United States v. Austin Woods ( 2021 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 21a0220p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
UNITED STATES OF AMERICA,
│
Plaintiff-Appellee, │
> Nos. 20-1214/1215
│
v. │
│
ANTOINE WOODS (20-1214); AUSTIN WOODS │
(20-1215), │
Defendants-Appellants. │
┘
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:17-cr-20022—Nancy G. Edmunds, District Judge.
Argued: June 9, 2021
Decided and Filed: September 17, 2021
Before: COOK, GIBBONS, and DONALD, Circuit Judges.*
_________________
COUNSEL
ARGUED: Jeffrey B. Lazarus, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Cleveland, Ohio, for Appellant in 20-1214. Kevin M. Schad, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Cincinnati, Ohio, for Appellant in 20-1215. William M. Sloan, UNITED
STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee. ON BRIEF: Jeffrey B.
Lazarus, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellant in
20-1214. Kevin M. Schad, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cincinnati,
Ohio, for Appellant in 20-1215. William M. Sloan, UNITED STATES ATTORNEY’S
OFFICE, Detroit, Michigan, for Appellee.
*The Honorable Deborah L. Cook participated in this decision before she took inactive senior status on
August 27, 2021.
Nos. 20-1214/1215 United States v. Woods, et al. Page 2
_________________
OPINION
_________________
JULIA SMITH GIBBONS, Circuit Judge. Antoine and Austin Woods (collectively “the
Woods brothers”) appeal their convictions and sentences. The Woods brothers participated in
multiple drive-by shootings in an attempt to murder a member of a rival gang. Antoine Woods
was indicted for several offenses in violation of the Violent Crimes in Aid of Racketeering Act
(“VICAR”): conspiracy to commit murder in aid of racketeering; attempted murder in aid of
racketeering; assault with a dangerous weapon in aid of racketeering; using, carrying, and
discharging a firearm during and in relation to a crime of violence; and obstruction of justice.
Austin Woods was indicted for conspiracy to commit murder in aid of racketeering and using,
carrying, and discharging a firearm during and in relation to a crime of violence. After a joint
trial, the jury rendered a guilty verdict for both brothers on the conspiracy charge and one of the
firearm charges. The jury also rendered a guilty verdict for Antoine on the charges of attempted
murder, assault with a dangerous weapon, an additional firearm charge, and obstruction of
justice. The Woods brothers appealed, and this court consolidated their cases for briefing and
submission. We vacate Antoine Woods’s conviction in Count 9 for attempted murder in aid of
racketeering and remand to the district court to amend its judgment as to Counts 1, 3, 16, and 17.
We affirm Antoine and Austin Woods’s convictions on all other counts.
I.
Antoine and Austin Woods were members of a Detroit-based group known as HNIC.
The Woods brothers claim that HNIC was a rap group that made music videos to post on social
media. The government argues, however, that HNIC was a street gang “engaged in drug dealing,
intimidation, and violence.” CA6 R. 51, Appellee Br., 3. Co-defendant and fellow HNIC
member Donovann Rhymes testified during trial that HNIC was a gang involved in criminal
activities including “[d]rug sales, attempt[ed] murders, murders, [and] scams.” DE 220, Trial
Tr., Page ID 2399. According to Rhymes, HNIC sold illegal drugs including heroin, marijuana,
prescription opioids, and codeine drink. Rhymes also stated that HNIC members promoted and
protected the gang’s reputation by engaging in retributive violence against anyone who
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disrespected HNIC. The Woods brothers were two of HNIC’s leaders and gave other members
orders “[t]o assault, kill, [and] rob people.” Id. at Page ID 2396, 2401.
On October 24, 2015, the Woods brothers and other HNIC members got into a fight with
James Williams, Carlton Green, and Eric Green at the Fairlane Mall in Detroit. Williams was a
member of a rival gang, and he and Antoine Woods had a longstanding feud. The two groups
began fighting with knives and poles at the mall, and eventually the HNIC members—including
the Woods brothers—ran away. Williams and his associates ran after them, tackled Austin, and
beat him until the mall security guards broke up the fight. After the altercation, Williams created
multiple memes and posted them to social media making fun of HNIC, and specifically the
Woods brothers, for running away during the fight.
Williams’s social media posts upset HNIC, including the Woods brothers, and they
decided to respond. Rhymes testified that shortly after the Fairlane Mall fight he heard James
Eldridge, another HNIC leader, tell Antoine that he needed to “do something about [Williams’s
social media posts.]” DE 220, Trial Tr., Page ID 2456–57. Rhymes explained that he
understood Eldridge to mean that Antoine should shoot Williams or otherwise retaliate against
him. Two days later, Eldridge texted the Woods brothers and told them they needed to respond
to Williams’s social media taunts. DE 203, Trial Tr., Page ID 1796 (ATF Special Agent
Matthew Rummel describing Eldridge’s text as “[i]t says, man, y’all better fuck this N word up,
and then an emojicon of a person crying.”). Austin responded, “I ain’t posting nothing. I’m on a
mission for real,” and Antoine said “No mo internet games bro, just know dat.” Id. at Page ID
1798, 1800. Rhymes testified that he subsequently went with the Woods brothers to surveil a
residence associated with Williams “to kill him.” DE 220, Trial Tr., Page ID 2457–59. On
November 30, 2015, Austin texted Antoine a link to a YouTube video that showed the address of
Williams’s grandmother’s house and told Antoine that he thought Williams was hiding there.
