United States v. Upshaw , 114 F. App'x 692 ( 2004 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 04a0089n.06
Filed: November 16, 2004
Nos. 02-1409/1428
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
IRVIN LAMONT UPSHAW and RODNEY ) EASTERN DISTRICT OF MICHIGAN
RICE, )
)
Defendants-Appellants. )
Before: BATCHELDER, GIBBONS, and COOK, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. Defendants-appellants Irvin Lamont Upshaw
and Rodney Rice are former police officers of the fifth precinct of the Detroit Police Department.
On April 27, 2001, Upshaw and Rice were each convicted by a jury of various offenses, including
substantive and conspiracy RICO offenses. The gravamen of their offenses was that they abused
their positions as law enforcement officers for personal gain and, in doing so, violated the rights of
others. The district court sentenced Upshaw to incarceration for 240 months and Rice to
incarceration for 210 months. On appeal, Upshaw and Rice challenge their convictions and their
sentences.
I.
At trial, Upshaw and Rice were implicated in numerous criminal incidents. Those relevant
to this appeal are recounted separately here.
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A. Canfield Market
Mike Darwich owned the Canfield Market, a convenience store in Detroit’s fifth precinct
from which he sold marijuana in addition to legitimate items. Darwich stood behind a counter
protected by plexiglass located near the entrance of the store and completed marijuana sales through
a slot in the plexiglass. Sometimes marijuana sales were made in the back of the store as well. The
enclosed area behind the counter was accessible only through a door that Darwich kept locked.
Officers Rice and Upshaw were in the store frequently and were seen behind the plexiglass on
occasion. Marijuana sales were completed even when these officers were in the store and in
uniform. Several employees at the Canfield Market testified that Darwich asked them if he should
pay police officers for protection.
In addition to selling marijuana from the Canfield Market, Darwich also supplied marijuana
to dealers for sale on the street. These dealers either paid for the marijuana, or Darwich “fronted”
them the drugs by giving them marijuana without initially charging them in exchange for a portion
of the proceeds from their sales, which was always greater than the usual cash price at which
Darwich sold the marijuana. One dealer testified that Darwich guaranteed him that the police would
not interfere with the dealer’s sales: “[H]e told me as long as, as long as I was down with him, . . .
me and my nephews, we didn’t have to worry about the police and going to jail or nothing like that.”
Witnesses implicated both Officers Upshaw and Rice as being involved in illicit transactions
with Darwich. An employee of the Canfield Market testified that he once saw Upshaw accept
money from Darwich. On another occasion, Upshaw gave Darwich a grocery bag containing a
sizeable amount of marijuana in exchange for a grocery bag with undisclosed contents.
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Rice’s most suspect behavior occurred in conjunction with the execution of a search warrant
at the Canfield Market. At approximately 6:00 p.m. on January 21, 1999, deputies with the Wayne
County Sheriff’s Department and law enforcement agents from other jurisdictions, including United
States Marshals, executed a search warrant at the convenience store. During the execution of the
warrant, the store’s phone rang. Robert Pierce, an investigator with the Narcotics Enforcement Unit,
answered the phone and assumed Darwich’s identity. The man placing the call said, “Are you all
right, Mike? We’re coming.” Pierce heard a siren in the background. The caller then said that “we
got an alarm,” to which Pierce replied, “Everything’s all right,” and then hung up. Shortly
thereafter, Officer David Dibiasi and Officer Rice arrived at the Canfield Market in a Detroit Police
car. Officers Dibiasi and Rice were not involved with the execution of the search warrant. Pierce
spoke with Officer Rice, who acknowledged that he placed the phone call to the Canfield Market.
Pierce also noted that the number on Officer Rice’s police cruiser was 983562.
While the search warrant was being executed at the store, Deputy United States Marshal
Diane Mack conducted surveillance of Darwich’s home in an unmarked car with a sergeant from
the Detroit Police Department. During the course of her surveillance, Mack witnessed a marked
Detroit Police car pull up to Darwich’s home: “The car approached, slowed down to just a slow-
moving thing and flashed a light on the Darwich home.” Although Mack could not identify who was
in the police car, she noted the number on the car – 983562. After the car shone the light on
Darwich’s home, it drove away. Mack decided to follow the car in her unmarked vehicle to identify
the passengers, but she was unsuccessful because the police car evaded her.
B. Kenyea Blackshear
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During the summer of 1997, Kenyea Blackshear lived with Jeron Johnson at a home located
at 5976 Bewick (“5976”) from which he sold marijuana. Johnson testified that, in June 1997,
Upshaw visited 5976 looking for Blackshear. At that time, Johnson and O’Shae Martin were in the
residence. The front door was open, but a steel security gate protecting the front door was closed.
When Upshaw arrived at 5976, he pointed a gun at Johnson and Martin, who could see Upshaw
through the bars of the security gate. Upshaw demanded that Johnson and Martin approach the door,
and they complied. When they reached the door, Upshaw handcuffed them to the security gate and
began asking for keys to the gate. Although Upshaw was in plain clothes, Johnson recognized him
as a police officer because Johnson saw a badge, which displayed Upshaw’s name, hanging around
his neck. Johnson testified that Upshaw next “asked where the keys were. He also asked me where
was the marijuana. . . . He asked me where was [Blackshear].” Johnson then noticed another officer
in the front lawn, who proceeded to the back of the house, where he found an entrance. Johnson
noticed the name on that officer’s badge was Goode. Goode searched the house and found keys to
the security gate, at which point he unlocked the gate and allowed Upshaw to enter. Goode then
proceeded to search the residence while Upshaw questioned Johnson and Martin. According to
Johnson, Goode discovered a large bag of marijuana, large amounts of money, a stick of dynamite,
a .380 handgun, and an AK-47 firearm.
Upshaw told Johnson, “[Y]ou know that I can take your ass to jail for this gun and this
marijuana. But I’m not, because you’re making money on my shit anyway.” Upshaw next uncuffed
Martin and Johnson. Martin was allowed to leave, but Johnson was told to remain. Upshaw began
asking Johnson about Blackshear. Eventually, Upshaw asked Johnson to deliver Blackshear a
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message: “[W]e know you know who he is and when you see him . . . tell him we’re going to fuck
him up.” Upshaw then hit Johnson with a flashlight, and he and Goode left Johnson locked in an
upstairs room. Eventually, Blackshear and Martin discovered Johnson.
On July 24, 1997, Carl Terry was riding in an automobile with Blackshear1 and Eric Lackey.
Blackshear was driving. At one point, Blackshear noticed a police patrol car. Terry testified that
Blackshear told Terry and Lackey to “look straight ahead because that’s Upshaw and Rice and I
ain’t paid them.” According to Terry, Blackshear “was in sort of a panic” upon seeing the police
car. The police car pulled over Blackshear’s automobile, and Blackshear rolled down the car’s
windows. Officers Upshaw and Cook, not Officer Rice, exited the police car and approached
Blackshear’s vehicle. Officer Cook approached Blackshear’s side of the vehicle, and Officer
Upshaw approached Terry’s side of the vehicle. Officer Cook asked Blackshear for his driver’s
license and then instructed him to exit the vehicle. Blackshear complied, and he and Officer Cook
went to sit in the front seat of the police car. In the meantime, Officer Upshaw began searching
Blackshear’s vehicle and eventually found a gun in the glove box. He picked up a brown paper bag
from the ground, put the gun in the bag, and placed the bag under his clothing. At that point, about
five minutes after exiting his vehicle, Blackshear returned to his car. According to Terry, he
appeared calm. The officers returned Blackshear’s driver’s license, and Blackshear and his
passengers drove off. Officer Upshaw did not return the gun, and an activity log recording the
incident did not reflect that any evidence had been seized during the stop.
1
Blackshear did not testify at trial because he was murdered prior to its commencement.
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C. Jujuan Harrison
Around March 1997, Jujuan Harrison and Eli Curry pulled up to a convenience store in
Curry’s automobile. As they exited the vehicle, a police cruiser pulled up behind them. Officer
Rice, who was in uniform, and another officer emerged from the police cruiser and summoned
Harrison and Curry. Harrison and Curry approached the cruiser, and Curry and Officer Rice began
arguing. The officers eventually handcuffed Harrison and Curry, placing Harrison in the cruiser and
Curry on the curb of the road. Officer Rice then searched Curry’s car for about five minutes, finding
a gun. After he completed the search of the car, Officer Rice released Harrison from the cruiser and
searched Harrison and Curry themselves. At one point during his search of Harrison, Officer Rice
placed him in the back seat of the cruiser and discovered approximately $450 in his pocket, which
Rice took. The officers then released Harrison and Curry without arrest or citation. The officers
did not, however, return either the gun or the confiscated money.
