United States v. Robert Ledbetter , 929 F.3d 338 ( 2019 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 19a0142p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
│
v. > Nos. 17-3289/3290/3297/3299/3302/
│ 3304/3306/3308/3309
│
ROBERT B. LEDBETTER (17-3299 & 17-3309); │
CHRISTOPHER A. HARRIS (17-3304 & 17-3306); │
RASHAD A. LISTON (17-3302 & 17-3308); DEOUNTE │
USSURY (17-3289 & 17-3297); CLIFFORD L. ROBINSON │
(17-3290), │
Defendants-Appellants. │
┘
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 2:14-cr-00127—Algenon L. Marbley, District Judge.
Argued: March 13, 2019
Decided and Filed: July 3, 2019
Before: MERRITT, CLAY, and ROGERS, Circuit Judges
_________________
COUNSEL
ARGUED: Timothy J. McKenna, TIMOTHY J. MCKENNA, LLC, Cincinnati, Ohio, for
Appellant Ledbetter. Margaret Sind Raben, GUREWITZ & RABEN, PLC, Detroit, Michigan,
for Appellant Harris. Gregory A. Napolitano, LAUFMAN & NAPOLITANO, LLC, Cincinnati,
Ohio, for Appellant Liston. Claire R. Cahoon, FEDERAL PUBLIC DEFENDER, Toledo, Ohio,
for Appellant Ussury. Steven S. Nolder, SCOTT & NOLDER CO. LPA, Columbus, Ohio, for
Appellant Robinson. Mary Beth Young, UNITED STATES ATTORNEY’S OFFICE,
Columbus, Ohio, for Appellee. ON BRIEF: Timothy J. McKenna, TIMOTHY J. MCKENNA,
LLC, Cincinnati, Ohio, for Appellant Ledbetter. Margaret Sind Raben, GUREWITZ & RABEN,
PLC, Detroit, Michigan, for Appellant Harris. Gregory A. Napolitano, LAUFMAN
& NAPOLITANO, LLC, Cincinnati, Ohio, for Appellant Liston. Claire R. Cahoon, FEDERAL
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PUBLIC DEFENDER, Toledo, Ohio, for Appellant Ussury. Steven S. Nolder, SCOTT
& NOLDER CO. LPA, Columbus, Ohio, for Appellant Robinson. Mary Beth Young, Kimberly
Robinson, UNITED STATES ATTORNEY’S OFFICE, Columbus, Ohio, for Appellee.
_________________
OPINION
_________________
ROGERS, Circuit Judge. The Short North Posse gang—and its two subsidiaries, the
Homicide Squad and Cut Throat Committee—wreaked havoc for the better part of a decade in
the Short North neighborhood of Columbus, Ohio. To support its drug enterprise, the Short
North Posse conducted brutal home-invasion style robberies and planned and executed the
murder of rivals, high-value targets, and cooperating witnesses. After a two-month-long jury
trial, four of the five appellants—Robert Ledbetter, Deounte Ussury, Rashad Liston, and
Christopher Harris—were convicted of RICO conspiracy for their membership in the Short
North Posse enterprise. All five, including Clifford Robinson, were convicted of various
murders in aid of racketeering and other similar crimes. On appeal, defendants collectively raise
more than fifteen claims, only two of which have merit. Ussury’s conviction for the murder of
Dante Hill in aid of racketeering must be vacated because there is insufficient evidence that
Ussury acted with the necessary statutory purpose, and Harris’s and Robinson’s convictions for
murder by firearm during a crime of violence must be vacated in light of United States v. Davis,
No. 18-431, __ S. Ct. __, 2019 WL 2570623 at *13 (June 24, 2019).
I.
In 2014, a federal grand jury returned an indictment against seventeen defendants,
including the five here. The overriding count alleged a RICO conspiracy from 2004 to 2014, in
which the Short North Posse enterprise and its associates committed overt racketeering acts
ranging from murder and robbery to drug distribution and witness tampering. The indictment
alleged more than ten counts of murder in aid of racketeering. More indictments followed and
eventually thirteen defendants pleaded guilty, one was convicted after a solo trial, and the five
defendants here were tried together before a jury.
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At trial the Government put on more than one hundred witnesses, several of whom were
former Short North Posse members. The evidence showed that the Short North Posse, which
identified itself as a local affiliate of the national Crips gang, was engaged in buying, selling, and
distributing cocaine and marijuana. The gang protected its business and supplemented its
income through robberies, often armed and regularly of the brutal home-invasion variety. The
Short North Posse maintained its clout through violence and intimidation against those who
meddled in its business or harmed or disrespected its members.
Apparently, Ledbetter was the de facto leader of the gang, and under his management the
gang formed two sub-groups, known as the “Cut Throat Committee” and “Homicide Squad,”
specializing in murders and robberies of rival gang members, competing drug dealers, and other
deep-pocket targets. Ledbetter often orchestrated these jobs, and any gang members and outside
associates who participated would typically be paid or split the spoils. Former Short North Posse
members identified Ledbetter, Liston, Harris, and Ussury as members or associates of the
Homicide Squad.
At trial, the jury heard evidence about eight charged murders, discussed in more detail
below in connection with our analysis of the claims on appeal. Those murders include the
revenge killing of Alan Johnson for the death of Ledbetter’s brother, the murder of Donathan
Moon during a night-time raid of a target’s house and business, and the assassination of Crystal
Fyffe for her cooperation with police. In addition to those murders, the jury heard about many
other criminal acts in furtherance of the enterprise conspiracy—like a 2006 gun-battle between
the Short North Posse and its rival gang, D-Block, which saw more than three hundred rounds
fired and several people shot. After two months of trial, each of the five defendants was
convicted and sentenced to at least one mandatory life sentence for murder in aid of racketeering
under 18 U.S.C. § 1959, and all but Robinson were convicted of RICO conspiracy, 18 U.S.C.
§ 1962(d), among several other convictions and sentences.
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II.
Defendants have raised a number of issues on appeal. All but two lack merit.
A. Severance Motions
Ussury and Robinson did not want to be tried with each other or their other codefendants,
out of fear that they would be prejudiced by their codefendants’ long and ignominious resume of
bad acts. They each moved for severance, but the district court held that a joint trial was
preferable. Ussury argues that joinder under Federal Rule of Criminal Procedure 8(b) was
improper from the start, and both Ussury and Robinson argue that the district court abused its
discretion in denying their motions for severance under Rule 14 because of spillover prejudice.
Neither argument holds water. Joinder was permissible under Rule 8(b), and the district court
did not abuse its discretion in denying severance absent a specific, compelling showing of
prejudice.
Joinder was proper under Rule 8(b) because four of the five defendants (including
Ussury) were indicted for the same RICO conspiracy, and all were charged with various murders
in furtherance of the same racketeering enterprise. For joinder, the allegations in the indictment
are what matter. See United States v. Chavis, 296 F.3d 450, 456 (6th Cir. 2002). Under Rule
8(b), the government can charge multiple defendants in the same indictment if “they are alleged
to have participated in the same act or transaction, or in the same series of acts or transactions,
constituting an offense or offenses.” Fed. R. Crim. P. 8(b). Here, the defendants were charged
with participating in or assisting the same racketeering enterprise—the Short North Posse—and
many were charged in the same racketeering murders too. Every count in the indictment
allegedly arose out of defendants’ conduct on behalf of or in coordination with the Short North
Posse. That is enough for Rule 8(b), as we have long held in RICO conspiracy cases. See
United States v. Davis, 707 F.2d 880, 883 (6th Cir. 1983). Forcing the Government to prove
these overlapping facts again and again in multiple trials would only cause the sort of
unnecessary expense, inconvenience, and delay that joinder is meant to avoid. Cf. United States
v. Lane, 474 U.S. 438, 449 (1986).
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Setting the initial joinder aside, Ussury and Robinson together argue that the court abused
its discretion by not severing the trials under Rule 14(a) for prejudice. Under Rule 14(a), a
district court “may” sever a joint trial if trying the moving defendant together with others
“appears to prejudice [the] defendant.” Fed. R. Crim. P. 14(a). To overturn a denial of
severance, a defendant must show “compelling, specific, and actual prejudice” resulting from the
joint trial. See United States v. Saadey, 393 F.3d 669, 678 (6th Cir. 2005). But neither defendant
has done this. Instead they raise generalized concerns that are inherent in joint trials and that
have been held to fall short of compelling prejudice: that “proof is greater against a co-
defendant,” United States v. Warner, 971 F.2d 1189, 1196 (6th Cir. 1992), that each “may have
[had] a better chance of acquittal in separate trials,” Zafiro v. United States, 506 U.S. 534, 540
(1993), and that “inflammatory evidence [was] admitted against one defendant, not directly
involving another codefendant,” United States v. Gallo, 763 F.2d 1504, 1525 (6th Cir. 1985).
Mere statement of these common concerns is not a specific, compelling showing of actual
prejudice.