On December 6, 2015, there was a shooting at the King of Diamonds strip club where
Williams was having a party. Rhymes testified that HNIC was responsible for the shooting and
that he went to the strip club with Antoine and two other HNIC members to kill Williams. The
four HNIC members waited in cars outside of King of Diamonds until they saw Williams exit the
club. Rhymes testified that upon seeing Williams, Antoine said “there you go” and pointed his
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gun at the back of Williams’s head. DE 220, Trial Tr., Page ID at 2506. Antoine and Rhymes
both fired their guns at Williams, and Williams and his associates returned fire. Rhymes,
Antoine, and the other HNIC members fled the scene after exchanging multiple shots with
Williams’s group.
On December 20, 2015, there was another shooting, this time at Williams’s
grandmother’s house. Eric Green, Williams’s cousin, was in the house during the shooting and
testified that he believed five to eight shots were fired into his grandmother’s house. Green did
not see who fired the shots. Antoine later told Rhymes that he “tore [Williams’s] grandma’s
house up,” which Rhymes understood to be an admission that Antoine was the shooter. DE 222,
Trial Tr., Page ID 2705.
On September 6, 2017, a federal grand jury indicted the Woods brothers on multiple
charges related to the December 6, 2015 shooting, the December 20, 2015 shooting, and two
other drive-by shootings directed at Williams. On August 08, 2018, the grand jury returned a
second superseding indictment. Relevant to this appeal, both Antoine and Austin were charged
with conspiracy to commit murder in aid of racketeering in violation of 18 U.S.C. § 1959(a)(5)
(Count 1); using, carrying, and discharging a firearm on or about December 6, 2015, during and
in relation to a crime of violence in violation of 18 U.S.C. §§ 924(c) and 2 (Count 5); and using,
carrying, and discharging a firearm on or about December 20, 2015, during and in relation to a
crime of violence in violation of 18 U.S.C. §§ 924(c) and 2 (Count 11).1 Additionally, Antoine
was charged with attempted murder in aid of racketeering on or about December 6, 2015, in
violation of 18 U.S.C. §§ 1959(a)(5) and 2 (Count 3); assault with a dangerous weapon in aid of
racketeering on or about December 6, 2015, in violation of 18 U.S.C. §§ 1959(a)(3) and 2 (Count
4); attempted murder in aid of racketeering on or about December 20, 2015, in violation of
18 U.S.C. §§ 1959(a)(5) and 2 (Count 9); and assault with a dangerous weapon in aid of
1Antoine and Austin were also charged with § 924(c) violations related to the two additional shootings, but
both were acquitted of those charges.
Nos. 20-1214/1215 United States v. Woods, et al. Page 5
racketeering on or about December 20, 2015, in violation of 18 U.S.C.§§ 1959(a)(3) and
2 (Count 10).2
The Woods brothers were tried jointly. The government’s first witness was ATF Special
Agent Matthew Rummel. When asked to describe the nature of the initial investigation into
HNIC, Rummel testified that “[v]arious members were either witnesses or party to some violent
crimes, including a drive-by shooting of a residence in which a three-month old was killed.” DE
323, Trial Tr., Page ID 4644. Shortly thereafter, defense counsel moved for a mistrial, arguing
that mentioning the killing of a small child was extremely prejudicial. The district court denied
the motion and later gave the jury a limiting instruction to disregard Rummel’s comment about
the drive-by shooting.
At the close of the government’s proof, the Woods brothers jointly moved for a judgment
of acquittal pursuant to Federal Rule of Criminal Procedure 29 and the district court denied the
motion. At the close of all evidence, the district court instructed the jury that it could find the
Woods brothers guilty of the § 924(c) charges under a theory of Pinkerton liability. Relevant to
this appeal, a jury convicted Antoine of Counts 1, 3, 4, 5, 9, 10, and 11; Austin was convicted of
Counts 1 and 11. The Woods brothers filed post-trial motions for judgment of acquittal and for a
new trial, which the district court denied. The district court sentenced Antoine to a total of
384 months of imprisonment and Austin to a total of 168 months of imprisonment. The Woods
brothers appealed, and their cases were consolidated for briefing and submission.
The Woods brothers raise three common issues on appeal, and each makes several
individual arguments. Both defendants challenge whether their § 924(c) charges were based on
proper predicate crimes of violence given that the jury was instructed on—and may have come to
a guilty verdict based on—a Pinkerton theory of liability. They also argue that there was
insufficient evidence to support their convictions of conspiracy to commit murder in aid of
racketeering and that the district court abused its discretion by denying their motion for a mistrial
after Rummel improperly connected HNIC to the shooting of a young child. Individually, Austin
2Antoine was also charged with attempted murder in aid of racketeering and assault with a dangerous
weapon in aid of racketeering related to the other shootings of which he was acquitted. Additionally, he was
indicted and found guilty on two counts of obstruction of justice, which he does not challenge on appeal.