II.
In a first superseding indictment filed on January 13, 2000, Rice and Upshaw were each
charged in relevant part with one count of conspiracy against rights in violation of 18 U.S.C. § 241
(Count I), one count of conspiracy to distribute and to possess with intent to distribute controlled
substances in violation of 21 U.S.C. § 846 (Count II), one count of participation in a racketeer
influenced and corrupt organization (“RICO”) in violation of 18 U.S.C. § 1962(c) (Count IV), one
count of conspiring to participate in a racketeer influenced and corrupt organization in violation of
18 U.S.C. § 1962(d) (Count V), and one count of conspiracy to commit extortion in violation of 18
U.S.C. § 1951 (Count VI). In support of the charges of participation in a racketeer influenced and
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corrupt organization, the indictment asserted that Rice and Upshaw participated in a pattern of
racketeering activity involving numerous violations of federal and state criminal law. Specifically,
the superseding indictment charged that Rice participated in sixteen predicate racketeering acts and
that Upshaw participated in nine predicate racketeering acts.
A. Convictions
Ultimately, on April 27, 2001, Rice and Upshaw were each convicted by a jury of Counts
I, II, IV, V, and VI in the United States District Court for the Eastern District of Michigan. Rice’s
and Upshaw’s RICO convictions were premised on the jury’s finding that each participated in three
racketeering acts constituting a pattern of racketeering. The jury found in a special verdict that each
had conspired with Darwich and others to possess with intent to distribute and to distribute
controlled substances in violation of 21 U.S.C. §§ 841 and 846 (Racketeering Act 18A). The jury
also found that Rice and Upshaw conspired with each other and others to extort protection money
from Darwich in violation of 21 U.S.C. § 1951 (Racketeering Act 18B).
The jury found that Rice individually also robbed Harrison of approximately $400 in
violation of Mich. Comp. Laws § 750.529 (Racketeering Act 12). The third racketeering act the jury
found that Upshaw had committed was a robbery of a .32 caliber firearm from Blackshear, also in
violation of Mich. Comp. Laws § 750.529 (Racketeering Act 14).
B. Sentencing
Defendants’ cases then proceeded to sentencing. The district court determined that, in
evaluating underlying racketeering activity to score the base offense level for Upshaw’s and Rice’s
convictions for conspiracy to violate RICO (Count V) in accordance with United States Sentencing
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Guidelines (“U.S.S.G.”) § 2E1.1,2 Upshaw committed seven underlying racketeering acts in
furtherance of a RICO conspiracy in addition to those found by the jury in its special verdict under
the substantive RICO count, including robbing Johnson and Martin at 5976 on June 12, 1997. As
for Rice, the court determined that he committed an additional fifteen underlying racketeering acts
in support of his conviction for conspiracy to violate RICO.
Because Upshaw and Rice were each convicted of multiple counts, the district court grouped
together the counts involving substantially the same harm in accordance with U.S.S.G. § 3D1.1-.2.
The district court then determined the offense level applicable to each group pursuant to U.S.S.G.
§ 3D1.3.
The highest offense level for any of Upshaw’s groups was 30, which the court adopted as
the combined offense level. The court enhanced this combined offense level by 5 under U.S.S.G.
§ 3D1.4 because the other groupings yielded a total of 8 ½ units, and then again by 2 under U.S.S.G.
§ 3C1.1 on the basis of a finding that Upshaw committed perjury at trial, yielding a final combined
offense level of 37. With a criminal history category I, Upshaw was subject to 210 to 262 months
incarceration. U.S.S.G. § 5, Pt. A. In addition to supervised release and a criminal monetary
penalty, the district court sentenced him to the statutory maximum of 120 months incarceration on
Count I and 240 months on each of Counts II, IV, V, and VI, to be served concurrently.3
2
This court recently ruled that the United States Sentencing Guidelines continue to be valid
in the Sixth Circuit, even after Blakely v. Washington, 124 S. Ct. 2531 (2004). See United States
v. Koch, No. 02-6278, 2004 U.S. App. LEXIS 18138, at *2 (6th Cir. Aug. 26, 2004).
3
Ordinarily, “the total punishment is to be imposed on each count and the sentences on all
counts are to be imposed to run concurrently.” U.S.S.G. § 5G1.2, cmt. 1. However, the maximum
sentence for conspiracy against rights, Count I, is 120 months. See 18 U.S.C. § 241. Hence, the
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As for Rice, the highest offense level for any group was 30. The court enhanced the
combined offense level by 5 under U.S.S.G. § 3D1.4, because the offense levels for the various
groups yielded a total of 13 ½ units, resulting in a combined offense level of 35. At criminal history
category I, Rice was therefore subject to 168 to 210 months incarceration. U.S.S.G. § 5, Pt. A.
Coupled with supervised release and a criminal monetary penalty, the district court sentenced Rice
to the statutory maximum of 120 months incarceration on Count I and 210 months on each of Counts
II, IV, V, and VI, to be served concurrently.
The district court entered separate judgments of conviction and sentence against Rice and
Upshaw on March 26, 2002. Both defendants filed timely notices of appeal. For the following
reasons, we affirm defendants’ convictions and sentences.
III.
A. RICO Convictions
According to 18 U.S.C. § 1962(c), “[i]t shall be unlawful for any person employed by or
associated with any enterprise engaged in, or the activities of which affect, interstate or foreign
commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs
through a pattern of racketeering activity or collection of unlawful debt.” A pattern of racketeering
activity consists of “at least two acts of racketeering activity . . . the last of which occurred within
ten years . . . after the commission of a prior act of racketeering activity.” Id. § 1961(5). The acts
that constitute “racketeering activity” are numerous but include state law robbery felonies, acts
sentence on that count was limited to that maximum and could equal the total punishment. See
U.S.S.G. § 5G1.1(a).
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involving controlled substances, and the federal crime of extortion proscribed by 18 U.S.C. § 1951.
See id. § 1961(1)(A) & (B). Both Rice and Upshaw were convicted of one count of racketeering in
violation of § 1962(c) and one count of conspiracy to commit racketeering in violation of § 1962(d),
and each challenge their respective convictions for these offenses on numerous grounds.
1. Sufficiency of Evidence
a. Upshaw
In a special verdict, the jury found that Upshaw committed Racketeering Act 14, an armed
robbery of Blackshear in violation of Mich. Comp. Laws § 750.529. In a motion filed with the
district court for a judgment of acquittal as to his substantive RICO conviction pursuant to Fed. R.
Crim. P. 29(c), Upshaw argued that the jury’s determination that he committed Racketeering Act
14 was not supported by sufficient evidence. The district court found that there was sufficient
evidence to support the determination and therefore denied Upshaw’s motion, which Upshaw
appeals.4
This court reviews the denial of a motion for a judgment of acquittal under Fed. R. Crim. P.
29(c) de novo. United States v. Al-Zubaidy, 283 F.3d 804, 808 (6th Cir. 2002). The district court’s
denial must be affirmed if we determine, “after reviewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of the crime
4
Even if there is not sufficient evidence to support the jury’s finding that Upshaw committed
Racketeering Act 14, this error would not warrant reversal of Upshaw’s substantive RICO
conviction since the jury found beyond a reasonable doubt that Upshaw committed two other
predicate acts, specifically Racketeering Acts 18A and 18B. However, since Upshaw’s argument
regarding the sufficiency of the evidence with respect to the robbery of Blackshear relates to a
sentencing claim presented by Upshaw, we address the substance of Upshaw’s argument.
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beyond a reasonable doubt.” United States v. Turner, 272 F.3d 380, 383 (6th Cir. 2001) (quotation
omitted). In reviewing the sufficiency of the evidence in support of Upshaw’s conviction for
Racketeering Act 14, we are mindful that a jury’s determination may be supported by sufficient
evidence “even though the circumstantial evidence does not remove every reasonable hypothesis
except that of guilt.” United States v. Jones, 102 F.3d 804, 807 (6th Cir. 1996) (quotations omitted).
Findings of fact made in conjunction with the denial of a Rule 29(c) motion are reviewed only for
clear error. Al-Zubaidy, 283 F.3d at 808.