Robinson’s argument on this front is somewhat stronger because he was not charged with
RICO conspiracy or alleged to have been a Short North Posse member. Evidence showed that he
was more of an outside associate, helping out on certain jobs in exchange for a share of the
profits. Even so, Robinson’s charge for murder in aid of racketeering required the Government
to prove that the Short North Posse was a racketeering enterprise and that Robinson acted to earn
a profit from the enterprise. See 18 U.S.C. § 1959(a). That makes the crimes of Robinson’s
codefendants in furtherance of that enterprise relevant vis-à-vis Robinson—they speak to the
existence and purpose of the enterprise that Robinson was charged with aiding. Thus, much of
the evidence putatively against Robinson’s codefendants would be admissible against him in a
separate trial. “Where the same evidence is admissible against all defendants, a severance should
not be granted.” See Warner, 971 F.2d at 1196.
Were there any doubt, the district court gave a limiting instruction—that the jury
separately consider evidence against each defendant on each charge. That instruction sufficed to
cure any risk of prejudice. See Zafiro, 506 U.S. at 539.
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B. Ledbetter’s Suppression Motion
Ledbetter challenges the district court’s refusal to suppress drugs, cash, and a handgun
that police discovered on him and in his car during a traffic stop.
In December 2007, long before trial, Ledbetter ran a red light and turned without
signaling and so was pulled over by police. Police had been following Ledbetter since he made a
pitstop at a suspected drug house a few miles back. But Ledbetter concedes that the stop was
based on the traffic violations and thus lawful. Ledbetter disputes, however, that the officers
reasonably suspected him of being armed and dangerous when they ordered him out of the car
and frisked him for weapons. The frisk uncovered marijuana and large wads of cash, which gave
officers probable cause to search the rest of the car; that search turned up more marijuana, crack
cocaine, a 9mm handgun, and $45,000 in cash. Ledbetter moved to suppress this evidence on the
ground that the Terry frisk was unlawful and thus tainted the subsequent dog-sniff and search of
the car. In other words, without the drugs discovered during the pat down (which Ledbetter says
is unsupported by reasonable suspicion), officers would not have had probable cause to search
the car. But the district court correctly held that officers had sufficient reasonable suspicion to
perform the pat down.
Given the totality of the circumstances, the officers reasonably concluded that Ledbetter
might be armed and presently dangerous. The Terry frisk was therefore proper. See Arizona v.
Johnson, 555 U.S. 323, 331 (2009) (citing Pennsylvania v. Mimms, 434 U.S. 106, 112 (1977)
(per curiam)). First, the officers testified (and the district court found) that Ledbetter did not
immediately stop after the officers activated their lights and siren. Instead, Ledbetter completed
a turn, “slowed down in an apparent feint to pull over, sped up, and then finally pulled over for
good” at the next intersection. The initiating officer testified that this behavior was “a huge red
flag” because “[w]hen we’ve seen that before in the past, that’s somebody who is trying to hide a
gun, or do something to harm us.” Second, as the officers approached the car, Ledbetter was
facing the passenger seat with his hands toward the center console (rather than looking back at
the officers or straight ahead with his hands on the wheel)—an action that the officer testified
was consistent with reaching for or hiding a weapon. Third, the officers noticed that Ledbetter
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was sweating profusely, breathing heavily, and had glassy eyes and “uncontrollably” shaky
hands.
These facts, taken together, support a reasonable suspicion that Ledbetter might have
been armed and dangerous. This court has held repeatedly that a driver’s behavior—most
notably, the failure to immediately pull over and any attempts to evade officers—can support a
reasonable suspicion. See, e.g., Hoover v. Walsh, 682 F.3d 481, 495 (6th Cir. 2010); United
States v. McCauley, 548 F.3d 440, 445 (6th Cir. 2008); Watkins v. City of Southfield, 221 F.3d
883, 889 (6th Cir. 2000). This court has also found reasonable suspicion where a defendant
reaches his hand between the center console and the passenger seat as officers approach. See
United States v. Bost, 606 F. App’x 821, 825 (6th Cir. 2015). Ledbetter’s overly nervous
behavior, although less probative and thus less relevant, see United States v. Noble, 762 F.3d
509, 522 (6th Cir. 2012), may also contribute to a reasonable suspicion, see Illinois v. Wardlow,
528 U.S. 119, 124 (2000). Finally, it is relevant that the stop occurred at night in a high-crime
area. See Hoover, 682 F.3d at 495 (citing Wardlow, 528 U.S. at 124). Though individually these
facts might not support a reasonable suspicion, together they do.
In any event, any error in admitting the evidence was harmless. The evidence obtained
through the search was not essential to any of Ledbetter’s convictions and played only a minimal
role in the two-month trial. Ledbetter makes much of the fact that his possession of this
contraband was listed in the indictment as an overt act in furtherance of the RICO conspiracy.
But it was one of more than one hundred other acts, and was in no way central to his conviction.
The jury needed to find only two overt acts to convict Ledbetter of conspiracy—and, in fact,
found that Ledbetter committed three murders in connection with the enterprise. In light of the
extensive evidence at trial, any error in the admission of this evidence was harmless. See United
States v. Garcia, 496 F.3d 495, 506 (6th Cir. 2007).
C. Expert Testimony
Liston, Harris, and Ussury argue that the district court improperly allowed opinion
testimony by L.A. Police Detective Wayne Caffey, on gang (and specifically Crips) culture and
customs, and by Columbus Police Lieutenant Smith Weir, on Columbus gangs specifically
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(including the Short North Posse). They did not object on these grounds below, so their claims
are subject to “plain error” review. There was no plain error here. The court properly followed
the procedure set out in United States v. Johnson, 488 F.3d 690 (6th Cir. 2007), for qualifying
Detective Caffey as an expert, Detective Caffey’s expert testimony on gang customs was
relevant, and the Government’s failure to properly notice Detective Caffey as an expected
witness was harmless. As to Lieutenant Weir, the court did not abuse its discretion in permitting
his lay-witness opinion testimony about the Short North Posse.
As an initial matter, these challenges are subject to “plain error” review because the
defendants did not object below. See Johnson, 488 F.3d at 697. Defendants are conspicuously
silent on this point as to Lieutenant Weir but contend that they did object to Detective Caffey’s
qualification as an expert. The transcript tells a different story. To be sure, defense counsel
asked the court at sidebar whether Caffey “[had] been qualified and declared an expert,” but the
court responded by reminding counsel that an expert designation need not be made on the record
in front of the jury under Johnson, 488 F.3d at 698. Asking whether Detective Caffey had been
qualified is not the same as objecting to his qualification. The court identified the controlling
qualification procedure under Johnson, but defendants failed to follow it.
Detective Caffey. Defendants first argue that the district court failed to properly assess
Detective Caffey’s qualifications or formally certify him as an expert. But that argument
misunderstands the process that this court blessed in Johnson for qualifying law enforcement
experts. To prevent the jury from drawing any implicit note of approval from a court’s
certification of a witness as an expert, Johnson held that a court should not qualify a witness
before the jury at the outset of testimony. “Instead, the proponent of the witness should pose
qualifying and foundational questions and proceed to elicit opinion testimony. If the opponent
objects, the court should rule on the objection, allowing the objector to pose voir dire questions
to the witness’s qualifications if necessary and requested.” Id. at 697–98. Had defendants
objected after Detective Caffey testified about his background and qualifications, then the court
would have been required to rule on Caffey’s qualifications and perhaps allow for voir dire. But
the defendants did not object—even after the court identified Johnson as the governing
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precedent. Defendants cannot now claim error, let alone plain error, because of their own failure
to follow the proper procedure below.
Nor did the court abuse its discretion in admitting Detective Caffey’s testimony as
relevant expert opinion evidence under Federal Rule of Evidence 702. Detective Caffey was
highly qualified: (1) he had served as an L.A. police officer for thirty-five years; (2) had spent
most of his career working gang assignments, including twelve years in a gang surveillance unit;
(3) had taken several specialized gang training courses; (4) had taught gang-related topics to law
enforcement officials and others for twenty-five years; and (5) had testified about gangs and
gang culture five times in federal court and something like five hundred times in state court. The
district court sensibly noted that it “[could not] imagine too many people having more
credentials.”
Moreover, Detective Caffey’s testimony about gang, and particularly Crip, culture was
relevant and helpful to the jury in understanding the evidence about the Short North Posse, which
the Government alleged to be a local “set” of the national Crips gang. Detective Caffey testified
about the Los Angeles origins of the Crips and the proliferation of “Crip sets,” or independent,
neighborhood-specific offshoots, which though independent would often share a certain culture.
He also reviewed and opined on photographs of graffiti found in the Short North area, which he
identified as incorporating common Crips gang signs. At the same time, Detective Caffey made
clear that he was not familiar with any gang sets in Columbus and was testifying “just generally
[about] what you see nationally.” In other words, Detective Caffey equipped the jury with an
understanding of general Crips culture to help it determine whether the Short North Posse was a
criminal enterprise.