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argues that his § 924(c) charge was based on insufficient evidence and that there was insufficient
evidence that he knowingly joined the conspiracy to commit murder. Antoine separately argues
that his convictions on Counts 9 and 10 violate the Double Jeopardy Clause.
II.
A. 924(c) Charges
1. Standard of Review
We review de novo issues of law, including whether an offense is a crime of violence
under § 924(c)(3). Manners v. United States, 947 F.3d 377, 379 (6th Cir. 2020).
We review a challenge to the sufficiency of the evidence in a criminal case de novo.
United States v. Garcia, 758 F.3d 714, 718 (6th Cir. 2014). When the defendant challenges the
sufficiency of the evidence to support a jury verdict, we review the evidence in the light most
favorable to the government. United States v. Bailey, 973 F.3d 548, 564 (6th Cir. 2020). We
will affirm a defendant’s conviction if “any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” United States v. Hendricks, 950 F.3d 348,
352 (6th Cir. 2020) (quoting United States v. Vichitvongsa, 819 F.3d 260, 270 (6th Cir. 2016)).
“[C]ircumstantial evidence alone can defeat a sufficiency challenge.” United States v. Volkman,
797 F.3d 377, 390 (6th Cir. 2015). “We can neither independently weigh the evidence, nor make
our own assessment of the credibility of the witnesses who testified at trial.” Garcia, 758 F.3d
at 718.
2. Merits
a. Predicate Crimes
18 U.S.C. § 924(c) penalizes using, carrying, or possessing a firearm “during and in
relation to any crime of violence or drug trafficking crime . . . for which the person may be
prosecuted in a court of the United States.” If the firearm is discharged, as in this case, the
minimum term of imprisonment is 10 years. Id. § 924(c)(1)(A)(iii). Until recently, there were
two ways an offense could qualify as a predicate crime of violence for purposes of § 924(c).
Under the elements clause, a crime of violence is defined as an “offense that is a felony and . . .
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has as an element the use, attempted use, or threatened use of physical force against the person or
property of another.” Id. § 924(c)(3)(A). Under the residual clause, a crime of violence was
defined as any felony offense “that by its nature, involves a substantial risk that physical force
against the person or property of another may be used in the course of committing the offense.”
Id. § 924(c)(3)(B). However, the Supreme Court struck down the residual clause as
unconstitutionally vague in United States v. Davis, 139 S. Ct. 2319, 2336 (2019). Before Davis,
conspiracies to commit violent crimes were proper predicate offenses under the residual clause.
See United States v. Ledbetter, 929 F.3d 338, 361 (6th Cir. 2019). After Davis, a predicate
offense qualifies as a crime of violence only if use of force is an element of the offense, and this
excludes conspiracy charges. Manners, 947 F.3d at 379.
The Woods brothers argue that the attempted murder in aid of racketeering under
18 U.S.C. § 1959(a)(5) (“VICAR attempted murder”) charges and the assault with a dangerous
weapon in aid of racketeering under 18 U.S.C. § 1959(a)(3) (“VICAR assault with a dangerous
weapon”) charges underlying their § 924(c) charges are not proper predicate offenses because
the jury instructions allowed them to be convicted of the 924(c) charges under a theory of
Pinkerton liability. Pinkerton liability is a type of vicarious liability that allows members of a
conspiracy to be held liable for reasonably foreseeable substantive offenses committed by co-
conspirators in furtherance of the conspiracy. Pinkerton v. United States, 328 U.S. 640, 646–48
(1946); see also United States v. Hamm, 952 F.3d 728, 744 (6th Cir. 2020) (“The doctrine holds
that a member of a conspiracy is liable for substantive offense[s] committed by his co-
conspirators, even if he did not participate in them, as long as: (1) the offenses are done in
furtherance of the conspiracy, (2) they fall within the scope of the unlawful project, and (3) they
are reasonably foreseeable consequence[s] of the unlawful agreement.” (alterations in original)
(internal quotation marks omitted)).
The Woods brothers assert that because Pinkerton liability depends on the existence of a
conspiracy and conspiracy charges are no longer proper predicate crimes of violence after Davis,
their VICAR attempted murder and VICAR assault with a dangerous weapon charges are also
not proper predicate offenses. The Woods brothers’ argument conflates the predicate crimes of
violence underlying their § 924(c) conviction (which are not conspiracy charges) and the basis of
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liability for the 924(c) charges, which may have been Pinkerton liability. The Supreme Court’s
only inquiry in Davis was whether the § 924(c) residual clause was unconstitutionally vague, not
whether Pinkerton liability is a proper basis for a 924(c) conviction. See Davis, 139 S. Ct. at
2327. Finding the Woods brothers guilty through a theory of Pinkerton liability is still
permissible as long as the underlying predicate offenses qualify as crimes of violence under the
§ 924(c) elements clause. United States v. Meyers, 102 F.3d 227, 238 (6th Cir. 1996) (affirming
a § 924(c) conviction based on Pinkerton liability). Because both VICAR attempted murder and
VICAR assault with a dangerous weapon are crimes of violence, not conspiracy crimes, the
Woods brothers’ argument fails.