The elements of armed robbery under Mich. Comp. Laws § 750.529 are: “(1) an assault, (2)
a felonious taking of property from the victim’s presence or person, and (3) a perpetrator armed with
a weapon.” People v. Harding, 506 N.W.2d 482, 500 (Mich. 1993). An assault “is made out from
either an attempt to commit a battery or an unlawful act which places another in reasonable
apprehension of receiving an immediate battery.” People v. Reeves, 580 N.W.2d 433, 435 (Mich.
1998) (quotation omitted). Additionally, the “assault or putting in fear underlying the robbery must
occur before or contemporaneously with the felonious taking.” People v. Randolph, 648 N.W.2d
164, 174 (Mich. 2002). As for the requirement that the property be taken in the victim’s presence,
“[a] thing is in the presence of a person, in respect to robbery, which is within his reach, inspection,
observation or control, that he could, if not overcome by violence or prevented by fear, retain his
possession of it.” People v. Raper, 563 N.W.2d 709, 712 (Mich. Ct. App. 1997) (quotation omitted).
Upshaw first argues that the evidence presented at trial was insufficient to demonstrate that
he committed assault in conjunction with the taking of the gun. The issue, then, is whether the
evidence supports a finding that Officer Upshaw attempted to commit a battery or committed an
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unlawful act that placed Blackshear in reasonable apprehension of an immediate battery prior to
taking the gun.
A reasonable juror could have concluded that Upshaw committed an unlawful act by
stopping Blackshear. A temporary stop and detention of a vehicle and its passengers can constitute
an unlawful act in violation of the Fourth Amendment if the stop is unreasonable under the
circumstances. See United States v. Copeland, 321 F.3d 582, 592 (6th Cir. 2003). Generally, a stop
is unreasonable if the police do not have probable cause for believing that a traffic violation has
occurred. See id. Whether an officer had probable cause to stop a vehicle depends on what the
officer knew at the time of the stop, not what he discovers after the stop. See United States v.
Bradshaw, 102 F.3d 204, 210 (6th Cir. 1996). In an activity log, Officer Upshaw stated that he
stopped Blackshear for a seatbelt violation but only warned him of the violation. However, Terry
testified that he never heard Officer Upshaw or Officer Cook mention seat belts during the stop and
confirmed that no citation was issued. A reasonable juror could conclude from this evidence that
Officer Upshaw did not have probable cause to believe Blackshear or his passengers were not
wearing seatbelts at the time of the stop and that Upshaw developed this justification after the stop.
In other words, a reasonable juror could have concluded that the stop was unlawful because it was
not supported by probable cause at the time it was made.
A reasonable juror also could have concluded that this act created in Blackshear an
apprehension of an immediate battery. Terry testified at trial that Blackshear “was in sort of a
panic” upon seeing the police car. He also testified that Blackshear exclaimed at that point, “[L]ook
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straight ahead because that’s Upshaw and Rice and I ain’t paid them,” which suggests that
Blackshear feared some form of retribution from Upshaw.
Finally, a reasonable juror could have concluded that this apprehension was reasonable in
light of Upshaw’s prior threats. In June of 1997, Upshaw told Johnson to issue the following threat
to Blackshear: “[W]hen you see [Blackshear] . . . tell him we’re going to fuck him up.” The district
court determined that Johnson informed Blackshear of this comment, a finding which is not clearly
erroneous, particularly considering that Blackshear returned to 5976 soon after Officer Upshaw left.
A reasonable juror could have concluded that Blackshear regarded this threat as credible considering
that, according to Johnson, upon returning to 5976, Blackshear found that Johnson had been
assaulted by Officer Upshaw. A few weeks later, Officer Upshaw pulled over a car being driven by
Blackshear. Blackshear may reasonably have apprehended that the stop was the first step in
effectuating the prior threat. As the district court noted, “[a]lthough a common traffic stop, taken
alone, would not seem to a reasonable person as dangerous or threatening, when it is preceded by
specifically intimidating threats, as here, the court finds that what appears to the world as an
ordinary police-citizen encounter may be in reality, and here was, something more sinister.”
Upshaw contends that the threat issued to Blackshear via Johnson cannot constitute assault
because that threat did not create in Blackshear a fear of immediate battery. Upshaw’s argument is
misplaced. The unlawful act giving rise to the fear of immediate battery was not the threat but
Upshaw’s stop of Blackshear’s car. This act reasonably gave rise to this fear because Blackshear
was cognizant that Upshaw intended to “fuck him up” upon finding him.
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In sum, construing the evidence in a light most favorable to the government and aware of the
fact that circumstantial evidence need not remove every reasonable hypothesis except guilt, we find
a reasonable trier of fact could have found that Officer Upshaw committed an unlawful act that
placed Blackshear in reasonable apprehension of immediate battery prior to taking the gun from his
car, which constitutes assault. Reeves, 580 N.W.2d at 435.
With respect to whether Upshaw took the gun in Blackshear’s presence, Upshaw argues that
Blackshear was in the police car with Officer Cook when he actually took the gun from the glove
box and that, consequently, he did not take the gun in Blackshear’s presence. Upshaw interprets the
presence requirement of Michigan’s robbery statute too literally. Whether a taking occurs in the
presence of a person for robbery purposes “depends on the effect of violence or fear on that person’s
ability to control his possession of the [object in question] at the time of its taking.” People v.
Green, 580 N.W.2d 444, 450 (Mich. Ct. App. 1998).5 If a person loses his control over an object
as an effect of the fear of an immediate battery instilled in him by an assailant, that object has been
taken from his presence. See id.; accord Raper, 563 N.W.2d at 712-13; see also People v. Colton,
No. 203518, 1999 WL 33454004, at *1 (Mich. Ct. App. Feb. 19, 1999) (upholding armed robbery
conviction where evidence supported finding that “violence or the threat of violence was necessary
to sever” the victim’s control over the stolen object); People v. Wiley, 315 N.W.2d 540, 541 (Mich.
5
Although Green technically describes the presence requirement with respect to Michigan’s
carjacking statute, Mich. Comp. Laws § 750.529a, its discussion of the issue controls here because
Michigan courts expressly construe the presence requirement for carjacking and robbery, both armed
and unarmed, identically. See Green, 580 N.W.2d at 450; Raper, 563 N.W.2d at 712.
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Ct. App. 1981) (“There is no requirement that the [object] taken be within a victim’s presence if it
is within his control and he lost control because of the violence of, or his fear of, the defendant.”).
The case of People v. Spry, 254 N.W.2d 782 (Mich. Ct. App. 1977), is particularly
instructive for our purposes. In Spry, a woman was forcibly removed from her car by three
assailants. Id. at 783. Two of the assailants took the victim to their own car and attempted to rape
her. Id. In the meantime, the third assailant – Robert Spry – entered the victim’s car and took
money from her purse. Id. For this act, Spry was charged with unarmed robbery, to which he pled
guilty. Id. at 784. Spry, however, appealed the sufficiency of the factual basis for this plea. Id. He
argued that, since the victim was in another car with the two other assailants at the time he took
money from the purse in the victim’s car, the evidence was insufficient to show that he took the
money in the victim’s presence. See id. at 786-87. The Michigan Court of Appeals disagreed. It
found that the evidence did support such a finding because, had the victim not been forcibly
removed from her car and placed in the assailants’ car, she would have retained control over the
money. Id. at 787.
The logic of Spry applies here. The only real distinction between Spry and the case sub
judice is that the assailants in Spry removed the victim from her car by force, whereas Upshaw was
able to extract Blackshear from his car by instilling in him a fear of an immediate battery. However,
such a distinction is of no consequence since it is clear that, under Michigan law, the assault element
of robbery can be accomplished either by force or by putting the victim in fear of an immediate
battery. Reeves, 580 N.W.2d at 435. Although the gun may not have been within Blackshear’s
reach, inspection, or observation at the time it was taken, it was within his control until Officers
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Upshaw and Cook put him in fear of an immediate battery by unlawfully stopping him and removing
him from his car. In other words, construed in the light most favorable to the government, the
evidence supports a finding that Officer Upshaw took the gun in Blackshear’s presence because a
reasonable juror could have concluded that Blackshear lost control of the gun as a result of the fear
instilled in him by Officers Upshaw and Cook and that he could have maintained possession of the
gun but for this fear.
b. Rice
Rice also challenges his RICO convictions for sufficiency of the evidence. To preserve for
appeal a claim that a conviction is not supported by sufficient evidence, “a defendant must move for
judgment of acquittal during trial or within seven days after the jury is discharged pursuant to Fed.