As we said in Johnson,
[c]ourts generally have permitted police officers to testify as experts regarding
drug trafficking as long as the testimony is relevant and reliable. . . . There are
innumerable trades and practices that employ their unique devices, feints, and
codes that may mean nothing to the untrained observer but may speak volumes to
a maven qualified by experience or training.
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Id. at 698. Testimony “regarding the inner-workings of organized crime” fits squarely within
this category and thus is a “proper subject of expert opinion.” See United States v. Tocco, 200
F.3d 401, 419 (6th Cir. 2000).
Notwithstanding Detective Caffey’s general qualifications, defendants argue that his
testimony was irrelevant and unreliable because he lacked specific knowledge about Columbus
gangs. True enough, “a gang expert’s testimony . . . is reliable only insofar as it is based on
significant experience with the gang about which the expert is testifying.” See United States v.
Rios, 830 F.3d 403, 414 (6th Cir. 2016) (emphasis omitted). Thus, Detective Caffey would not
have been a reliable expert on the Short North Posse itself. But he did not purport to be.
Detective Caffey opined about the national Crips gang, on which he was qualified, and the
Government used other testimony to show that the Short North Posse fit the description of a Crip
set. This exact approach—eliciting expert testimony on a national gang and separately drawing a
link to the local set—was approved of in Rios. See id. at 415. Arguments that this link was too
tenuous go to the weight of Detective Caffey’s testimony and not its admissibility. See id. at 415
n.1.
Finally, defendants argue that the Government violated Federal Rule of Criminal
Procedure 16(a)(1)(G) by failing to provide a pre-trial summary of Detective Caffey’s intended
testimony. Defendants are correct that the Government breached its disclosure obligation, but
that breach does not warrant relief. First, defendants did not object on these grounds below, so
their claim is reviewed only for plain error. See United States v. Faulkenberry, 614 F.3d 573,
590 (6th Cir. 2010). Second, by failing to object below, defendants prevented the district court
from curing the procedural notice violation with a less drastic remedy than requiring a new trial
or precluding the evidence. The court could have, for instance, merely granted a continuance so
that defendants had sufficient time to prepare for Detective Caffey’s testimony. See Fed. R.
Crim. P. 16(d). Finally, the Government’s error did not seriously affect the fairness of the
proceedings—and thus is not cognizable on “plain error” review—because defendants were on
constructive notice that the Government intended to put on evidence of this sort. The court had
indicated that gang-related expert testimony would be permissible from an appropriate witness,
the Government stated on the record the day before his testimony that it would be calling
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Detective Caffey as an expert, and the Government’s witness list named him as a witness.
Because defendants had constructive notice of Detective Caffey’s testimony, the Government’s
failure to provide a summary of that testimony under Rule 16 was not plain error.
Lieutenant Weir. Defendants also argue that the district court abused its discretion in
permitting gang-related opinion testimony by Lieutenant Weir. But again defendants failed to
object on this ground below; thus, we review only for plain error. The bulk of Lieutenant Weir’s
challenged testimony was permissible testimony about his own observations of gang-related
activity in the Short North. A review of the transcript pages that defendants cite shows that
Lieutenant Weir testified about his own observations of gang graffiti in the Short North, gang
signs thrown by members of that community, and photos of defendants and others wearing
clothes or tattoos suggesting gang affiliation. Lieutenant Weir’s testimony arguably strayed into
the realm of opinion—such as when he opined that the Short North Posse is a set of the national
Crips gang—but permissibly so. A non-expert witness is permitted to testify “in the form of an
opinion” that is “rationally based on the witness’s perception.” Fed. R. Evid. 701(a). Lieutenant
Weir’s opinions about the Short North Posse were rationally based on his perception of the Short
North Posse’s activities and use of Crips-related gang signs during his time as a Columbus police
officer.
On this record, defendants have not shown that it was plain error to admit Lieutenant
Weir’s lay-witness testimony on these subjects. Lieutenant Weir’s testimony was reasonably
considered lay-witness opinion testimony, and much of his opinion testimony linking the Short
North Posse to the Crips was duplicative of other testimony—including by former Posse
members. Defendants make much of the fact that the district court had previously ruled that
Lieutenant Weir was unqualified to give expert testimony on national gang culture. But that
exclusion does not undercut the value of Lieutenant Weir’s testimony stemming from his own
experiences with the Short North Posse. If anything, that the district court allowed this
testimony despite its earlier order suggests that Lieutenant Weir’s testimony was admitted and
understood as proper lay-witness testimony, not improper expert testimony.
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D. Ledbetter’s Sufficiency Claims
Ledbetter argues that there was insufficient evidence to convict him on any of the nine
counts on which he was found guilty. In reviewing such a claim, we determine whether, after
“viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.” United States
v. Callahan, 801 F.3d 606, 616 (6th Cir. 2015) (quotation marks omitted); see also Jackson v.
Virginia, 443 U.S. 307, 319 (1979). This is a “very heavy burden” on a defendant, Callahan,
801 F.3d at 616, and Ledbetter has not carried it.
1. RICO Conspiracy
Ledbetter was convicted of RICO conspiracy, 18 U.S.C. § 1962(d), for his membership in
the Short North Posse. Section 1962(d) makes it unlawful to conspire to associate with and
participate in the conduct of an enterprise through a pattern of racketeering. See § 1962(c).
Ledbetter concedes that the Short North Posse was a racketeering enterprise, as defined by
§ 1961, but contends that there was insufficient evidence that he agreed to participate in any
RICO conspiracy. To establish a conspiracy to violate federal law, the Government need not
“prove a formal agreement [to conspire], because a tacit or mutual understanding among the
parties is sufficient to show a conspiratorial agreement.” See United States v. Gardiner, 463
F.3d 445, 457 (6th Cir. 2006) (quoting United States v. Bavers, 787 F.2d 1022, 1026 (6th Cir.
1985)). Here, there was substantial evidence from which a rational jury could infer that
Ledbetter conspired with his codefendants to engage in racketeering activity in association with
the Short North Posse:
• Ledbetter had “Short North” tattooed on his chest;
• Ledbetter was a major supplier of drugs for others to sell in the Short North;
• Ledbetter regularly recruited other members and associates of the Short North Posse to
commit murders and robberies;
• Ledbetter directed other Short North Posse associates to engage in criminal activity on
his behalf, while he remained on the periphery;
• Ledbetter shared in the profits of the Short North Posse’s criminal enterprise, and also
shared the bounty with members who committed acts on behalf of the enterprise; and
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• Ledbetter directed retaliation for acts of violence against Short North Posse members and
for anyone who put the enterprise at risk by bragging or snitching.
In the face of this evidence, Ledbetter argues that he was never tied to minor street crimes
of the kind that his codefendants committed, like one-off muggings and beatings. Even
assuming that is true, it takes no account of all of the evidence linking Ledbetter to far more
serious crimes on behalf of the Short North Posse. Indeed, that Ledbetter did not participate in
so-called minor crimes is consistent with the Government’s theory that Ledbetter was the head of
the Short North Posse. Making all inferences in favor of the Government, a rational juror could
find that Ledbetter formed a tacit RICO conspiracy to associate with and participate in the Short
North Posse’s affairs through a pattern of racketeering.
2. The Johnson Murder
Ledbetter also challenges his conviction for the murder of Alan Johnson in aid of
racketeering, 18 U.S.C. § 1959(a). Ledbetter argues that the Government failed to prove that he
was involved in Johnson’s murder. Although Ledbetter may not have pulled the trigger, a
rational juror could have found beyond a reasonable doubt that Ledbetter was sufficiently
involved in Johnson’s murder to be charged as a principal for that offense. “Whoever commits
an offense against the United States or aids, abets, counsels, commands, induces or procures its
commission, is punishable as a principal.” 18 U.S.C. § 2. That provision “reflects a centuries-
old view . . . that a person may be responsible for a crime he has not personally carried out if he
[knowingly] helps another to complete its commission.” Rosemond v. United States, 572 U.S.
65, 70 (2014).
First, there was evidence of motive. Several witnesses testified that Ledbetter’s brother
was murdered two weeks earlier and that word on the street was that Johnson was responsible.
Samantha Murphy testified that, shortly after his brother’s death, Ledbetter told her that “he
wants to take care of who killed his brother.”
Second, there was direct evidence of Ledbetter’s actions on the night of the murder.
Murphy testified that Ledbetter and others were at her house when he received a call letting him
know where Johnson was. Murphy testified that all of the men had guns and that, after receiving
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the call, a few of the men donned black hoodies and then left. Although Murphy did not leave
with Ledbetter, Anthony Jones (a Short North Posse member) testified that Ledbetter and Marcus
Peters picked Jones up in a van, and that Jones then directed and accompanied Ledbetter and the
others to the house where Johnson was killed. Jones testified that he showed them to Johnson’s
apartment; that Ledbetter and Peters exited the car with guns drawn and met Harris outside the
apartment before entering; and that Jones heard gunshots before Ledbetter and Peters returned to
the van. Johnson testified that Ledbetter paid him $3,500 for assisting in Johnson’s murder.
