regarding his own knowledge of what transpired. Turner provides no response as to why his own
testimony would have been insufficient to rebut the testimonial evidence that the district court
permitted. Accordingly, the record does not show error under Federal Rule of Criminal Procedure
16.
Next, Turner relies on Brady v. Maryland, 373 U.S. 83 (1963), asserting that “the
Government had a duty to timely provide defendants with exculpatory evidence.” True, but here
the evidence—that Turner and Nesby attacked a cooperating witness because he divulged
confidential and incriminating information—does not aid in proving Turner’s innocence. To the
contrary, it points to his participation in the enterprise and the inner workings of that enterprise.
In other words, the evidence here is inculpatory, not exculpatory, and thus Brady is inapposite.
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Finally, Turner relies on Federal Rule of Evidence 403 to contend that the probative value
of the testimony was outweighed by the fact that other “testimony to that same effect had already
been produced for the jury’s consideration.” Turner concedes that the evidence here contains some
probative value, particularly regarding his participation in the enterprise and the inner workings of
that enterprise. Further, he does not provide any analysis as to why entry of this testimony was so
prejudicial, even if other testimony on the record had been produced on the point, as to outweigh
that probative value. Accordingly, the district court did not abuse its broad discretion in permitting
the testimony under Rule 403. See United States v. Paulsen, 655 F.3d 492, 509 (6th Cir. 2011)
(describing the district court’s broad discretion under Rule 403).
The fourth and last evidentiary challenge by Turner is his assertion that the district court
“erroneously admitted jail calls into evidence because the Government failed to establish an
evidentiary foundation and failed to properly authenticate the jail calls.”
At trial, the Government introduced recordings of jail calls through Officer Ruben
Ramirez, the investigator at the Shelby County Sheriff’s Office, who was assigned to monitor
detainee phone calls. Officer Ramirez explained that each detainee is assigned a unique “RNI
number” which each detainee is required to enter when making a phone call. To identify calls by
a specific detainee, he uses the detainee’s RNI number, and information from other databases, such
as arrest histories, emergency contacts, and frequently dialed numbers. In addition, detainees are
instructed to state their names at the beginning of calls, but sometimes they use nicknames or street
names. At trial, Officer Ramirez testified that he identified phone calls from Turner using Turner’s
RNI number and the fact that the caller identified himself as “Star.” Several witnesses at trial
testified that “Star” was Turner’s nickname.
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Turner objected to the admission of the calls, contending that they lacked foundation
identifying him as the caller. The district court denied the objection, concluding that the use of
Turner’s RNI number to identify the calls and the use of the caller identification as “Star” was
sufficient foundation.
Turner now contends that the use of the nickname “Star” is not enough to authenticate the
call under Federal Rule of Evidence 901. He argues that the nickname “is not a form of reliable
self-identification because there are countless individuals who could likely go by the same
nickname.” And “Turner’s voice was never identified by an individual who knew his voice [so] .
. . it is possible that another inmate could have used Turner’s PIN number to make phone calls in
question or rather use [sic] an alias associated with someone else in order to avoid the detection
by authorities.”
Federal Rule of Evidence 901(a) states that “the proponent must produce evidence
sufficient to support a finding that the item is what the proponent claims it is.” The rule demands
only enough proof to allow that “a reasonable juror could find in favor of authenticity or
identification,” and “[t]he rest is up to the jury.” United States v. Jones, 107 F.3d 1147, 1150 n.1
(6th Cir. 1997) (quoting 5 JACK B. WEINSTEIN ET AL., WEINSTEIN’S EVIDENCE ¶ 901(a)[01], 901–
19 (1996)). Other circuits have held that self-identification on a call, alone, is not sufficient to
authenticate the caller’s identity. See United States v. Khan, 53 F.3d 507, 516 (2d Cir. 1995);
United States v. Pool, 660 F.2d 547, 560 (5th Cir. Unit B 1981).
Turner has provided no reason to conclude that the combination of circumstances—the use
of Turner’s RNI number to make the call and the statement of his nickname at the beginning of
the call—was insufficient to provide the jury with reasonable facts from which to draw a
conclusion. And in a similar case, the Eleventh Circuit found that the combination of the caller’s
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self-identification and the detainee’s unique identification number was sufficient to authenticate
the call. See United States v. Harris, 338 F. App’x 892, 895 (11th Cir. 2009) (per curiam). On
this record, the district court did not abuse its discretion in admitting the calls into evidence.