R. Crim. P. 29.” United States v. Horry, 49 F.3d 1178, 1179 (6th Cir. 1995). If the defendant fails
to preserve the claim in the proper manner, he waives the claim and his conviction will be upheld
– notwithstanding his assertion that it is not supported by sufficient evidence – unless doing so
would result in a manifest miscarriage of justice. See United States v. Swidan, 888 F.2d 1076, 1080
(6th Cir. 1989); see also Horry, 49 F.3d at 1179 (“Absent a manifest miscarriage of justice, [a]
defendant’s failure to move for judgment of acquittal on [a] count constitutes a forfeiture of her right
to challenge the sufficiency of the evidence on this count.”). If – in an effort to preserve the claim
during trial – a defendant challenges the sufficiency of the evidence at the close of the government’s
proof but does not renew that motion at the close of all the proofs, he has waived the claim, and his
conviction will be upheld absent a manifest miscarriage of justice. United States v. Khalil, 279 F.3d
358, 368 (6th Cir. 2002). A manifest miscarriage of justice occurs where “the record is devoid of
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evidence pointing to guilt.” United States v. Price, 134 F.3d 340, 350 (6th Cir. 1998) (quotation
omitted).
Rice did not file a timely motion for a judgment of acquittal pursuant to Rule 29 following
the discharge of the jury.6 Nor did he properly preserve the claim during trial. While Rice did
challenge the sufficiency of the evidence after the close of the government’s proof, there is no
indication in the record that Rice renewed this motion after the defendants presented their proof.
Because Rice did not renew his Rule 29 motion at the close of defendants’ proof or following the
jury’s discharge, he failed to properly preserve the issue of whether the evidence is sufficient to
support his convictions. Consequently, we cannot overturn Rice’s convictions for lack of sufficient
evidence unless our failure to do so would result in a manifest miscarriage of justice.
Rice presents the following insufficiency of evidence arguments: (1) the government did not
provide evidence that Racketeering Act 18B and Count VI – each charging the same extortion
conspiracy that allegedly violated 18 U.S.C. § 1951 – would have affected interstate commerce if
actualized; (2) the government did not provide evidence that the predicate RICO acts of which
defendants were convicted were related and presented a threat of continuing racketeering activity;
(3) the government did not provide evidence that Rice conspired to distribute and to possess with
6
The jury rendered Upshaw’s and Rice’s guilty verdicts on April 27, 2001. According to
Fed. R. Crim. P. 29(c), Upshaw and Rice had seven days to file a timely motion for a judgment of
acquittal, not counting Saturdays, Sundays, and legal holidays. See Fed. R. Crim. P. 45(a). Upshaw
filed a motion for a judgment of acquittal on May 4, 2001, which was timely. Rice attempted to join
this motion for a judgment of acquittal on May 16, 2001. As correctly determined by the district
court, this attempt was untimely because it was made beyond the seven day window provided by
Fed. R. Crim. P. 29.
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intent to distribute controlled substances; and (4) the government did not provide evidence that Rice
committed Racketeering Act 12, a robbery of Harrison.
After reviewing the evidence, we find that the only challenge requiring discussion under our
extremely limited scope of review is the argument that the evidence presented at trial does not
support a finding that the extortion conspiracy charged in the indictment implicated interstate
commerce. The Hobbs Act prohibits conspiring to obstruct, delay, or affect “commerce or the
movement of any article or commodity in commerce, by . . . extortion.” 18 U.S.C. § 1951(a). For
the federal government to have jurisdiction to punish a defendant for violating this provision, it must
show that the conspiracy in question would have had at least a de minimis effect on interstate
commerce if actualized. See United States v. DiCarlantonio, 870 F.2d 1058, 1060-61 (6th Cir.
1989) (“While a substantive Hobbs Act violation requires an actual effect on interstate commerce,
a conspiracy charge requires the government to prove only that the defendants’ scheme would have
affected commerce.”); accord United States v. Turner, 272 F.3d 380, 384 (6th Cir. 2001); see also
United States v. Smith, 182 F.3d 452, 456 (6th Cir. 1999) (recognizing the continued viability of the
de minimis standard). The government need not show that the effect on interstate commerce would
have been certain but only that it would have been realistically probable. See United States v. Peete,
919 F.2d 1168, 1174 (6th Cir. 1990). As a result, Hobbs Act conspiracy convictions “have been
sustained notwithstanding the absence of an actual effect on interstate commerce.” DiCarlantonio,
870 F.2d at 1061-62.
The extortion conspiracy charged in the indictment was one by which defendants and other
police officers agreed to threaten to shut down the Canfield Market and its related drug operations
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unless Darwich paid them protection money. In other words, the conspiracy of which Rice and
Upshaw were a part proposed that police officers would facilitate drug trafficking in exchange for
money. Congress has expressly recognized that drug trafficking, even if it occurs only intrastate,
necessarily affects interstate commerce in a substantial way:
(3) A major portion of the traffic in controlled substances flows through interstate
and foreign commerce. Incidents of the traffic which are not an integral part of the
interstate or foreign flow, such as manufacture, local distribution, and possession,
nonetheless have a substantial and direct effect upon interstate commerce because–
(A) after manufacture, many controlled substances are transported in interstate
commerce,
(B) controlled substances distributed locally usually have been transported in
interstate commerce immediately before their distribution, and
(C) controlled substances possessed commonly flow through interstate commerce
immediately prior to such possession.
(4) Local distribution and possession of controlled substances contribute to swelling
the interstate traffic in such substances.
(5) Controlled substances manufactured and distributed intrastate cannot be
differentiated from controlled substances manufactured and distributed interstate.
Thus, it is not feasible to distinguish, in terms of controls, between controlled
substances manufactured and distributed interstate and controlled substances
manufactured and distributed intrastate.
(6) Federal control of the intrastate incidents of the traffic in controlled substances
is essential to the effective control of the interstate incidents of such traffic.
21 U.S.C. § 801; see also United States v. Tucker, 90 F.3d 1135, 1140 (6th Cir. 1996) (“[D]rug
trafficking is an ‘economic enterprise’ that substantially affects interstate commerce in numerous
clear ways.”). Because the extortion conspiracy of which Upshaw and Rice were a part aimed to
facilitate drug trafficking in exchange for money, that conspiracy would have had at least a de
minimis effect on interstate commerce if effectuated.7 See United States v. Villafranca, 260 F.3d
7
In focusing on the argument that the extortion facilitated Darwich’s illicit (interstate) drug
business, the government implicitly chose not to pursue the seemingly more straightforward
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374, 377-78 (5th Cir. 2001) (noting that an extortion conspiracy that facilitates narcotics trafficking
is sufficient to create an effect on interstate commerce for Hobbs Act purposes); United States v.
Box, 50 F.3d 345, 353 (5th Cir. 1995) (holding that “extortion which deplete[s] funds otherwise
available for drug trafficking obstruct[s] interstate commerce within the meaning of the Hobbs
Act”); see also United States v. Friedman, 43 Fed. Appx. 424, 427 (2d Cir. 2002) (finding that
extortion conspiracy affected interstate commerce where victims of extortion were engaged in drug
argument that the extortionate conduct affected interstate commerce simply because Darwich owned
a convenience store that was involved in interstate commerce. In other words, instead of arguing
that the extortion of Darwich itself affected interstate commerce, the government argues that the
extortion of Darwich facilitated Darwich’s drug trafficking, which in turn affected interstate
commerce. Presumably, the government chose this tack as a response to Rice’s reliance on a line
of cases suggesting that an extortion conspiracy only affects interstate commerce if there is a
realistic probability that extortion money will be paid or borrowed from the funds of a company or
business engaged in interstate commerce, and not from the victim’s personal funds. See, e.g., United
States v. Mills, 204 F.3d 669, 672 (6th Cir. 2000); United States v. Buffey, 899 F.2d 1402, 1405 (4th
Cir. 1990); United States v. Mattson, 671 F.2d 1020, 1024-25 (7th Cir. 1982).