Third, there was testimony by several witnesses who had indirect knowledge of what
happened. Kenneth Slaughter, another Short North Posse member, testified that Peters (who
died before trial) told Slaughter that Peters and Harris shot Johnson while Ledbetter
accompanied them, in retaliation for the death of Ledbetter’s brother. Earl Williams, who had
also spoken with Peters about the Johnson murder, relayed that Peters, Ledbetter, and Harris
“caught up with the dude [Johnson] inside of a place” and that Peters and Harris shot him dead.
Troy Patterson, yet another Short North Posse member, testified that Harris had told him how he,
Peters, and Ledbetter murdered Johnson, and that Ledbetter paid Harris and Peters $10,000 for
the hit. Allen Wright, a former Short North Posse member, testified that he too heard about the
murder from Harris, who admitted to killing Johnson along with Ledbetter and Peters.
Ledbetter’s girlfriend, Crystal Fyffe, before she was murdered (at Ledbetter’s direction), told her
attorney and mother that Ledbetter had killed the person who killed his brother. Finally, Murphy
testified that Ledbetter proudly told her that he “took care” of Johnson and paid off Johnson’s
girlfriend for tipping him off on Johnson’s location.
Ledbetter argues that this evidence is insufficient because none of the testifying witnesses
had personal knowledge of what occurred, and because some of the stories—for instance
Murphy’s and Jones’s versions of who directed whom to Johnson’s house—are slightly
inconsistent. But that argument ignores Jones’s first-hand knowledge of the murder and
presupposes an evidentiary eyewitness requirement that does not exist. “Circumstantial evidence
alone is sufficient to support a conviction, and it is not necessary for the evidence to exclude
every reasonable hypothesis except that of guilt.” Johnson v. Coyle, 200 F.3d 987, 992 (6th Cir.
2000) (quotation marks omitted). The jury was entitled to convict based on Jones’s first-hand
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account and the second-hand accounts of several witnesses, whose stories for the most part
corroborated each other’s. In effect, Ledbetter asks this court to do what it cannot: “reweigh the
evidence, reevaluate the credibility of witnesses, or substitute our judgment for that of the jury.”
See Callahan, 801 F.3d at 616. Thus, his claim fails.
3. The Williams Murder
Ledbetter was convicted of two offenses for the murder of Rodriccos Williams:
(1) murder in aid of racketeering, 18 U.S.C. § 1959(a)(1), and (2) murder with a firearm during a
drug trafficking crime, 18 U.S.C. § 924(j). As with his prior claim, Ledbetter argues only that
the evidence was insufficient to show that he was involved in Rodriccos Williams’s murder; he
does not challenge the evidence of any specific motivational or other element. There was
substantial evidence linking him to this murder as well.
Again, there was evidence of motive. Michael Boyd, a strip-club proprietor, testified
that Ledbetter visited his club a few weeks before the murder and expressed hostility toward
Rodriccos Williams, who was apparently seeing Ledbetter’s ex-girlfriend, Latonia Boyce. That
night at the club Ledbetter told Boyd about how his crew, the Cut Throat Committee, hurt
people. Out of fear for Rodriccos Williams and Boyce’s safety, Boyd called and warned them
not to come by the club while Ledbetter was around.
The jury heard a first-hand account of the murder from Earl Williams, who assisted
Ledbetter in carrying it out. Earl Williams explained that Ledbetter had recruited him to help
with the home invasion of Rodriccos Williams’s house, so that he could keep an eye on the
younger members joining them—Harris, Liston, and R.J. Wilson. According to Earl Williams,
Ledbetter was on the phone with Boyce for intelligence as they approached the house; she said
that Rodriccos Williams was arriving home soon, so they waited to ambush him at his door.
When Rodriccos Williams arrived, the group charged the door. Harris, Wilson, and Liston
struggled with Rodriccos Williams just inside; Earl Williams ran upstairs and robbed a woman at
gunpoint; and Ledbetter oversaw the operation from the doorway. As Earl Williams was robbing
the woman upstairs, he heard several gunshots—the shots that killed Rodriccos Williams—and
returned downstairs before retreating back to the getaway car with the rest of the crew.
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Earl Williams’s account was corroborated by other evidence. Latonia Boyce agreed that
she had spoken with Ledbetter by phone that night and told him that her husband and children
were returning from a movie shortly before the ambush. Phone records back that up too. Boyce
also confirmed that she was the woman in the upstairs bedroom who was robbed by Earl
Williams. Rodriccos Williams’s brother-in-law testified that he saw three masked, black-clad
men barrel into the house with Rodriccos Williams, as Earl Williams had described, before
shooting him to death. Crystal Fyffe (Ledbetter’s girlfriend) told her attorney and law
enforcement (before her murder) that Ledbetter had called to ask for directions to Rodriccos
Williams’s house earlier that day. Fyffe also apparently told her mother that she had disposed of
some items for Ledbetter after the murder—items that Earl Williams identified as the black
clothes and masks they wore.
There is more. Cell-site records placed Ledbetter in Pickerington, Ohio, near Rodriccos
Williams’s house, around the time of his murder. Plus, Ledbetter’s own text messages and
testimony by other witnesses showed that Ledbetter was later concerned that Earl Williams—
who was in jail on other charges—was talking to the police about Rodriccos Williams’s murder
in hopes of cutting a deal.
According to Ledbetter, this mountain of evidence is insufficient because Earl Williams
may have made up the story to scapegoat Ledbetter and cut a deal with police. But it is
Ledbetter’s own speculation that is insufficient. Even the “uncorroborated testimony of an
accomplice” may support a conviction. See United States v. Owens, 426 F.3d 800, 808 (6th Cir.
2005) (quoting United States v. Spearman, 186 F.3d 743, 746 (6th Cir. 1999)). Here there was
more. It was for the jury to believe or disbelieve Earl Williams, and they reasonably chose to
believe him.
3. The Fyffe Murder
Ledbetter was also convicted of three crimes for the murder of Crystal Fyffe, his
girlfriend turned cooperating witness: (1) murder in aid of racketeering, 18 U.S.C. § 1959(a)(1),
(2) conspiracy to murder a witness, 18 U.S.C. § 1512(k), and (3) discharge of a firearm during a
crime of violence, 18 U.S.C. § 924(c). Once again, Ledbetter argues broadly that there was
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insufficient evidence that he was involved in the murder at all—he does not contest any specific
motivational or other element. Although Ledbetter was in prison when Fyffe was murdered,
there was, making all inferences in favor of the Government, sufficient evidence for a rational
juror to find that Ledbetter orchestrated Fyffe’s murder.
The evidence showed that Fyffe and Ledbetter had a violent relationship. Once,
Ledbetter went so far as to tie Fyffe up and shoot her in the hand for threatening to leave him. In
that same vein, the jury saw text messages between the two that could be read as death threats by
Ledbetter after Fyffe confronted him about his infidelity. The evidence amply showed that Fyffe
knew much about Ledbetter’s criminal activity, and that Ledbetter suspected her of cooperating
with law enforcement.
Ledbetter threatened Fyffe repeatedly for what he perceived as snitching, and Fyffe took
those threats seriously. Before her death, Fyffe confided in her attorney that she was afraid
Ledbetter or an associate would kill her, and even showed the attorney a letter in which
Ledbetter threatened to kill her if she cooperated with police. Fyffe’s mother testified that Fyffe
had recounted her fear of a man, known as “Santa,” who was a contract killer of Ledbetter’s.
Sure enough, in one of many threatening letters, Ledbetter wrote to Fyffe—in July—that “before
you know it Santa Claus will be coming to town . . . I am sure not happy that I won’t get to see
these days in person.” Ledbetter also intimated that he had circulated photos of Fyffe to fellow
Short North Posse members so that they could find and kill her.
The circumstances of Fyffe’s murder strongly suggest that Ledbetter followed up on his
threats to have her assassinated. Fyffe was shot in the head outside her home as she returned
with a pizza one evening. There were no witnesses, and though she had phones and keys on her,
they were not taken—suggesting Fyffe’s murder was neither a random act of violence nor a
robbery gone bad, but a calculated killing.
The evidence against Ledbetter on these counts is entirely circumstantial, but
circumstantial evidence alone can support a conviction. Johnson, 200 F.3d at 992. Ledbetter
argues that it is possible, by considering various pieces of evidence, to draw conclusions
different from those the jury drew. For example, he reads his letters and texts as the mark of a
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heated lovers’ quarrel, not as the thinly-veiled threats of a would-be executioner. But that misses
the point at this stage, where all inferences must be made in favor of the prosecution and the
evidence need not “exclude every reasonable hypothesis except that of guilt.” See id. (quoting
United States v. Reed, 167 F.3d 984, 992 (6th Cir. 1999)). The evidence reasonably showed that
Ledbetter had motive to kill Fyffe because of her cooperation with police, had ordered other
targeted killings in the past, and had threatened Fyffe that he was sending one of his contract
killers to murder her; that Fyffe feared for her life and conveyed those fears to her mother and
attorney; and that Fyffe’s murder was an assassination and not a random act of violence. That is
enough evidence of Ledbetter’s guilt.