3. Nesby’s Challenges
Nesby raises one evidentiary challenge. He contends that the district court impermissibly
allowed “other-acts evidence” under Fed. R. Evid. 404(b). Specifically, he argues that the
Government improperly introduced evidence of: (1) robberies committed by other Defendants (not
Nesby); (2) Nesby and Turner’s altercation with McCalleum in prison; and (3) Rayford’s
participation in two shootings.
Federal Rule of Evidence 404(b)(1) provides that “[e]vidence of any other crime, wrong,
or act is not admissible to prove a person’s character in order to show that on a particular occasion
that person acted in accordance with the character.” The district court rejected Nesby’s assertion
because “the evidence was direct proof of the criminal charges against defendants.”
“Rule 404(b) is not implicated when the other crimes or wrongs evidence is part of a
continuing pattern of illegal activity.” United States v. Barnes, 49 F.3d 1144, 1149 (6th Cir. 1995)
(emphasis added). As here, a continuing pattern of illegal activity may include a criminal
conspiracy, United States v. Tripp, 782 F.2d 38, 41 (6th Cir. 1986), or a racketeering enterprise,
United States v. Nicholson, 716 F. App’x 400, 420 (6th Cir. 2017). Thus, Nesby is mistaken in
relying on Rule 404(b) because the Government sought to use evidence of his crime not to prove
character, but to establish an ongoing, continuing pattern of illegal activity. Barnes, 49 F.3d at
1149.
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D. Conviction and Sentencing Challenges
Alexander raises a challenge regarding his conviction, and Turner raises a challenge
regarding his sentence. We address these challenges in turn.
1. Conviction Challenge (Alexander)
Alexander contends that his convictions under 18 U.S.C. § 924(c)—which requires that he
knowingly use, carry, brandish and discharge a firearm—must be vacated because Hobbs Act
robbery under 18 U.S.C. § 1951(b)(1) is not a “crime of violence” as defined in § 924(c)(3)(A).
Relying on United States v. Davis, -- U.S. --, 139 S. Ct. 2319 (2019), Alexander contends that “it
is unclear whether [he] was convicted under the elements clause of § 924(c)(3)(A) or the residual
clause of § 924(c)(3)(B) . . . [and] a conviction under the residual clause is unconstitutionally
vague.” Based on the statutory definition for “robbery,” Alexander also argues, “robbery can be
defined in such a way that robbery does not necessarily contain an element the use, attempted use,
or threatened use of physical force.”
But as Alexander concedes, in United States v. Gooch, 850 F.3d 285, 292 (6th Cir. 2017),
we specifically held that a conviction under § 1951(b)(1) constitutes “a crime of violence” under
§ 924(c)(3)(A). And after Davis was decided, we held that “Gooch remains good law.” United
States v. Holmes, 797 F. App’x 912, 918 (6th Cir. 2019); see also Porter v. United States, 959 F.3d
800, 804 (6th Cir. 2020). Because Alexander was convicted under § 924(c)(3) in relation to a
crime of violence—Hobbs Act Robbery—that conviction satisfies the elements clause.
Accordingly, vacatur is not warranted on these grounds.
2. Sentencing Challenge (Turner)
Turner challenges his sentence on three grounds. First, he contends that using acquitted
conduct to determine a sentence violates Turner’s Sixth Amendment rights and his Fifth
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Amendment right to due process. Second, he contends that the acquitted conduct used to enhance
his offense level was not proven by a preponderance of the evidence. Finally, Turner asserts that
the acquitted conduct used was not relevant conduct under § 131.3(a)(1) of the Sentencing
Guidelines.
Turner was acquitted of the counts associated with the CVS robbery on June 18, 2015. On
that day, three men—armed and wearing masks—entered a CVS drugstore around 11 p.m. and
ordered everyone down on the floor. One of the men jumped over the counter and handed a piece
of paper to the pharmacist containing a list of drugs demanded. The armed man held the
pharmacist at gunpoint, ordering her to place the drugs on the list in his bag. Once the pharmacist
had done so, and placed money in the bag from the cash register, the men fled. But the men left
the paper that listed the drugs at the pharmacy.
Police found another member of the Concrete Cartel, Arterrious Tate, driving in the
vicinity. When asked why he was in the area, Tate averred that he was coming from a Taco Bell,
but there was a “divided roadway” that blocked the Taco Bell from the area where Tate was
stopped, but that explanation made little sense. Later, a forensic examiner recovered Turner’s
fingerprints from the piece of paper demanding drugs. When police questioned Turner about his
fingerprints on the note, Turner responded that he had written on a lot of “notebook paper” even
though the police had not revealed that the note was written on notebook paper. At sentencing,
the district judge found that these facts established by a preponderance of the evidence that Turner
was involved in the June 18, 2015, robbery.