Along the same lines, Rice also argues that the government was required to prove that the
conspiracy would have had more than a de minimis effect on interstate commerce. When an
extortion conspiracy aims at victimizing an individual rather than a business entity, the government
must show that the conspiracy would have had a substantial effect on interstate commerce rather
than merely a de minimis one. See United States v. Chance, 306 F.3d 356, 374 (6th Cir. 2002); see
also United States v. Wang, 222 F.3d 234, 237-40 (6th Cir. 2000) (explaining the requirement in the
context of analyzing whether evidence at trial was sufficient to show that the robbery of an
individual satisfied the jurisdictional element under the Hobbs Act).
In this case, the government’s argument that the extortion conspiracy affected interstate
commerce, even if it was only by nature of the link between drug trafficking and interstate
commerce, is persuasive. It is unnecessary to consider whether the extortion conspiracy aimed to
extort money from Darwich personally, a purpose that might be at odds with a finding of the
required interstate commerce effect, or from his convenience store business that was itself involved
in interstate commerce, a purpose that would clearly support the required element of effect on
interstate commerce.
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trafficking); cf. United States v. Feliciano, 223 F.3d 102, 119 (2d Cir. 2000) (stating that proof that
defendants engaged in drug trafficking can alone satisfy the jurisdictional interstate commerce
requirement of the Violent Crime in Aid of Racketeering Act because drug trafficking “is clearly
economic in nature and has been found by Congress to have a substantial effect on interstate
commerce”).
Citing United States v. Peterson, 236 F.3d 848 (7th Cir. 2001), Rice argues that the
jurisdictional interstate commerce element of an offense under the Hobbs Act must be demonstrated
with individualized proof that the act in question had, or would have had, an effect on interstate
commerce and that proof of such an effect cannot be accomplished by resorting to congressional
findings (such as those in 21 U.S.C. § 801). First, we are not bound by Peterson, a Seventh Circuit
opinion. Thomas v. Cohen, 304 F.3d 563, 579 (6th Cir. 2002). Moreover, Peterson is
distinguishable. The defendants in Peterson were charged with robbing a drug dealer in violation
of the Hobbs Act. 236 F.3d at 850-51. The government attempted to satisfy the Hobbs Act’s
jurisdictional requirement by showing that the robbery affected interstate commerce under a
“depletion of assets” theory. Id. at 854-55. Under this theory, “[t]he government presents evidence
that a business is either actively engaged in interstate commerce or customarily purchases items in
interstate commerce, and had its assets depleted by the robbery, thereby curtailing the business’[s]
potential as a purchaser of such goods.” Id. at 854. The Peterson court found that the government
failed to make this showing because it did not provide evidence that the robbery affected interstate
commerce in that there was no evidence that the victim obtained his drugs from out-of-state sources.
Id. at 854-55. The court noted that “[t]he government’s proof should have focused on the nature of
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the business robbed and how the robbery affected its operation in interstate commerce,” id. at 856
(emphasis added), and that “the Hobbs Act requires individualized proof that the robbery charged
affected interstate commerce.” Id. at 855 (emphasis added). In other words, what was crucial to the
court’s holding was that the government failed to prove that the robbery had an appreciable effect
on interstate commerce, which could have been done with evidence that the robbery diminished the
victim’s ability to purchase marijuana from out-of-state sources that he normally used.
In Peterson, the government did argue that the robbery affected interstate commerce by
diverting money from a drug trafficking operation, an operation that – as evidenced by Congress’s
findings – itself affects interstate commerce. Id. The court dismissed this argument because,
although drug trafficking itself may affect interstate commerce, it does not necessarily follow that
robbing a drug trafficking enterprise – particularly one that operates intrastate – will have an impact
on those aspects of the enterprise that do affect interstate commerce. See id. at 856. Thus, the court
reasoned, to show that a robbery of a drug trafficking enterprise had an effect on interstate
commerce, the government must offer particularized proof that the robbery interfered with the
enterprise’s participation in interstate commerce.8 Id.
In the instant case, the government showed that the extortion conspiracy implicated interstate
commerce because the conspiracy aimed to facilitate drug dealing generally, an activity that
8
Parenthetically, we note that the Peterson court’s discussion of these issues may be mere
dicta. The court noted that, “[o]n appeal, the government attempts to convert the case into one
where the government proved that the robberies substantially affected interstate commerce because
defendants robbed an interstate enterprise. Fatal to the government’s appeal is that this theory was
not presented to the jury, and thus, cannot support its verdict.” Id. at 856.
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necessarily implicates interstate commerce. A conspiracy to allow a drug trafficking operation to
continue in exchange for money would affect interstate commerce if actualized because the mere
existence of such an operation implicates interstate commerce, regardless of whether it is an
interstate or intrastate operation. The robbery in Peterson, on the other hand, did not facilitate drug
dealing. Rather, it diverted assets from drug dealing, and the government failed to show that this
diversion affected interstate commerce. Peterson does not refute the proposition that drug
trafficking necessarily implicates interstate commerce. Nor does it dissuade us from holding that
a conspiracy to perpetuate a drug trafficking operation would affect interstate commerce if realized.
Instead, it merely stands for the proposition that robbing such an operation does not necessarily
affect interstate commerce for Hobbs Act purposes and that particularized proof that a specific
robbery affected interstate commerce is necessary to satisfy the jurisdictional requirement of the Act.
Rice also contends that United States v. Turner, 272 F.3d 380 (6th Cir. 2001), and, by
implication, Chance, preclude us from relying on congressional findings to uphold his and Upshaw’s
extortion conspiracy convictions. Both Turner and Chance involved criminal acts charged under
the Hobbs Act taken against gambling operations. Turner involved the robbery of a gambling
operation, 272 F.3d at 382, and is therefore distinguishable from the case sub judice on the same
grounds as Peterson. Chance, however, is analogous to the instant case in the limited sense that it
also involved conspiracy to commit extortion under the Hobbs Act, and the defendants in that case
also argued that their convictions were not supported by evidence sufficient to show that the
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conspiracy would have affected interstate commerce. 306 F.3d at 375-78. Nonetheless, Chance is
distinguishable on one crucial point.
In Chance, the court found that the government could not meet its burden of proving that
conspiracies to extort money from illegal gambling operations affected interstate commerce under
the Hobbs Act merely by pointing to congressional findings, found at 18 U.S.C. § 1955, that certain
gambling activities have such an effect. 306 F.3d at 377-78. The court noted that, “under the Hobbs
Act, the government is required to prove beyond a reasonable doubt the interstate commerce
element,” and that “[n]o congressional findings of fact can substitute for proof on this element.” Id.
at 378.
A key distinction exists, however, between Chance and the case under review. Congress has
found that only certain forms of illegal gambling implicate interstate commerce and are therefore
subject to federal regulation. See, e.g., 18 U.S.C. § 1955(b) (criminalizing illegal gambling
businesses, which are defined as including any gambling business that “(i) is a violation of the law
of a State or political subdivision in which it is conducted; (ii) involves five or more persons who
conduct, finance, manage, supervise, direct, or own all or part of such business; and (iii) has been
or remains in substantially continuous operation for a period in excess of thirty days or has a gross
revenue of $2,000 in a single day); see also United States v. Sacco, 491 F.2d 995, 999 (9th Cir.
1974) (noting that “Congress had a rational basis for finding that the illegal gambling proscribed
by § 1955 affected interstate commerce” and discussing those findings) (emphasis added). With
respect to drug trafficking, Congress has found that all drug trafficking – regardless of whether it
is interstate or intrastate in nature – necessarily implicates interstate commerce and, therefore, that
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the federal government may, under the commerce clause, criminalize all drug trafficking, no matter
how minor. See 21 U.S.C. § 801. In other words, while only certain gambling operations have been
found by Congress to affect interstate commerce, every act of drug trafficking implicates interstate
commerce. Therefore, an extortion conspiracy that ultimately aims to facilitate drug trafficking
would also necessarily affect interstate commerce if actualized. The government meets its burden
of proving that an extortion conspiracy implicates interstate commerce under the Hobbs Act, then,
merely by proving that the conspiracy aimed to facilitate drug trafficking. Hence, in this case, the
government met this burden by providing evidence that the aim of the conspiracy of which Rice and
Upshaw were a part was to facilitate drug trafficking in exchange for money.
We thus reject all of Rice’s arguments that the evidence is insufficient to support his
convictions and conclude that no manifest miscarriage of justice results from affirming them.