4. The Brumfield Murder
Ledbetter was also convicted of murder in aid of racketeering, 18 U.S.C. § 1959(a)(1),
and murder with a firearm during a drug trafficking crime, 18 U.S.C. § 924(j), for the death of
Marschell Brumfield. Ledbetter yet again argues that the evidence was insufficient to show that
he was involved in the murder and, in doing so, challenges the credibility of the witnesses
against him. But credibility determinations are left to the jury, Callahan, 801 F.3d at 616, and a
rational juror could have found sufficient evidence to convict Ledbetter for murdering
Brumfield.
Troy Patterson, an unindicted coconspirator, testified that Ledbetter ordered Patterson,
Liston, Ussury, Franklin, and Harris to rob Brumfield, and that the group shot Brumfield to death
after the robbery went bad. Patterson testified that Ledbetter guided the group to Brumfield’s
house and then parked nearby so that he could watch from “behind the scenes” without being
seen. Patterson and Harris were knocking on Brumfield’s apartment door when Brumfield
arrived home to what turned out to be an armed ambush outside his apartment. The group
ordered Brumfield to strip, but he fought back. As Brumfield took a swing, Liston shot him
three or so times in the stomach; as Brumfield fell to the ground, Ussury and Franklin fired three
or four more rounds. According to Patterson, Harris later explained to him that Ledbetter had
ordered the robbery after witnessing Brumfield buy a large amount of drugs from one of
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Ledbetter’s dealers. Ledbetter had followed Brumfield home from the drug-buy so that he could
later return with the hit-squad.
The jury could convict Ledbetter on Patterson’s firsthand account of the robbery gone
bad. Again, the “uncorroborated testimony of an accomplice” may support a conviction. See
Owens, 426 F.3d at 808 (quotation marks omitted). Further, Patterson’s account was
corroborated by two neighbors who saw the encounter and its aftermath, respectively. Once
again Ledbetter argues that the testimony was incredible yet concedes in the same breath that
credibility is for the jury. See United States v. Kessler, 352 F.2d 499, 499 (6th Cir. 1965) (per
curiam). Without more, Ledbetter has not shown that the evidence was insufficient.
E. The Hill Murder
Ussury challenges his conviction for murder in aid of racketeering, 18 U.S.C.
§ 1959(a)(1), for the shooting death of Dante Hill. Specifically, Ussury argues that there was
insufficient evidence that he (i) murdered Hill or (ii) did so for either of the two possible
statutory purposes—in consideration for anything of pecuniary value from the enterprise (the
“pecuniary gain” motivation) or to gain entrance to or maintain or increase his position in the
enterprise (the “positional” motivation). § 1959(a). The evidence showed that Ussury murdered
Hill. Though no one could identify the shooter, Ussury was supposed to be selling Hill drugs
when Hill was shot during a drug deal, a witness and cell-site records put Ussury in the area, and
two cooperating witnesses testified that Ussury admitted shooting Hill.
A rational juror could not, however, have found beyond a reasonable doubt that Ussury
murdered Hill either for pecuniary gain from the Short North Posse or to boost his position
within the gang. Whether Ussury planned to murder Hill from the start or resorted to murder
only after the drug deal had gone bad, Ussury acted alone and without any apparent benefit to the
Short North Posse. This was the work of a single person, who happened to be in a gang. To find
sufficient evidence of racketeering purpose here would be to convert the violent-crimes-in-aid-
of-racketeering statute into a gang-status crime, punishing any and all violent crimes by gang
members, no matter their relation to a racketeering enterprise. That sweeps too broadly.
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Tabib Broomfield, a drug dealer and friend of Ussury’s, testified that he called Ussury on
the day of the murder to ask if Ussury would drive over to Broomfield’s house to sell marijuana
to Hill, a regular buyer of Broomfield’s. Broomfield was fresh out. Ussury said that he would
try to make it. Hill’s girlfriend, Casey Martin, accompanied Hill to Broomfield’s house and
waited in the car, parked in Broomfield’s driveway, as Hill headed in to transact his business.
Almost immediately, though, Hill was chased back to the car by a man in a black hoodie, who
shot Hill before running off. Martin could not identify the shooter.
Broomfield was a few blocks away when Hill was shot, but returned to his house when
he saw Ussury’s car drive away while Hill’s car remained in the driveway. Broomfield returned
home to find Hill bleeding from a gunshot wound as Casey struggled to lift him into the car.
Shocked, Broomfield called Ussury from his cell phone and headed to the Short North to see
him. Over the phone, on Broomfield’s way there, Ussury told him that “everything went bad.”
According to Broomfield, Ussury added that Hill “was trying to do something to him,” which
Broomfield found unlikely given Hill’s small stature.
After shooting Hill, Ussury apparently drove to one of the houses frequented by Short
North Posse members. According to Anthony Jones, who was at the house that night with a few
fellow Posse members, Ussury told the group how he had tried to rob Hill at Broomfield’s house
but ended up shooting him after Hill reached for his gun. Ussury asked the group for help
getting rid of the gun. Troy Patterson testified that Ussury had also recounted to him how
Ussury was supposed to do a weed deal with a guy at Tabib Broomfield’s house but “ended up
robbing him, shooting him, and killing him.”
Although this evidence—most pointedly, Ussury’s admissions—showed that Ussury
murdered Hill, it did not show beyond a reasonable doubt that Ussury did so for one of
§ 1959(a)’s statutory purposes.
Pecuniary Gain. The Government’s first account of the facts is that from the beginning
Ussury agreed to the drug deal only as a ruse to rob Hill—a plausible story to be sure.
According to that view, Ussury robbed and murdered Hill for something of pecuniary value—
Hill’s money. But § 1959(a) requires consideration of pecuniary value “from the enterprise,” not
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from the victim. Thus, as the Government concedes, this account does not fit the classic “murder
for hire” narrative, where an enterprise pays someone to rob or kill a specific target. Instead, the
Government relies on an “enterprise profits” theory of the pecuniary-gain motivation. The
Government reads § 1959(a) to cover a violent crime committed in the course of enterprise-
related work so long as the person expects to profit from the overall affairs of the enterprise.
One example would be an organization where members pool the profits from individual
robberies and then each takes a cut or draws a salary of sorts from the organization’s overall
profits. Any particular robbery would garner pecuniary gain directly from the victim, but viewed
collectively the robberies would increase the profits of the enterprise—and the robber would take
his share from the enterprise.
The “enterprise profits” theory of pecuniary gain is a sound one, but it does not fit the
facts of this case. There is no evidence that Ussury intended to split whatever he got from Hill
with others in the Short North Posse. Nor is there any evidence that he robbed (and killed) Hill
in the course of his Short North Posse work—this was not the sort of robbery that the Short
North Posse regularly conducted as part of its affairs. Unlike the other Short North Posse
robberies the jury learned of, this one was conducted alone, without assistance or direction from
any of Ussury’s fellow members, and targeted a smalltime drug user rather than a competing
drug dealer, deep pocket, or rival gang. If anything, robbing and killing a smalltime buyer
needlessly risked exposing the enterprise for an inconsequential amount of money. Ussury’s
one-off robbery and murder of Hill did not contribute to the purpose of the group and thus is not
attributable to the enterprise. Cf. United States v. Odum, 878 F.3d 508, 517 (6th Cir. 2017)
(citing United States v. Feliciano, 223 F.3d 102, 117 (2d Cir. 2000)), vacated on other grounds
sub nom Frazier v. United States, 139 S. Ct. 319 (2018). Thus, this is not an appropriate case for
the “enterprise profits” theory of pecuniary gain.
Our decision in United States v. Holt, 751 F. App’x 820, 826–27 (6th Cir. 2018), albeit
unpublished, provides a useful contrast. Holt made similar arguments against his conviction for
murder in aid of racketeering after the robbery of a drug dealer devolved into murder. See id.
He argued that the prosecution did not prove an “enterprise profits” theory, because the robbery
was not a Short North Posse job, but a “side hustle” unrelated to the enterprise. The evidence
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showed otherwise. The robbery was planned by a man named Lance Reynolds, a Short North
Posse member responsible for orchestrating robberies of rival drug dealers. Id. at 821. Reynolds
often relied on associates, including Holt, from other neighborhoods to help carry out these
robberies. Id. Others testified that Holt served as an “aggressor” during several of these jobs
and had received a cut of the profits for his work. Id. at 821–22. “Given that the Short North
Posse often engaged in robberies, particularly of drug dealers, and given that one participant in
[this] robbery had characterized the robberies he committed with Reynolds as ones he committed
with the Short North Posse, a rational jury could conclude” that this was a Short North Posse
robbery and that Holt participated to gain something from the enterprise—a cut of the proceeds.