In Davis, the conspiracy charge itself was not at issue. Rather, the Court clearly stated
that it was the fact that the conspiracy charge rested solely on § 924(c)’s residual clause, and not
the elements clause that precluded liability. Davis, 139 S. Ct. at 2325. Substantive charges like
VICAR murder, on the other hand, rely on the elements clause, not the unconstitutionally vague
residual clause. This is true whatever legal theory of liability the jury relies on to find the
defendant guilty of § 924(c).
This is not a situation, as the Woods brothers claim, where their § 924(c) convictions are
predicated on a conspiracy charge. The indictment clearly stated that VICAR attempted murder
and VICAR assault with a dangerous weapon are the predicate offenses for the Woods brothers’
§ 924(c) charges. The jury instructions explained that the jury could find the Woods brothers
guilty of the § 924(c) charge in Count 5 based on “the crime of attempted murder in aid of
racketeering as charged in Count [3], or assault with a dangerous weapon as charged in Count 4”
and could find them guilty of Count 11 based on “the crime of attempted murder in aid or
racketeering as charged in Count 9, or assault with a dangerous weapon as charged in Count
[10].” DE 348, Trial Tr., Page ID 5465; see also DE 247-1, Jury Instructions, Page ID 3873–74.
Both the indictment and jury instructions ensured that the jury knew the predicate offenses were
VICAR attempted murder and VICAR assault with a deadly weapon, not the conspiracy charge
brought in Count 1. See United States v. Nixon, 825 F. App’x 360, 364 (6th Cir. 2020) (“By
describing and naming the correct predicate offense, the indictment and jury instruction left no
confusion for the jury that the predicate offense was a crime of violence.”); see also Reyes v.
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United States, 998 F.3d 753, 758–59 (7th Cir. 2021). The Woods brothers’ § 924(c) charges
were properly based on crimes of violence under the § 924(c) elements clause.
The jury’s potential reliance on Pinkerton liability to convict of the 924(c) offenses does
not change this outcome. Other circuits have come to a similar conclusion, finding that a
defendant can be convicted of a § 924(c) charge based on a theory of Pinkerton liability. See
United States v. Henry, 984 F.3d 1343, 1356–57 (9th Cir. 2021) (upholding a § 924(c) conviction
based on Pinkerton liability after Davis); United States v. Howell, No. 18-3216, 2021 WL
3163879, at *4 (3d Cir. July 27, 2021) (“[G]uilt may . . . be found for the § 924(c) offense under
Pinkerton based on a coconspirator who also completed the armed Hobbs Act robbery.”); United
States v. Hernandez-Roman, 981 F.3d 138, 145 (1st Cir. 2020) (“We have held that where, as
here, Pinkerton liability is in play, ‘the defendant does not need to have carried the gun himself
to be liable under section 924(c).’”) (quoting United States v. Flecha-Maldonado, 373 F.3d 170,
179 (1st Cir. 2004))); United States v. Johnson, 827 F. App’x 283, 286 (4th Cir. 2020) (“This
argument confuses the offense of Hobbs Act conspiracy with the co-conspirator theory of
liability for Hobbs Act robbery. . . . [W]e have long-held that a co-conspirator’s § 924(c)(1)
violation may be imputed to other members of the conspiracy . . . under the Pinkerton conspiracy
doctrine.” (second omission in original) (internal quotation omitted)).3
We note that Austin Woods, who was convicted of the 924(c) offense charged in Count
11, was not charged with either of the predicate acts for that offense, which were charged in
Counts 9 and 10. While it is unusual for the government to rely on Pinkerton liability as the
basis for a § 924(c) charge without charging the defendant with the underlying predicate crime of
violence, as is the case here with Austin, the law permits the government to make this
questionable strategic choice. Charging the underlying predicate offense is not required for
liability under § 924(c); it is enough if the defendant may be prosecuted in a court of the United
States for the predicate offense. 18 U.S.C. § 924(c); see also United States v. Smith, 182 F.3d
452, 457 (6th Cir. 1999) (“[Section 924(c)] requires only that the defendant have committed a
3Additionally, contrary to defendants’ argument otherwise, the Supreme Court’s decision in Rosemond v.
United States, 572 U.S. 65 (2014), did not heighten the mens rea requirement under Pinkerton. United States v.
Edmond, 815 F.3d 1032, 1047 (6th Cir. 2016), vacated on other grounds by United States v. Harper, 137 S. Ct.
1577 (Mem) (2017) (“Rosemond did not alter the Pinkerton framework, as at least one circuit has already
concluded.”).