The district judge thereafter found the conduct relevant under USSG § 1B1.3(a)(1) and
used the acquitted conduct in determining Turner’s sentence to calculate the offense level for
Turner’s RICO conspiracy pursuant to USSG § 2E1.1(a). The court’s ruling resulted in a
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combined offense level of 35 for Turner’s convictions on Counts 1, 32, and 33, and with a criminal
history category of I, yielding an advisory range of 168 to 210 months of imprisonment. Turner’s
§ 924(c) conviction on Count 33 carried a mandatory sentence of 120 months of imprisonment.
The court ultimately varied downward from the advisory range and sentenced Turner to 120
months of imprisonment on Counts 1, 32, and 34 (to run concurrently) and a consecutive sentence
on Count 33 of 120-months, resulting in 240 months of imprisonment.
The district court’s finding of fact at sentencing are reviewed for clear error and its legal
conclusions de novo. United States v. Donadeo, 910 F.3d 886, 893 (6th Cir. 2018).
We begin with Turner’s constitutional challenge to the use of acquitted conduct. Our
binding precedent in United States v. White, which held that a district court’s consideration of
acquitted conduct in sentencing under an advisory guidelines system does not violate the Sixth
Amendment, constrains us to conclude that the use of acquitted conduct in sentencing is not a
violation under the Constitution. 551 F.3d 381, 383–84 (6th Cir. 2008) (en banc).
As to the substantive merits of the district court’s determination, the district court clearly
set forth its reasoning for the findings of fact that led it to conclude that a preponderance of the
evidence supported Turner’s involvement and also explained why that conduct was relevant under
the Guidelines. The court relied on the findings that: Turner’s fingerprint was found on the note;
Turner made a statement regarding notebook paper to the investigator without anyone ever telling
him that his fingerprint was on notebook paper; Tate—a fellow Concrete Cartel member—was in
the area and driving suspiciously; and Tate turned out to be Turner’s “right-hand man.” The court
concluded that this evidence showed it was “more likely than not” that Turner was involved, or at
least “aided, abetted, willfully caused, counseled, commanded [the robbery], or [the robbery was]
jointly under[taken] activity that was reasonably foreseeable” to Turner. That Turner now raises
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an alternative, and arguably plausible, explanation of the events does not render erroneous the
district court’s conclusion and weighing of evidence. See Anderson v. Bessemer City, 470 U.S.
564, 574 (1985). Based on those facts, we perceive no error in the district court’s legal conclusion
that a preponderance of the evidence supported Turner’s involvement.
Finally, with respect to Turner’s challenge to the district court’s conclusion that these facts
constitute relevant conduct under the Guidelines, USSG § 1B1.3(a)(1) provides two avenues for
defining relevant conduct. First, under USSG § 1B1.3(a)(1)(A), “all acts and omissions
committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the
defendant” is relevant conduct that could be used to enhance a sentence. Second, under USSG
§ 1B1.3(a)(1)(B), relevant conduct is also defined as conduct “in the case of a jointly undertaken
criminal activity . . . , all acts and omissions of others that were (i) within the scope of the jointly
undertaken criminal activity; (ii) in furtherance of that criminal activity; and (iii) reasonably
foreseeable in connection with that criminal activity.” Critically, as to both subsections, the
conduct must have “occurred during the commission of the offense of conviction, in preparation
for that offense, or in the course of attempting to avoid detection or responsibility for that offense.”
Id.
The district court found that the conduct was relevant under both § 1B1.3(a)(1)(A) and
§ 1B1.3(a)(1)(B), but that either one would be sufficient to sustain the sentence determination. As
to Section (A), which Turner does not address, the record evidence supported the district court’s
conclusion that it was more likely than not that Turner himself was involved in the robbery and
that the robbery was relevant conduct related to the RICO conspiracy, given the similarities
between this robbery and the other robberies implicated in the RICO conspiracy. Based on this,
we therefore find no error in the district court’s consideration of the robbery as relevant conduct
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under § 1B1.3(a)(1)(A). Because the district court’s findings under § 1B1.3(a)(1)(A) support the
sentence, we need not address Turner’s argument that his conduct was not relevant under
§ 1B1.3(a)(1)(B).
III. CONCLUSION
For the reasons set forth above, we AFFIRM the judgments of the district court in their
entireties.
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