See id. at 827.
The evidence in Holt showed what is missing here: that the robbery was undertaken on
behalf of the Short North Posse, such that the ill-gotten fruits of that labor might be attributed to
the enterprise. Without evidence linking Ussury’s actions to the Short North Posse’s affairs, a
rational juror could not conclude beyond a reasonable doubt that Ussury robbed and killed Hill in
consideration for something of pecuniary value from the enterprise.
Positional Motivation. The Government relies in the alternative on the second statutory
purpose, arguing that Ussury was motivated to rob and kill Hill in order to maintain or increase
his position in the Short North Posse. A jury can reasonably infer that motive where the
evidence shows that a defendant committed the violent crime “because he knew it was expected
of him by reason of his membership in the enterprise or that he committed it in furtherance of
that membership.” See United States v. Concepcion, 983 F.2d 369, 381 (2d Cir. 1992). But the
evidence did not show that here. While there was plenty of evidence that Short North Posse
members were expected to be violent and take part in sanctioned robberies and murders, there
was no evidence that members were expected or encouraged to unilaterally rob and murder low-
level drug users who otherwise supported the gang by purchasing its drugs.
It is not enough that Ussury committed a violent crime while a member of a violent gang.
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,
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by their desire to maintain their status within the gang.” United States v. Hackett, 762 F.3d 493,
500 (6th Cir. 2014) (quoting United States v. Banks, 514 F.3d 959, 968 (9th Cir. 2008)). The
statute requires that an “animating purpose” of the defendant’s action was to maintain or increase
his position in the racketeering enterprise. See Hackett, 762 F.3d at 500. This would be a
different case entirely if the Short North Posse directed Ussury to rob and murder Hill, or if Hill
was somehow a target of the gang. If so, a reasonable jury could infer that Ussury carried out a
Short North Posse job because it was expected of him as a member. But unlike in those
hypotheticals or in any of the Government’s cited cases, one is left to guess why Ussury acted as
he did here—alone and with no apparent connection to the gang. Guesswork is not reasonable
inference.
The facts of the two cases relied on by the Government show the difference between the
reasonable inferences drawn by the juries in those cases, and the improper speculation needed
here to arrive at the statutory purpose. In United States v. Dixon, a gang member was convicted
of assault in aid of racketeering for a robbery he committed with a fellow gang member.
901 F.3d 1322, 1343 (11th Cir. 2018). Cooperating witnesses testified that the gang’s drug
money came from robberies and that a member would lose respect if he refused to help with a
robbery. See id. On the night in question, the defendant and his accomplice left for this robbery
“mission” from one of the gang’s hideouts and returned back there after it was completed to brag
about their exploits. See id. at 1333. Thus, the jury reasonably concluded that the robbery was
sanctioned by the gang and that the defendant participated because he knew it was expected of
him as a member. See id. at 1343. Had Ussury robbed Hill along with or at the direction of
fellow Short North Posse members, or had the robbery fit the mold of the gang’s typical missions
against rival dealers and gangs, then this would be a different case. But as it stands, the evidence
draws no reasonable connection between the robbery and the gang’s affairs.
United States v. Odum is also distinguishable. 878 F.3d 515, 519 (6th Cir. 2017).
In Odum, a motorcycle-gang member was convicted for shooting two rival gang members during
a barfight that broke out at the rival gang’s clubhouse. Id. at 519. The defendant joined the fight
in defense of a fellow member and immediately afterward reported his actions to gang
leadership, so that they could prepare for the likely fallout. See id. We held that a rational juror
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could find that the defendant’s “violent defense of fellow gang members was undertaken to
preserve standing in the gang when the gang ‘expected its members to retaliate violently when
someone disrespected or threatened a fellow member.’” Id. (quoting United States v. Gills,
702 F. App’x 367, 376 (6th Cir. 2017)). The Government urges the same result here—
suggesting that Ussury’s statement that “everything went bad,” could be construed to mean that
Hill attacked Ussury, and Ussury retaliated as was expected of a Short North Posse member. But
there is nothing but speculation behind this suggestion. Unlike in Odum, there is no evidence
from which a rational juror could reasonably infer that Ussury took this action because the gang
expected it of him.
At bottom, the evidence of Ussury’s motivation was thin, and whatever evidence there
was does not support a reasonable inference that Ussury robbed and murdered Hill for one of the
two statutory purposes. The evidence did not show that this was a Short North Posse robbery,
nor that Ussury committed a solo act of violence to boost his reputation within the gang. It is not
enough that a violent gang member did a violent thing. Ussury’s conviction on this count cannot
stand.
F. The Moon Murder
Harris and Robinson were each convicted of several crimes for their involvement in an
armed home-invasion robbery that led to the death of Donathan Moon. They raise various
challenges to their convictions of murder in aid of racketeering, 18 U.S.C. § 1959(a)(1), and
murder by firearm during a crime of violence, 18 U.S.C. § 924(c), (j).
The evidence showed that in August 2007 Rastaman Wilson, David Hurst, Robinson, and
Homicide Squad members Harris and R.J. Wilson conducted an armed home invasion at Greg
Cunningham’s house, which doubled as a strip club and event space. Harris broke down the
door, and the others began the assault. As Robinson charged through the battered door, he saw
Donathan Moon, a guest of Cunningham’s, bolt into a bedroom and shut the door behind him.
Robinson followed and fired three rounds from an AK-47 assault rifle through the door. Once
Robinson’s shots were fired, R.J. Wilson entered the bedroom and shot Moon to death with a
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handgun. Robinson, Harris, and the others searched the house for the cash they were hoping to
find, but found none and left.
The evidence supported two possible theories as to who initiated the robbery and why:
either Robinson discovered that Cunningham kept large sums of money at his house/business
and enlisted the Short North Posse to help steal the money in exchange for a cut of the loot, or
Robinson was conscripted by the Short North Posse for the same purpose. Either way, the
evidence showed that Cunningham often had large sums of cash at home because he ran his
illegal entertainment business from there, and that the group was after that stash. One associate,
David Hurst, testified that he agreed to be the getaway driver in exchange for a couple thousand
dollars of the expected purse. From this, and the Short North Posse’s customary splitting of
robbery profits, the jury could have inferred that Harris and Robinson also expected to receive a
cut of the proceeds in exchange for their service.
1. Robinson’s Identity Claim
Robinson argues that there was insufficient evidence that he was involved in the robbery.
However, he concedes the evidence showed that someone by the nickname “Tink” was involved
and also that he went by “Tink.” So Robinson is left to speculate that someone else with the
nickname “Tink” must have participated. This is conjecture passing for argument. Two
witnesses identified Robinson in court as the Tink that was involved in the murder. Both
witnesses also identified characteristics of the Tink they knew, which matched Robinson—
details like where his mother lived and that his first name was Clifford.
Robinson argues that all of this is insufficient because both witnesses who made in-court
identifications had misidentified Robinson in photo arrays displayed to them during the earlier
investigation. The Government counters that the photo of Robinson in the arrays was difficult to
recognize. Regardless, it was for the jury to weigh those misidentifications against the in-court
identifications and other identity evidence. See Callahan, 801 F.3d at 616. This court cannot
now disturb those evidentiary determinations.
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2. Evidence of Racketeering Purpose
Harris and Robinson were each convicted of murder in aid of racketeering, 18 U.S.C.
§ 1959(a)(1), for the murder of Donathan Moon. Each argues that there was not sufficient
evidence that he committed the murder for one of the two possible statutory purposes—for
pecuniary gain from the Short North Posse, or to increase their position within the gang.
§ 1959(a). But the jury was entitled to infer that Harris and Robinson participated in the robbery
for pecuniary gain—to split the cash they were expecting Cunningham to have kept at his dual
home/business venue. The jury could also infer that, since this was a bread-and-butter Homicide
Squad robbery, any cash they stole amounted to enterprise profits, a cut of which they hoped to
receive—from the enterprise. This is a proper application of the “enterprise profits” theory of
pecuniary gain. As this court held in connection with an earlier Short North Posse appeal,
“[h]aving concluded that this was a Short North Posse robbery, a rational jury could also
conclude that [defendants] participated in the robbery to gain something of pecuniary value from
the gang.” See Holt, 751 F. App’x at 827.
Robinson argues that this theory cannot apply to him, because he was not himself a
member of the Short North Posse enterprise. That is immaterial: Section 1959(a) is not limited
to enterprise members. On the contrary, the pecuniary-gain prong paradigmatically covers
actions by so-called independent contractors who perform violent crimes for or alongside an
enterprise for profit. See Concepcion, 983 F.3d at 384. In fact, the defendant in Holt, 751 F.
App’x at 821, was an outside associate as well.