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violent crime for which he may be prosecuted in federal court. It does not even require that the
crime be charged . . . [and] it does not require that he be convicted.”). In sum, our precedent
requires us to affirm the Woods brothers’ § 924(c) convictions, even if they were found liable for
the 924(c) offenses by a theory of Pinkerton liability.
b. Sufficiency of the Evidence Challenge
Alternatively, Austin argues that there is insufficient evidence to convict him on Count
11’s § 924(c) charge related to the December 20 drive-by shooting of Williams’s grandmother’s
house under an aiding and abetting theory of liability. He first argues that it is impossible that
the jury found him guilty of Count 11 under a Pinkerton theory of liability because he was not
present for the shooting and because the jury only convicted him of one of the four § 924(c)
charges brought in the indictment. According to Austin, “[i]f the jury had found guilt[] as to
count eleven, under a Pinkerton theory of liability, they would have necessarily have found guilt
as to the other three counts.” CA6 R. 25 (Austin), Appellant Br., 19. Thus, he reasons the jury
must have found him guilty of Count 11 based on an aider and abettor theory. He goes on to
argue that there was insufficient evidence to convict on the aider and abettor theory.
Austin’s argument that the jury must have eschewed a Pinkerton theory of liability is
unpersuasive. The jury instructions stated that to find Austin guilty of any of the § 924(c)
charges under a Pinkerton theory the jury must find that the specific firearm crime under
consideration was committed to help advance the conspiracy and was reasonably foreseeable to
Austin. Each § 924(c) charge was based on a specific underlying firearm crime. The jury could
have reasonably found that there was sufficient evidence to conclude that the shooting on
December 20, 2015 was reasonably foreseeable to Austin, but that the other shootings charged in
the indictment were not reasonably foreseeable to him. The jury instructions allowed the jury to
find Austin guilty of one of the § 924(c) charges under a Pinkerton theory of liability but not the
others, and the jury’s verdict is entirely consistent with finding Austin guilty of Count 11 under a
Pinkerton theory of liability.
There was sufficient evidence for a reasonable juror to find Austin guilty beyond a
reasonable doubt of Count 11 based on a Pinkerton theory of liability. To find Austin guilty
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under a Pinkerton theory of liability, the jury must have found beyond a reasonable doubt that:
(1) Austin “was a member of the conspiracy charged in Count 1 of the indictment,”
(2) the December 20, 2015 shooting happened when he was still a member of the conspiracy,
(3) the December 20, 2015 shooting “was committed to help advance the conspiracy,” and
(4) the December 20, 2015 shooting “was within the reasonably foreseeable scope of the
[conspiracy].” DE 348, Trial Tr., Page ID 5470.
There was sufficient evidence for the jury to find elements of the Count 11 predicate
crime. See supra Part II.B. Austin does not challenge that he was a member of HNIC on
December 20, 2015. There is extensive witness testimony to support the conclusion that the
December 20 shooting was intended to advance HNIC after Williams publicly taunted the
Woods brothers and HNIC. Finally, there is sufficient evidence to conclude that the December
20, 2015 shooting was reasonably foreseeable to Austin. On November 30, 2015, Austin sent
Antoine a link to a YouTube video that revealed Williams’s grandmother’s address. Austin said,
“that’s where he [is] hiding, I guarantee.” DE 203, Trial Tr., Page ID 1813. Combined with the
testimony that Austin agreed that Williams needed to be killed for his social media posts taunting
HNIC after the Fairlane Mall fight, a rational juror could find that it was reasonably foreseeable
to Austin that an HNIC member would try to kill Williams at his grandmother’s house where
Austin claimed he was “hiding.” Accordingly, because there was sufficient evidence to
independently convict him under a Pinkerton theory of liability, we need not address whether
there was also sufficient evidence to convict him on an aiding and abetting theory of liability.
B. Sufficiency of the Evidence for Conspiracy to Commit Murder in Aid of
Racketeering (Count 1, VICAR murder)
1. Standard of Review
We review a challenge to the sufficiency of the evidence in a criminal case de novo.
Garcia, 758 F.3d at 718. When the defendant challenges the sufficiency of the evidence to
support a jury verdict, we review the evidence in the light most favorable to the government and
will affirm a defendant’s conviction if “any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Hendricks, 950 F.3d at 352 (quoting
Vichitvongsa, 819 F.3d at 270).
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If the defendant failed to preserve his sufficiency of the evidence challenge at trial,
however, we will review the evidence under the more lenient “manifest miscarriage of justice”
standard. United States v. Ray, 803 F.3d 244, 262 (6th Cir. 2015). A defendant can only
succeed under this standard if the record is “devoid of evidence pointing to guilt.” United States
v. Childs, 539 F.3d 552, 558 (6th Cir. 2008).
2. Merits
The Woods brothers both challenge the sufficiency of the evidence as to Count 1,
conspiracy to commit murder in aid of racketeering (“VICAR murder”). To establish a VICAR
violation, the government must show:
(1) that the Organization was a RICO enterprise, (2) that the enterprise was
engaged in racketeering activity as defined in RICO, (3) that the defendant in
question had a position in the enterprise, (4) that the defendant committed the
alleged crime of violence, and (5) that his general purpose in so doing was to
maintain or increase his position in the enterprise.
United States v. Odum, 878 F.3d 508, 516 (6th Cir. 2017), vacated on other grounds sub nom.
Frazier v. United States, 139 S. Ct. 319 (2018) (quoting United States v. Concepcion, 983 F.2d
369, 381 (2d Cir. 1992)). Both Antoine and Austin argue that HNIC was not a RICO enterprise
and that they did not attempt to murder Williams to further their positions in HNIC.