2. Jury Instructions
Rice next asserts that the district court erred in instructing the jury as to the elements of
extortion, one of the predicate offenses upon which his RICO convictions are based. Rice did not
object to the instruction at trial. Hence, we review it for plain error. United States v. Jones, 108
F.3d 668, 670 (6th Cir. 1997); Fed. R. Crim. P. 52(b). For Rice to be entitled to relief, then, he must
show that the district court’s instruction was plainly erroneous and affected his substantial rights in
a manner that “seriously affected the fairness, integrity or public reputation of [the] judicial
proceedings.” See Jones, 108 F.3d at 670 (quotation omitted).
The court’s instruction on extortion was not plainly erroneous. Rice argues that the court
confused the jury when it instructed the jury as to extortion because it did not make explicit the
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distinctions between extortion under federal law and extortion under Michigan law, both of which
were charged as predicate racketeering acts.9 Before providing the extortion instruction to the jury,
the court explicitly stated that it was instructing the jury “as to the law of extortion under color of
official right,” a crime that constitutes a “violation of federal law.” Furthermore, the district court
never instructed the jury as to extortion under Michigan law, nor did the prosecution present a theory
of state law extortion to the jury, so the instruction given could not have led the jury to confuse the
elements of federal extortion with state law extortion.
In the alternative, Rice argues the court’s failure to instruct the jury as to the elements of
extortion under Michigan law was reversible error. Failing to instruct the jury as to the elements
of a state law offense alleged as one potential predicate act in support of RICO charges, when the
government did not proceed on a theory that this predicate act had been established, was not error.
Moreover, the failure to give such an instruction did not affect Rice’s substantial rights. The only
predicate extortion act the jury found Rice committed in support of his conviction for a substantive
RICO violation was a federal offense under § 1951. And, even if the jury independently based
Rice’s RICO conspiracy conviction in part on a finding that he conspired to commit state law
9
A public official commits the federal offense of extortion under 18 U.S.C. § 1951 when he
“has obtained a payment to which he was not entitled, knowing that the payment was made in return
for official acts,” and regardless of whether the public official affirmatively requested or induced
the payment in the first instance. Evans v. United States, 504 U.S. 255, 268 (1992); United States
v. Blandford, 33 F.3d 685, 694-96 (6th Cir. 1994). Extortion under Mich. Comp. Laws § 750.213,
on the other hand, requires a showing that the offender maliciously threatened the victim to induce
the payment of money or to induce the victim to commit or refrain from committing an act against
his will. See also People v. Hubbard, 552 N.W.2d 493, 505 (Mich. Ct. App. 1996) (discussing
elements of § 750.213).
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extortion, the conviction is otherwise valid because it is supported by the jury’s finding in a special
verdict that Rice actually committed three other predicate acts. See United States v. Giovanelli, 945
F.2d 479, 489 (2d Cir. 1991) (upholding conspiracy RICO conviction where special verdict form
indicated that jury found that defendants had each actually committed at least two predicate acts).
B. Fair Warning
Aside from whether the convictions are supported by substantial evidence, Upshaw and Rice
assert that their respective convictions for conspiring against rights in violation 18 U.S.C. § 241
(Count I) are independently deficient because they offend the fair warning doctrine. According to
this doctrine, a person may not be held criminally liable under a criminal statute unless “the statute,
either standing alone or as construed, made it reasonably clear at the relevant time that the
defendant’s conduct was criminal.” Untied States v. Lanier, 520 U.S. 259, 267 (1997); see also
United States v. Cross, 128 F.3d 145, 148-49 (3d Cir. 1997) (reviewing § 241 conviction with Lanier
fair warning analysis). Section 241 provides in relevant part that it is a federal offense “[i]f two or
more persons conspire to injure, oppress, threaten, or intimidate any person in any State . . . in the
free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of
the United States, or because of his having so exercised the same.” The indictment alleges in part
that defendants conspired against rights in violation of § 241 by conspiring to rob citizens on the
street while on duty. Defendants claim that it was not reasonably clear at the time of their actions
that police officers who robbed citizens deprived those citizens of their constitutional rights and,
therefore, that it was not clear that an agreement to do so constituted a conspiracy in violation of §
241.
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By stating that two or more persons may not conspire to deprive any other person of their
rights, § 241 “incorporate[s] constitutional law by reference” to identify those rights that persons
may not agree to violate. Lanier, 520 U.S. at 265. The Fourteenth Amendment provides that “[n]o
State shall . . . deprive any person of life, liberty, or property, without due process of law.” U.S.
Const., amend. XIV, § 1. It is axiomatic that state officers acting under the color of state law who
deprive other persons of property without due process violate those persons’ Fourteenth Amendment
rights. See, e.g., Lautermilch v. Findlay City Sch., 314 F.3d 271, 274 (6th Cir. 2003). Furthermore,
when a government actor acting under the color of state law specifically “seize[s] property not to
preserve evidence of wrongdoing, but to assert ownership and control over the property itself,” that
action must comply with the due process clause of the Fourteenth Amendment. See United States
v. James Daniel Good Real Prop., 510 U.S. 43, 52 (1993).
These principles make it abundantly clear that a police officer who robs a victim while on
duty acts under the color of state law to deprive a person of property without any semblance of due
process. Hence, it does not offend the fair warning doctrine to hold defendants criminally liable
under § 241 for conspiring to commit such acts.
C. Jury Issues
Both Rice and Upshaw contend that their convictions should be overturned because the
district court committed reversible error in substituting a juror. During trial, the district court noted
on several occasions that Juror #3, an African-American female, was inattentive. For example, on
April 2, 2001, during the examination of a witness the court stopped proceedings and noted that “the
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third juror from the left in the back row . . . is completely nodding off.”10 On April 9, 2001, after
charging the jury, the court stated to both parties that “[d]uring most of the Court’s principal
instructions [Juror #3’s] eyes were closed, her hands were folded on the paper in front of her and
her chin dropped to her chest in a jerking manner and then would jerk back upright again,
whereupon her eyes would open momentarily and then drift closed again and that was repeated
several times.” The same day, the court also noted: “[Juror #3] was sleeping during almost all of
my instructions this morning, almost all of them. . . . She missed at least 50 percent, if not 75
percent, of what I was saying in my instructions.”
On account of these observations, the district court conducted an in camera hearing on April
11, 2001 – after closing arguments and the issuance of preliminary instructions to the jury – to
interview Juror #3 to determine whether she would be capable of performing her duties as a juror.
At the hearing, the following exchange occurred between the court and Juror #3:
THE COURT: Yesterday you were pretty much nodding off during almost all of my
instructions, my principle [sic] instructions, those first two hours of
the morning. Was I right about that?
JUROR #3: Yeah, I had took [sic] a sinus pill.
...
THE COURT: [T]here were some times during the trial that you were . . . nodding
off a little bit; and it looked to me as though you would nod off and
then kind of wake up. . . . Am I right about that?
10
The parties do not dispute that Juror #3 was indeed “the third juror from the left in the back
row.”
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JUROR #3: I had been taking drowsy sinus pills earlier and then I finally realized
what was going on and switched and that’s why I started to wake up.
. . . [W]hen I did nod, I never went to sleep.
Juror #3 also said at one point, “I know I was dosing [sic] off.” Later in the hearing, counsel for
Upshaw joined the conversation:
COUNSEL: Were you sleeping, or were you just nodding?
JUROR #3: I never went to sleep.
...
THE COURT: But you were nodding, to the extent that you lost concentration and
you missed what was being said.
JUROR #3: I don’t believe so.
...
COUNSEL: [D]o you think you heard the instructions and heard the evidence and
could render a fair verdict in the case?
JUROR #3: I truly feel I did.
Despite Juror #3's protestations to the contrary, the district court ultimately determined, based upon
its own observations, that Juror #3 had not been sufficiently attentive during trial to deliberate.
Therefore, the court elected to replace her with an alternate.
Upshaw and Rice filed a post-conviction motion seeking a new trial on the ground that the
district court’s substitution of Juror #3 constituted reversible error. In denying the motion, the court
noted that “the court personally observed Juror #3 becoming fatigued and going to sleep (or
‘nodding off’) on a number of occasions during the trial.” The court also noted that the Juror #3's
comments during the in camera hearing at least supported the conclusion that she was inattentive
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at times during the trial. The court further noted that certain of Juror #3's representations conflicted
with the court’s own observations at trial. On the basis of its personal observations, the court denied
Upshaw’s and Rice’s motion. Upshaw and Rice now reassert their argument that the district court
committed reversible error by substituting Juror #3.