3. Crime of Violence
For their participation in the Cunningham home invasion and Moon murder, Harris and
Robinson were also convicted of murder by firearm during a crime of violence, 18 U.S.C.
§ 924(c), (j)(1). Here, the purported “crime of violence” was conspiracy to commit Hobbs Act
robbery, which makes it a crime to conspire to “in any way or degree obstruct[], delay[], or
affect[] commerce or the movement of any article or commodity in commerce, by robbery.”
18 U.S.C. § 1951(a). Section 924(c)(3) defines “crime of violence” in two ways, but the parties
agree that conspiracy to commit Hobbs Act robbery qualifies only if it meets § 924(c)(3)(B)’s
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residual definition. By that definition, a “crime of violence” is a 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.” § 924(c)(3)(B).
Harris and Robinson argue that their convictions under § 924(c) must be set aside
because § 924(c)(3)(B)’s residual clause is unconstitutionally vague. 1 The Supreme Court has
now held that § 924(c)(3)(B)’s residual definition is unconstitutionally vague. See United States
v. Davis, No. 18-431, __ S. Ct. __, 2019 WL 2570623 at *13 (June 24, 2019). Because the
Government relies only on that now-invalidated clause to support Harris’s and Robinson’s
convictions under § 924(c), those convictions must be set aside.
G. Improper Testimony About Ledbetter’s Lawyer
Next, Ledbetter and Liston contend that the district court abused its discretion by not
declaring a mistrial after two prosecution witnesses implied on the stand that Ledbetter’s
attorney had engaged in improper (and, in one case, even criminal) acts. Although these
statements were inappropriate, the court reasonably determined that a mistrial was not necessary
and instead issued appropriate curative instructions.
The first statement came out during the Government’s direct examination of Earl
Williams, a cooperating codefendant. Williams testified that Ledbetter’s attorney had, at
Ledbetter’s direction, visited Williams in prison to encourage him to fire his attorney (for whom
Ledbetter was paying) and hire Ledbetter’s own attorney instead (also on Ledbetter’s dime).
Williams stated that Ledbetter’s attorney “question[ed him] like a detective . . . to figure out
what [he had] shared with [his] lawyer already.” Reading between the lines, Williams’s
testimony suggested Ledbetter might have been using his attorney to learn whether Williams was
talking to police. Defendants objected and, out of the jury’s presence, argued that the testimony
insinuated that Ledbetter’s counsel was improperly doing Ledbetter’s bidding. The court
concluded that the testimony was probative of Ledbetter and Williams’s membership in a
1
Harris and Robinson argue also that the Government failed to prove that the robbery conspiracy
interfered with interstate commerce. Because their § 924(c) convictions must be vacated regardless, we
need not decide whether the Government sufficiently proved the necessary interstate-commerce nexus for
conspiracy to commit Hobbs Act robbery.
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conspiracy. Appreciating, however, that the testimony might also be construed to implicate
Ledbetter’s attorney in wrongdoing, the court instructed the jury
to disregard that portion of Mr. Williams’ testimony wherein he testified that
[Ledbetter’s counsel] had questioned him like a detective. I’m excluding that
because I find that that testimony is more prejudicial to the defendants than
probative . . . of any of the issues in this case under the applicable federal laws
under which this case is being tried. I will further advise the jury that you are not
to infer from the fact that [Ledbetter’s counsel] spoke with Mr. Williams that
[Ledbetter’s counsel], himself, was either a co-conspirator or was acting in
furtherance of any conspiracy. Finally, I will advise you that, as lawyers, we are
required, in interviewing clients or p[ro]spective clients, to ask probing questions,
and sometimes challenging questions, in properly discharging our responsibilities
of zealous representation. And those probing questions can often appear to be
detective-like in nature, because you’re trying to probe to make sure that your
client’s rendition of the facts makes sense and would withstand scrutiny.
The second incident happened the following day, during cross-examination of Anthony
Jones, another cooperating codefendant. In an attempt to discredit Jones’s damning testimony,
Ledbetter’s attorney cross-examined Jones about his plea deal and also elicited a concession that
Jones had lied to the grand jury about some details. Ledbetter’s attorney punctuated his line of
questioning by asking, “There’s no reason any reasonable person would believe a word that you
say, correct?” Presumably upset, Jones responded, “Would they believe if I say that you gave
information that probably got Crystal [Fyffe] murdered?” Harris’s counsel objected
immediately, and at sidebar everyone agreed that Jones’s testimony was improper. Back before
the jury, the court struck Jones’s testimony as unresponsive and instructed the jury “to disregard
the previous answer as it has no basis in fact or otherwise.” At the end of Jones’s testimony, the
court reaffirmed its prior instruction:
Ladies and gentlemen, before we bring in the next witness, I want to reiterate to
you, after Mr. Jones’s testimony, that you are to completely disregard the answer
that he gave to [Ledbetter’s counsel] about some information somehow being
related to Ms. Fyffe’s murder. I want to emphasize to the court that [Ledbetter’s
counsel] has never, in this Court’s opinion and the evidentiary record will reflect,
engaged in improper conduct and that any inference to that effect that was created
by Mr. Jones’s testimony must be completely disregarded by you as a matter of
law.
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The following morning, the court orally denied defendants’ motions for a mistrial. The
court found that any prejudicial comments about Ledbetter’s attorney were isolated and unlikely
to mislead the jury; that there was no evidence of bad faith by the Government; that the strength
of the evidence against defendants was substantial; and that the limiting instructions cured any
risk that defendants’ rights were impaired.
Although both statements were improper, defendants have not shown that the testimony
was so clearly prejudicial that any risk of harm was not cured by the court’s thorough limiting
instructions. To determine whether improper testimony causes incurable prejudice, the court
considers five factors: “(1) whether the remark was unsolicited, (2) whether the government’s
line of questioning was reasonable, (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 against the defendant.” Zuern v. Tate, 336 F.3d
478, 485 (6th Cir. 2003).
For both improper statements, all five factors weigh against a mistrial. First, both
remarks were unsolicited. Second, Jones’s improper testimony came out on cross-examination
by defense counsel (not direct by the Government), and the court reasonably found that the
Government’s questions to Williams about his interactions with Ledbetter’s counsel were
relevant (and thus reasonable). Third, the court immediately instructed the jury to disregard both
statements and later reiterated those instructions in clear and forceful language. These
instructions were especially curative because the court not only told the jury to disregard the
evidence but explained that the stray comments had no basis in fact. Fourth, the court found no
evidence of bad faith by the Government, and defendants have offered none. Fifth, defendants
give no reason to disregard the court’s finding that the statements were isolated and thus unlikely
to cause prejudice in light of the substantial evidence of guilt adduced over two months of trial.
In sum, defendants have not shown that the improper statements were so clearly
prejudicial that any risk of harm was not cured by the district court’s forceful limiting
instructions.
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H. Liston’s Tattoos
Liston claims that the district court abused its discretion in admitting photos of his
“plainly visible” tattoos and not ordering a mistrial after the Government misstated in closing
that Liston has a Homicide Squad tattoo on his chest, which he does not. Neither claim requires
reversal. The district court was well within its discretion to admit the photos and cured any risk
of prejudice from the Government’s mistake by issuing an appropriate limiting instruction.
Plainly Visible Tattoos. The district court did not abuse its discretion in allowing the
Government to introduce six photos depicting gang-related tattoos on Liston’s face, hands, and
arms. Liston’s sole argument is that these photos were unfairly prejudicial—in other words, that
their risk of prejudice substantially outweighed their probative value under Federal Rule of
Evidence 403. This is, by its nature, a tough argument to win on appeal because the district court
has “very broad discretion” in balancing prejudice and probative value. See United States v.
Mack, 258 F.3d 548, 555 (6th Cir. 2001). Here, the argument fails at the outset because the
tattoos were directly relevant to a central issue in the case—Liston’s membership in the Short
North Posse and its Homicide Squad subsidiary. Liston’s tattoos included commemorative
markings with the letters “R.I.P” and nicknames of deceased Short North Posse members, along
with a verse that began, “Homicide part one.” We have held that gang tattoos “may be highly
probative of an individual’s membership in a particular gang” and thus are properly admissible
“in cases where the interrelationship between people is a central issue,” such as where a RICO
conspiracy is alleged. See United States v. Rios, 830 F.3d 403, 421 (6th Cir. 2016).
Liston relies on United States v. Newsom for the contention that gang-related tattoo
evidence is unfairly prejudicial when it suggests a hostile, criminal disposition. 452 F.3d 593,
603–04 (6th Cir. 2006). But Liston misreads Newsom to suggest that gang tattoos are necessarily
unfairly prejudicial. That cannot be right. Rule 403 calls for a balancing, and in Newsom, a gun
possession case, we held that the defendant’s gang tattoos “were simply not probative” of the
only issue in the case—whether he possessed the gun. See id. at 603. That violent gang tattoos
were unfairly prejudicial where they had no probative value says nothing about the appropriate
balancing in this case, where the tattoos had strong probative value on a key issue.