Additionally, Austin claims that there was insufficient evidence to find that he knowingly joined
the conspiracy to murder Williams.
The parties dispute whether the Woods brothers waived this sufficiency of the evidence
challenge as to Count 1. The government argues that the Woods brothers failed to specifically
raise a motion for acquittal or new trial on Count 1 at the close of evidence, so the panel should
review the Woods brothers’ claim for “manifest miscarriage of justice.” CA6 R. 51, Appellee
Br., 29–30. The Woods brothers claim that “the record reflects that the defense never intended
to waive or abandon this matter, to trigger the invited error doctrine and manifest injustice
standard.” CA6 R. 38 (Austin), Reply Br., 7–8. The Woods brothers claim the proper standard
of review is de novo and the court should determine whether any rational juror could have found
the elements of Count 1 beyond a reasonable doubt. Because the Woods brothers’ sufficiency of
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the evidence challenge fails even under de novo review, we assume for purposes of this appeal
that the Woods brothers did not waive this challenge.
a. Racketeering Enterprise
Under § 1959, an enterprise is defined as a “partnership, corporation, association, or other
legal entity, and any union or group of individuals associated in fact although not a legal entity,
which is engaged in, or the activities of which affect, interstate or foreign commerce.” 18 U.S.C.
§ 1959(b)(2). The enterprise must also be engaged in “racketeering activity,” which includes
“any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion,
dealing in obscene matter, or dealing in a controlled substance . . . which is chargeable under
State law and punishable by imprisonment for more than one year.” Id. at §§ 1959(b)(1),
1961(1). The Woods brothers dispute that HNIC was engaged in racketeering activity.
There was sufficient evidence for a rational juror to conclude beyond a reasonable doubt
that HNIC was engaged in racketeering activity including murder, threats of murder, and dealing
in controlled substances. The Woods brothers argue that HNIC was only a rap group, and that
“[t]here was a distinct lack of evidence regarding illegal activities by HNIC.” CA6 R. 39
(Antoine), Appellant Br., 27; CA6 R. 25 (Austin), Appellant Br., 24. This argument is soundly
refuted by large portions of the record. Multiple witnesses testified that HNIC was involved in
dealing controlled substances including marijuana, heroin, and codeine. Rhymes also testified
about murders, attempted murders, and assaults he committed as a member of HNIC, sometimes
at the Woods brothers’ direction. DE 220, Trial Tr., Page ID 2398–2401 (describing how leaders
of HNIC including the Woods would order members to “assault, kill, [and] rob people”). The
Woods brothers appear to argue that the court should disregard Rhymes’s testimony because he
was a cooperating co-defendant, but we may not reweigh the evidence or assess Rhymes’s
credibility on appeal. Ledbetter, 929 F.3d at 353. There is sufficient evidence for a reasonable
juror to conclude that HNIC was engaged in racketeering activity and, thus, was a criminal
enterprise.
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b. Maintain or increase position in HNIC
Second, the Woods brothers claim that there was insufficient evidence to find that they
joined the conspiracy to murder Williams with the purpose of maintaining or increasing their
position within HNIC. “The violent-crimes-in-aid-of-racketeering statute does not extend to
every ‘violent behavior by a gang member under the presumption that such individuals are
always motivated, at least in part, by their desire to maintain their status within the gang.’”
Ledbetter, 929 F.3d at 358 (quoting United States v. Hackett, 762 F.3d 493, 500 (6th Cir. 2014)).
Put another way, a defendant is not guilty of a VICAR crime when he acts “alone and with no
apparent connection to the gang.” Id. Rather, “VICAR’s purpose element is met if the jury
could find that an animating purpose of the defendant’s action was to maintain or increase his
position in the racketeering enterprise.” United States v. Hackett, 762 F.3d 493, 500 (6th Cir.
2014) (emphasis added) (internal quotation marks omitted). For example, a defendant may be
liable if the violent crime “was sanctioned by the gang and . . . the defendant participated
because he knew it was expected of him as a member” or the crime “fit the mold of the gang’s
typical missions against rival[s].” Ledbetter, 929 F.3d at 358–59.
The Woods brothers claim that because they were already leaders of HNIC, they could
not increase their position with HNIC and that “[t]he government failed to present evidence that
any action by [the Woods brothers] or any action agreed-upon, relating to [Williams], was for the
‘animating purpose’ of maintaining [their] position within HNIC.” CA6 R. 39 (Antoine),
Appellant Br., 26; see also CA6 R. 25 (Austin), Appellant Br., 22–23. Again, the Woods
brothers’ argument discounts Rhymes’s testimony. Rhymes testified that it was important to
HNIC to protect the gang’s reputation and that HNIC members would engage in retribution in
response to any perceived disrespect. Rhymes said that Eldridge, the third leader of HNIC, told
Antoine that he needed to do something about Williams’s social media posts mocking HNIC and
the Woods brothers after the Fairlane Mall fight. A rational juror could conclude based on
Rhymes’s testimony that the conspiracy to murder Williams was sanctioned by HNIC or that the
Woods brothers participated in it because they knew it was expected of them as HNIC members.