A court may “replace any jurors who are unable to perform or who are disqualified from
performing their duties” with an alternate juror. Fed. R. Crim. P. 24(c)(1). It is within a trial court’s
prerogative to substitute for reasonable cause any juror with an alternate, even without consent of
either party to the case.11 United States v. Warren, 973 F.2d 1304, 1308 (6th Cir. 1992). A trial
court’s decision to substitute one juror for another is a ground for reversal, however, when the
decision constitutes an abuse of discretion. United States v. Cantu, 229 F.3d 544, 550 (6th Cir.
2000). A trial court abuses its discretion if it replaces a juror without a reasonable cause, as such
a decision exceeds a trial judge’s authority. See id.; Fed. R. Crim. P. 24(c). If a trial court’s
decision to substitute a juror is supported by reasonable cause, reversal is warranted only when the
party challenging the substitution can clearly show that he was prejudiced by that substitution.
Warren, 973 F.2d at 1308.
In this case, the trial judge had reasonable cause to replace Juror #3. A district court’s
observations of a juror in open court are entitled to deference and may serve as the basis for
dismissal under Fed. R. Crim. P. 24(c). See United States v. Bradley, 173 F.3d 225, 230 (3d Cir.
1999); see also United States v. Carter, 433 F.2d 874, 876 (10th Cir. 1970) (finding that trial court
11
Upshaw complains that the district court impermissibly dismissed Juror #3 sua sponte.
However, as Warren demonstrates, it was within the district court’s discretion to do so.
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was not required to dismiss a juror who allegedly slept during trial where the trial court determined,
based on its own observations, that the juror did not sleep during trial); cf. United States v.
Egbuniwe, 969 F.2d 757, 761-62 (9th Cir. 1992) (finding trial court’s dismissal of a juror under Fed.
R. Crim. P. 23(b) permissible where, “[b]ased on his evaluation of the juror’s response to his
questions, the trial judge . . . concluded that the juror’s claim” of impartiality “was not truthful”);
United States v. Ruggiero, 928 F.2d 1289, 1300 (2d Cir. 1991) (finding that trial court properly
dismissed a juror under Fed. R. Crim. P. 23(b) and noting that “we would be rash indeed to second
guess the conclusion of the experienced trial judge, based in large measure upon personal
observations that cannot be captured on a paper record, that [the juror] was disabled by fear from
continuing to participate in the jury’s deliberations”). The court determined, on the basis of its own
observations at trial, that Juror #3 was grossly inattentive during its instructions to the jury and
during certain portions of witness testimony. Since gross inattentiveness during trial may constitute
reasonable cause for dismissing a juror under Fed. R. Crim. P. 24(c), see, e.g., United States v.
Warner, 690 F.2d 545, 555 (6th Cir. 1982), the district court did not abuse its discretion in
dismissing Juror #3.12
Defendants strenuously argue that Juror #3’s statements that she had not slept during trial
and that she was capable of rendering a fair verdict demonstrate that the trial court’s concerns were
unfounded and that it had no basis for which to exclude the juror. However, a trial court is not
12
Rice asserts that the district court did not have a reasonable cause for replacing Juror #3
because Juror #10 was also inattentive during trial. Whether Juror #10 was inattentive during trial
is irrelevant to whether the district court had reasonable cause for dismissing Juror #3.
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required to accept a juror’s insistence that she is capable of performing her duties; rather, a trial
court is entitled to make its own assessment of a juror’s ability to render a fair and impartial verdict.
See Egbuniwe, 969 F.2d at 762. In light of its own observations, the trial court was not persuaded
by Juror #3’s statement that she would be able to perform her duties. We defer to this determination.
Cf. Ramos v. Rogers, 170 F.3d 560, 565 (6th Cir. 1999) (“A trial court’s credibility determinations
are entitled to considerable deference.”).
Rice insists that the substitution of Juror #3 was nonetheless improper because it was based
upon that juror’s race. In support of this argument, Rice contends that Juror #10 and Juror #3 were
identically situated and, yet, the district court dismissed Juror #3 – an African-American – while it
retained Juror #10, who is white. When a court substitutes a juror on its own accord, the only
question is whether the decision was supported by a reasonable cause, even when that juror is a
racial minority.13 See United States v. McMasters, 90 F.3d 1394, 1402 (8th Cir. 1996). As
discussed, the district court’s decision to substitute Juror #3 was supported by reasonable cause and,
therefore, did not constitute an abuse of discretion.
Upshaw asserts that, even it was supported by a reasonable cause, the decision to replace
Juror #3 warrants reversal because it was clearly prejudicial. Adopting derogatory stereotypes, he
posits that the issues at trial involved interactions between persons who spoke in a manner best
13
The equal protection analysis we apply when evaluating a claim that a prosecutor utilized
a peremptory strike to exclude a juror on account of that juror’s race is inapplicable here. Cf. United
States v. Jackson, 347 F.3d 598, 604 (6th Cir. 2003) (articulating standard for evaluating a claim that
use of peremptory strikes was racially discriminatory). Even if such a standard applied here,
however, the record does not permit a finding that race discrimination motivated the district court
to excuse Juror #3.
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understood by African-Americans and that the exclusion of an African-American from the jury
therefore prejudiced his defense. Upshaw provides no evidence that the language at issue was
somehow indecipherable to non-African-American jurors or that Juror #3 specifically better
understood the language at issue at trial. Rather, he asks that the court make baseless racial
assumptions contrary to our constitutional values, and then find clear prejudice without any
foundation other than those assumptions. We reject this argument.
Defendants jointly assert that the district court erred in failing to replace Juror #10, whom
they claim was also inattentive during portions of the trial. Defendants urged the district court to
replace Juror #10, but the district court refused. In order to demonstrate that a court’s refusal to
dismiss a juror for cause constitutes reversible error, a defendant must ultimately show that the
inclusion of the juror on the jury was actually prejudicial. See United States v. Taylor, 207 F.3d 452,
454 (8th Cir. 2000); United States v. Hursh, 217 F.3d 761, 768 (9th Cir. 2000). Because defendants
make no such showing, we deny this claim.
D. Sentencing Issues
Rice and Upshaw challenge their respective sentences on several grounds.
1. Burden of Proof
Both defendants challenge the burden of proof applied by the district court in calculating the
base offense level of their respective RICO conspiracy convictions under the Sentencing Guidelines.
According to defendants, the district court erred in determining that underlying racketeering activity
need be supported only by a preponderance of the evidence rather than proven beyond a reasonable
doubt.
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Under the Sentencing Guidelines, the base offense level for a RICO conspiracy conviction
is the greater of nineteen or the offense level applicable to the underlying racketeering activity.
U.S.S.G. § 2E1.1. Section 2E1.1 does not specify what evidentiary standard the sentencing court
should apply when ascertaining the existence of underlying racketeering activity. This court
resolved the ambiguity in United States v. Corrado, 227 F.3d 528 (6th Cir. 2000). In Corrado, we
noted that a RICO conspiracy is not a multi-object conspiracy; rather, “a RICO conspiracy . . . is
considered a single object conspiracy with that object being the violation of RICO.” Id. at 541-42
(quoting United States v. Carrozza, 4 F.3d 70, 79 (1st Cir. 1993)). Consequently, “the underlying
acts of racketeering in a RICO conspiracy are not considered to be the objects of the conspiracy, but
simply conduct that is relevant to the central objective – participating in a criminal enterprise. The
existence of relevant conduct is determined at sentencing by a preponderance of the evidence.” Id.
at 542; accord United States v. Tocco, 306 F.3d 279, 286 (6th Cir. 2002); United States. v. Corrado,
304 F.3d 593, 607-08 (6th Cir. 2002). In other words, in calculating the base offense level for a
RICO conspiracy conviction under the Sentencing Guidelines, underlying racketeering activity is
relevant conduct for the purposes of the sentencing guidelines and need only be proven by a
preponderance of the evidence. The district court therefore applied the correct standard at
sentencing.
2. Drug Quantities
Upshaw and Rice also challenge the district court’s drug quantity findings at sentencing.
Such findings of fact are reviewed for clear error. United States v. Vasquez, 352 F.3d 1067, 1070
(6th Cir. 2003). A finding is clearly erroneous when, although some evidence in the record may
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support the finding, the reviewing court – after examining the entire evidence – has the definite and
firm conviction that a mistake has been made. Id. That the reviewing court would have decided the
matter differently is not alone a ground for reversal. Id. at 1070-71.