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Government’s Misstatement. Liston is correct that the Government in closing misstated
that Liston “has homicide for the cash tattooed on his chest,” but incorrect to suggest that the
court’s curative instruction did not remedy any risk of prejudice. At sidebar following defense
counsel’s objection to the misstatement, the Government asserted confidently that its first
witness, Allen Wright, testified about Liston’s chest tattoo; defense counsel disagreed. In fact,
the Government was mistaken: Wright testified that Liston’s older brother, not Liston, had a
“homicide” tattoo on his chest. But because the court was unsure of the testimony and thus loath
to instruct the jury one way or the other, it charted a middle path:
Ladies and gentlemen, as I previously admonished you, you are to rely on your
combined, collective memories, as I advised both [the prosecutor] and [defense
counsel] at side-bar. They’re both officers of the court and they heard what they
both believe they heard. I don’t have a transcript with me, but I do rely on your
collective memories to separate the wheat from the chaff.
Liston’s counsel did not object to this instruction.
Liston has not shown that the Government’s misstatement sank to the sort of
prosecutorial misconduct that would warrant a new trial. When the prosecution misstates
material evidence, courts generally consider four factors in deciding whether the impropriety was
so flagrant that it requires reversal: (1) whether the remarks tended to mislead the jury or
prejudice the defendant, (2) whether the remarks were isolated or extensive, (3) whether the
remarks were deliberately or accidentally made, and (4) whether the evidence against the
defendant was strong. See United States v. Carter, 236 F.3d 777, 783 (6th Cir. 2001). Here, at
least three of the four factors lean strongly in the Government’s favor: the remark was both
isolated and accidental (the court found as much and Liston does not argue otherwise), the
evidence against Liston was strong (two people had testified directly that Liston was a member
of the Homicide Squad), and several witnesses testified about his participation in two charged
murders on behalf of the gang. See id. at 783. As for any tendency to mislead the jury or
prejudice Liston, the court’s instruction cured or at least minimized any damage. This court
“[o]rdinarily . . . should not overturn a criminal conviction on the basis of a prosecutor’s
comments alone, especially where the district court has given the jury an instruction that may
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cure the error.” See id. at 787. Liston’s mere assertion that the Government’s misstatement was
harmful to the point of substantial prejudice does not make it so.
I. Ineffective Assistance of Counsel
Ledbetter alone maintains that his counsel was constitutionally ineffective, but generally
“a defendant may not raise ineffective assistance of counsel claims on direct appeal, since there
has not been an opportunity to develop and include in the record evidence bearing on the merits
of the allegations.” See United States v. Martinez, 430 F.3d 317, 338 (6th Cir. 2005). Ledbetter
insists that because this was a “massive, months[’] long, complicated trial with over 100
witnesses and an enormous record,” the record must be adequate to assess the merits of his
claim. But a long and complicated trial record cuts the other way entirely. Thus, we decline to
hear Ledbetter’s claim of ineffective assistance of counsel on this direct appeal.
J. Unanimity of Verdict
Harris, Liston, and Ussury were each convicted on at least one count of murder in aid of
racketeering, which, again, requires that the murder was committed either as consideration for
anything of pecuniary value from a racketeering enterprise or to gain entrance to or maintain or
increase position in a racketeering enterprise. 18 U.S.C. § 1959(a). Due process requires that a
federal jury “unanimously find[] that the Government has proved each element” of a crime,
Richardson v. United States, 526 U.S. 813, 817 (1999), which the parties understand to mean
that, for each conviction, the jury’s verdict had to be unanimous as to which purpose was proven.
The district court agreed and instructed the jury that “[t]he government need only prove that the
[murder in aid of racketeering] was committed by the defendant for either one of two stated
purposes, but your verdict must be unanimous as to which purpose.”
The defendants were satisfied with that instruction below but now argue that due process
required that the jury specify on a special verdict form which motive they unanimously found.
Otherwise, defendants postulate, the jury may not have unanimously found one statutory
purpose. Defendants fail, however, to cite a single case suggesting that a special verdict form is
required in these circumstances. Because their claim is reviewed only for plain error, that failing
is fatal.
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The one case that defendants do point to, United States v. Dale, 178 F.3d 429 (6th Cir.
1999), is distinguishable. Dale was convicted by general verdict of conspiracy to distribute
drugs. Id. at 430. The government’s theory was that Dale distributed both cocaine and
marijuana, but the jury needed to find only that he distributed at least one of the two. As here,
the jury had to find unanimously which drug (or drugs) Dale conspired to distribute. The jury
returned a general guilty verdict, which did not specify whether the jury based its conviction on
Dale’s distribution of cocaine or marijuana. See id. at 431. The district court then took it upon
itself to find that Dale conspired to distribute cocaine and sentenced Dale above what would
have been the statutory maximum for a marijuana-based conviction. We held that it was plain
error to sentence Dale beyond the marijuana-based statutory maximum when it was impossible
to know, without a special verdict, whether the jury found Dale guilty of conspiring to distribute
marijuana or cocaine. See id. at 434. The Dale court relied by negative inference on language in
Edwards v. United States, 523 U.S. 511 (1998), indicating that Edwards would have come out
differently if “the sentences imposed exceeded the maximum that the statutes permit for a
cocaine-only [as opposed to crack] conspiracy.”
The difference between Dale and Edwards marks the rule: a special verdict is required
when a finding of one alternative element over another is used to enhance a sentence beyond
what would otherwise be the statutory maximum. This makes sense when the district court must
determine which of two facts the jury found in order to determine the maximum sentence. That
is not the case where, as here, it makes no sentencing difference which statutory purpose the jury
found. Accordingly, the district court did not err.
K. Cumulative Error
Ledbetter and Liston argue cursorily that the cumulative effect of the trial errors they
allege rendered the trial fundamentally unfair, even if each error alone would have been
harmless. But neither has shown an error, and the “accumulation of non-errors” does not amount
to reversible cumulative error. See United States v. Underwood, 859 F.3d 386, 394 (6th Cir.
2017). Thus, their claim of cumulative error fails for want of error.
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L. Sentencing of Ledbetter
Ledbetter also challenges his sentence. First, he argues that he was convicted of multiple
crimes and sentenced to multiple punishments for the same conduct, in violation of the Double
Jeopardy Clause. Ledbetter was convicted of multiple crimes for each of the three murders he
committed.2 But he concedes that “applying the Blockburger test, these various counts do have
elements not contained in the other.” Thus, under Blockburger v. United States, 284 U.S. 299
(1932), these offenses are different and Ledbetter can be punished for all of them without
offending the Double Jeopardy Clause.
Ledbetter tries to wriggle out from under Blockburger with the help of Rashad v. Burt, in
which this court acknowledged that the Blockburger test is not applicable to successive
prosecutions. 108 F.3d 677, 679 (6th Cir. 1997). But Rashad specifically relied upon the
distinction between successive prosecutions for conduct that may constitute the same “act or
transaction” and cases (like Ledbetter’s) not involving successive prosecutions where the
concern is “multiple charges under separate statutes,” id. at 679, and where Blockburger applies.
The holding of Rashad, moreover, has repeatedly been limited by this court to the particular facts
of that case. See United States v. Farah, 766 F.3d 599, 607 (6th Cir. 2014); Murr v. United
States, 200 F.3d 895, 901 (6th Cir. 2000); United States v. Forman, 180 F.3d 766, 769–70 (6th
Cir. 1999).
Second, Ledbetter contends that the district court erred in applying the leadership
enhancement to his sentence under the Sentencing Guidelines. U.S.S.G. § 3B1.1. The court’s
application of that enhancement warrants deference, see United States v. Washington, 715 F.3d
975, 983–84 (6th Cir. 2013), and Ledbetter’s only argument is to note his disagreement with the
jury’s verdict on the underlying charges. There is no basis to hold that the district court
misapplied the enhancement.
2Ledbetter was convicted of murder in aid of racketeering, 18 U.S.C. § 1959(a)(1), and murder
through use of a firearm in relation to a drug-trafficking crime, 18 U.S.C. § 924(c), (j), for the murders of
Rodriccos Williams and Marschell Brumfield; and for murder in aid of racketeering, conspiracy to
murder a witness, 18 U.S.C. § 1512, and use of a firearm in relation to a crime of violence, 18 U.S.C.
§ 924(c), (j), for the murder of Chrystal Fyffe.
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III.
For these reasons, we vacate Ussury’s conviction and sentence on count eleven, for the
murder of Dante Hill in aid of racketeering, 18 U.S.C. § 1959(a)(1), and Harris’s and Robinson’s
convictions and sentences on count six, for the murder of Donathan Moon through use of a
firearm during and in relation to a crime of violence, § 924(c), (j)(1). We remand those three
defendants’ cases solely for entry of judgment and consideration of whether resentencing on
their remaining convictions is necessary. We affirm the remaining convictions and sentences.