See Ledbetter, 929 F.3d at 358–59. Accordingly, there was sufficient evidence to conclude that
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the Woods brothers acted with the animating purpose of maintaining or increasing their position
in HNIC.
c. Knowingly joined conspiracy to kill Williams
Lastly, Austin argues that the government failed to prove he agreed to join the conspiracy
to murder Williams. According to Austin, “the Government failed to present evidence that [he]
knew of this agreement [to murder Williams,] or specifically decided to join in.” CA6 R. 25
(Austin), Appellant Br., 25. Austin’s argument is unconvincing. The government presented
evidence that Austin was a knowing and willing participant in the conspiracy to murder
Williams. For example, Austin texted other HNIC members a link to a YouTube video revealing
Williams’s grandmother’s address and told them that he thought that was where Williams was
hiding. He also agreed with Eldridge when Eldridge said Williams needed to pay for the social
media posts mocking HNIC and the Woods. Finally, Rhymes testified that he waited outside an
apartment building associated with Williams with Antoine and Austin and that Austin told
Rhymes to kill Williams if he saw him. This evidence is sufficient for a rational juror to
conclude that Austin knowingly participated in the conspiracy to murder Williams.
In sum, the Woods brothers’ arguments that there was insufficient evidence to sustain
their conspiracy to commit murder charges are unpersuasive. The government provided ample
evidence that both the Woods brothers were members of HNIC and knowingly participated in the
conspiracy to murder Williams in order to advance the goals of HNIC.
C. Motion for Mistrial
Next, the Woods brothers challenge the district court’s denial of their motion for a
mistrial. We review a district court’s denial of defendants’ motion for mistrial for abuse of
discretion. United States v. Wandahsega, 924 F.3d 868, 878 (6th Cir. 2019).
The Woods brothers moved for mistrial after Rummel stated that the investigation into
HNIC was started after a drive-by shooting in which a three-month old baby was killed. In
determining whether an improper reference warrants a mistrial, we consider five factors:
“(1) whether the remark was unsolicited, (2) whether the . . . line of questioning was reasonable,
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(3) whether the limiting instruction was immediate, clear, and forceful, (4) whether any bad faith
was evidenced by the government, and (5) whether the remark was only a small part of the
evidence” presented against the defendant. Zuern v. Tate, 336 F.3d 478, 485 (6th Cir. 2003).
“The primary concern [in this inquiry] is fairness to the defendant.” United States v. Forrest,
17 F.3d 916, 919 (6th Cir. 1994).
On May 21, 2019, the government called Rummel as its first witness in the trial. After
discussing Rummel’s background and qualifications as an ATF special agent, the prosecution
asked about Rummel’s knowledge of HNIC:
Q. And at that point, when you first heard of HNIC for the first time in 2012,
2013, was there an ongoing investigation of HNIC under way?
A. Yes.
Q. And what was the nature of that investigation?
A. Various members were either witnesses or party to some violent crimes,
including a drive-by shooting of a residence in which a three-month old
was killed.
DE 323, Trial Tr., Page ID 4643–44. Almost immediately after this statement, defense counsel
requested a sidebar conference and moved for a mistrial arguing that the reference to the infant’s
death was highly prejudicial. The district court agreed that the comment was “extremely
prejudicial,” but postponed ruling on the motion for a mistrial. Id. at Page ID 4646–47. Before
allowing the questioning to continue, the district court told the prosecution and Rummel not to
mention the death of the three-month old or detailed information about prior investigations again.
The next day, the district court heard oral arguments from the parties about the motion for
a mistrial and allowed defense counsel to question Rummel. Rummel explained that although
HNIC members were interviewed about the drive-by shooting that killed the infant, no HNIC
members were charged with the murder of the three-month old. When asked by defense counsel
whether “it [came] up during discussions with the government attorneys in preparation for your
testimony that you would be making reference to the shooting of the three-month-old,” Rummel
answered “[n]o.” DE 228, Trial Tr., Page ID 3330–31. After hearing arguments from both
sides, the district court denied the motion for a mistrial. The district court found that the
government did not act in bad faith and that Rummel’s statement, while unfortunate and
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incomplete, did not rise to the level of false testimony. The district court agreed, however, to
give the jury a limiting instruction on Rummel’s testimony if the parties requested one.
On May 29, 2019, the district court read the jury the following limited instruction
regarding Rummel’s testimony:
Earlier in this trial on May 21, 2019 you heard testimony from Special Agent
Matthew Rummel that law enforcement investigated whether various members of
HNIC were either witnesses or parties to a [drive-by] shooting of a residence that
resulted in the death of a three-month-old baby, child, in 2012 or 2013.
The government and the defendants have agreed or stipulated to the following
fact: Upon further investigation, law enforcement ultimately determined that
neither HNIC nor defendant Antoine Woods nor defendant Austin Woods were
involved in the [drive-by] shooting. Accordingly, you are instructed to
completely disregard Agent Rummel’s testimony about that 2012 or 2013 [drive-
by] shooting. Do not discuss it or consider it in your deliberations. You cannot
consider it in any way against either of the defendants. Do not let it influence
your verdict in any way. Thank you.
DE 217, Trial Tr., Page ID 1892−93.
The district court did not abuse its discretion by denying the Woods brothers’ motion for
a mistrial. The evidence shows that Rummel’s statement about the three-month old’s killing was
unintentional and was not elicited in bad faith by the government. 4 Furthermore, the district
court gave the jury a limiting instruction to disregard Rummel’s statement as soon as the parties
notified the government that they had agreed on the instruction’s language. The limiting
instruction clearly directed the jury to “completely disregard” Rummel’s statement about the
drive-by shooting and “not let it influence [the] verdict in any way.” DE 217, Trial Tr., Page ID
1893. The limiting instruction also explained that the drive-by shooting was not relevant to this
case because “neither HNIC nor defendant Antoine Woods nor defendant Austin Woods were
involved the drive-by shooting.” Id. at Page ID 1893. Finally, the short statement made by
4The Woods speculate that Rummel’s testimony must have been a “designed statement” because it arose
“within the first few questions” of his testimony and “unlike a situation where the prosecution was examining a lay
witness, [Rummel] was the case agent, a witness the AUSA would have spent significant time preparing for his
testimony.” CA6 R. 39 (Antoine), Appellant Br., 29; CA6 R. 25 (Austin), Appellant Br., 27–28. This argument is
directly contradicted, however, by Rummel’s testimony under oath that he had not discussed the shooting with the
prosecution during his preparation for trial.
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Rummel was only a small part of the fourteen-day trial against the Woods brothers. In sum,
based on the surrounding facts and circumstances, Rummel’s statement was not so prejudicial
that it was unfair for the Woods brothers to continue the trial. The district court did not abuse its
discretion.
D. Double Jeopardy Counts 9 and 10
Next, Antoine argues that his convictions on Counts 9 and 10 violate the Double
Jeopardy Clause. CA6 R. 39 (Antoine), Appellant Br., 31–36. Because Antoine did not raise
this claim before the district court, it is reviewed for plain error. United States v. Mayberry, 540
F.3d 506, 512 (6th Cir. 2008). Under plain error review, the defendant “must show that there is
‘1) error, 2) that is plain, and 3) that affects substantial rights,’ and if so, he must persuade us that
‘4) the error seriously affects the fairness, integrity, or public reputation of the judicial
proceedings.’” United States v. Yancy, 725 F.3d 596, 601 (6th Cir. 2013) (quoting United States
v. Murdock, 398 F.3d 491, 496 (6th Cir. 2005)).
The Double Jeopardy Clause of the Fifth Amendment guarantees that no person will be
“subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend V.
The government concedes that Antoine’s conviction for VICAR attempted murder under Count 9
and VICAR assault with a dangerous weapon under Count 10 violate the Double Jeopardy
Clause because “it does not appear that Congress intended for a defendant to be convicted and
punished for multiple VICAR offenses based on the same shooting at the same victim at the
same moment.” CA6 R. 51, Appellee Br., 64. The government asks that we remand Antoine’s
case to the district court with instructions to amend Antoine’s judgment by vacating Count 9
without prejudice and removing the $100 special assessment. Because the parties are correct that
Antoine’s conviction of Counts 9 and 10 violate the Double Jeopardy Clause, we grant Antoine’s
claim and order the district court to follow the government’s recommendation to amend
Antoine’s judgment.
E. Sentencing Error for Counts 1, 3, 16, and 17
Finally, the government requests we order the district court to amend Antoine’s judgment
because his sentences on Counts 1, 3, 16, and 17 exceed the statutory maximum for those counts.
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The government explains:
The district court imposed a concurrent sentence of 144 months on all of
Antoine’s convictions other than the § 924(c) counts. (R.326: Tr., 4747; R.294:
Judgment, 4246). This was appropriate for Counts 4 and 10 under 18 U.S.C.
§ 1959(a)(3), which has a statutory maximum of 240 months. But the statutory
maximums for the other convictions are below the imposed 144-month sentence:
Counts 1 and 3 have a 120-month maximum under 18 U.S.C. § 1959(a)(5); Count
16 has a 60-month maximum under 18 U.S.C. § 371; and Count 17 has a 120-
month maximum under 18 U.S.C. 1503(b)(3). The judgment should therefore be
corrected so that the concurrent sentences on those counts do not exceed their
respective statutory maximums. As with the vacatur of Count 9, though, none of
these changes affects the guideline calculation or overall sentence, so a
resentencing is unnecessary.
CA6 R. 51, Appellee Br., 68. Antoine does not address this issue in either his opening brief or
his reply brief. Because the government correctly explains the district court’s computation
errors, we instruct the district court to amend Antoine’s judgment according to the government’s
recommendation upon remand.
III.
We affirm Antoine Woods’s convictions except for that on Count 9 and remand with
instructions to amend his judgment to vacate the Count 9 conviction without prejudice and to
correct his sentence on Counts 1, 3, 16, and 17 to comply with the statutory maximums. We
affirm the rest of Antoine Woods’s convictions, and we affirm Austin Woods’s convictions.