Both Upshaw and Rice challenge the district court’s finding that the conspiracies for which
they were each convicted under Count II and Count IV, Racketeering Act 18A, involved the sale of
163.29 kilograms of marijuana. When calculating drug quantities attributable to a defendant as
conduct relevant to a convicted offense under the Sentencing Guidelines, the district court’s
determination must be supported by a preponderance of the evidence. United States v. Gill, 348
F.3d 147, 151 (6th Cir. 2003).
The district court based its findings with respect to drug quantities attributable to defendants
on its determination of the amount of drugs sold from Darwich’s store between December 1996 and
May 1998, which was the duration of the conspiracies charged in Count II and Count IV,
Racketeering Act 18A. The district court found that this span of time encompassed approximately
seventy-two weeks and that witness testimony at trial supported the conclusion that Darwich sold
at least five pounds of marijuana from his store each week during this period. The court then
concluded that, at five pounds a week for seventy-two weeks, Dariwch sold at least 360 pounds of
marijuana from the store during the relevant time period, which translates into 163.29 kilograms.
The district court then ascribed to defendants’ respective conspiracy counts a base offense level of
26 based on its attribution to them of “[a]t least 100 KG but less than 400 KG of Marihuana.”
U.S.S.G. § 2D1.1(c)(7). The court added to this base offense level a 2 level enhancement for each
defendant for possession of a firearm and abuse of trust, resulting in a total offense level of 30.
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Eventually, when grouping defendants’ various convictions pursuant to U.S.S.G. § 3D1.1, the court
grouped Count II, Count IV, Count V, and Count VI together and ascribed to the group as a whole
an offense level of 30.
First, defendants claim that it was erroneous for the district court to link them to the drug
sales at Darwich’s market. The jury, however, specifically found beyond a reasonable doubt both
Upshaw and Rice guilty of Count II and Count IV, Racketeering Act 18A, which charged that they
conspired with Darwich to possess with intent to distribute and to distribute controlled substances
during the relevant time period. These convictions were supported by substantial evidence, and the
court certainly could conclude at sentencing that defendants were involved in the drug sales from
Darwich’s store. Moreover, according to U.S.S.G. § 1B1.3(a)(1)(B), the relevant conduct
attributable to these convictions includes “all reasonably foreseeable acts and omissions of others
in furtherance of the jointly undertaken criminal activity.” It was not clearly erroneous for the
district court to conclude that the quantity of drugs sold from Darwich’s market was reasonably
foreseeable to defendants as part of the conspiracies in which they participated. Second, defendants
argue that the district court’s finding as to the quantity of the drugs attributable to them was not
supported by a preponderance of the evidence. On the contrary, the district court amply described
the evidence upon which it based its findings. See also United States v. Darwich, 337 F.3d 645,
663-64 (6th Cir. 2003) (upholding a district court’s determination in a separate case of drug
quantities attributable to Darwich utilizing a similar method and similar evidence).
Finally, defendants summarily assert that the district court’s calculation of the drug quantity
attributable to them offends Apprendi v. New Jersey, 530 U.S. 466 (2000). Apprendi holds that “any
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fact that increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to jury, and proved beyond a reasonable doubt.” Id. at 490. The district court did commit
one error with respect to Apprendi. Count II alleged that defendants violated 21 U.S.C. § 846 by
conspiring to violate 21 U.S.C. § 841(a). The penalty for conspiracy under § 846 is the same as the
penalty for the substantive offense. Id. Hence, the statutory maximum applicable to defendants
under Count II is the statutory maximum of the § 841(a) offense they conspired to commit. The
statutory maximum applicable under § 841(a) in turn depends upon the quantity of drugs the jury
finds beyond a reasonable doubt to have been involved in the offense. See United States v. Page,
232 F.3d 536, 543 (6th Cir. 2003). No quantity of marijuana was specified in the indictment as to
Count II, nor did the jury make any special findings regarding quantity. When a defendant is
convicted for a violation of § 841(a) under an indictment that does not specify the quantity of
marijuana at issue and the jury does not make a specific finding as to the quantity of drugs involved,
the statutory maximum to which defendants are subject is five years pursuant to § 841(b)(1)(D). See
United States v. Graham, 275 F.3d 490, 523 (6th Cir. 2001). Therefore, the statutory maximum
applicable to defendants under Count II was five years, i.e., sixty months.
The district court violated Apprendi by sentencing Rice to 210 months and Upshaw to to 240
months on Count II – each sentence being in excess of the sixty-month statutory maximum
applicable to the count – on the basis of its findings by a preponderance of the evidence of the drug
quantity attributable to the conspiracy.14 In addition to violating Apprendi, the district court also
14
The district court did not violate Apprendi with respect to defendants’ sentences on any
other count because the court did not exceed the statutory maximum on any other count. The
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violated the Sentencing Guidelines by sentencing defendants beyond the applicable statutory
maximum for Count II. See U.S.S.G. § 5G1.2, cmt. 1 (“Usually, at least one of the counts will have
a statutory maximum adequate to permit imposition of the total punishment as the sentence on that
count. The sentence on each of the other counts will then be set at the lesser of the total punishment
and the applicable statutory maximum . . . .”); see also U.S.S.G. § 5G1.2(b) (incorporating by
reference § 5G1.1(a), which provides that, “[w]here the statutorily authorized maximum sentence
is less than the minimum of the applicable guideline range, the statutorily authorized maximum
sentence shall be the guideline sentence”). The errors, however, were harmless. While defendants’
sentences on Count II violate Apprendi, the sentences for each run concurrently with valid and
equally lengthy sentences each is serving for Counts IV, V, and VI. Therefore, the district court’s
errors as to Count II “do not add any length to the overall terms of [defendants’] imprisonment” and,
consequently, do not affect defendants’ substantial rights. See United States v. Burns, 298 F.3d 523,
544-45 (6th Cir. 2003); see also United States v. Rivera, 282 F.3d 74, 77-78 (2d Cir. 2000) (noting
that error would be harmless where sentence on one count violated Apprendi but was imposed
concurrent with a longer sentence on a second count since the improper sentence would not lengthen
defendant’s term of imprisonment).
3. Firearm Possession
statutory maximum applicable to both defendants under Counts IV and V was twenty years, i.e. 240
months. See 18 U.S.C. § 1963. The court sentenced Rice to 210 months on each count and Upshaw
to 240 months on each count. Likewise, the statutory maximum for Count VI was twenty years, i.e.
240 months. See 18 U.S.C. § 1951(a). The court sentenced Rice to 210 months and Upshaw to 240
months on this count. Finally, each defendant was sentenced to 120 months on Count I, the statutory
maximum for that count. See 18 U.S.C. § 241.
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Defendants challenge the instances where the district court, in accordance with U.S.S.G. §
2B3.1(b)(2)(C), enhanced their robbery offense levels on account of possession of a firearm.
According to defendants, these enhancements should not have been applied since police officers are
required to possess a firearm while on duty.15 A district court’s application of the Sentencing
Guidelines to facts is reviewed de novo. United States v. Gill, 348 F.3d 147, 151 (6th Cir. 2003).
The fact that a law enforcement officer is required to carry a firearm in the course of duty does not
preclude an enhancement for possession of that firearm. See United States v. Sivils, 960 F.2d 587,
596 (6th Cir. 1992). In fact, such an enhancement is particularly warranted where “the weapon was
closely linked to the very powers and office which [defendant] used to implement his felonious
activities.” Id. (quoting United States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990)). Moreover, §
2B3.1(b) provides without qualification that a robbery base offense level shall be enhanced by five
levels when a firearm was possessed during the commission of the offense. Consequently, we find
no error in the district court’s enhancements of defendants’ sentences for possession of a firearm
during the commission of a robbery.
4. Upshaw’s Obstruction of Justice Enhancement
15
Rice also argues that it was erroneous for the district court to find that he possessed a
firearm during the robbery of Harrison since Harrison never testified that Rice possessed a gun at
that time. A district court’s determination that a defendant possessed a firearm at the time of an
offense is reviewed for clear error. United States v. Clay, 346 F.3d 173, 178 (6th Cir. 2003).
Harrison testified that Rice was in uniform at the time of the incident. And Upshaw testified that
“[y]ou’re supposed to carry a weapon all the time, on or off duty.” Therefore, it was not clear error
for the district court to find by a preponderance of the evidence that Rice possessed a firearm at the
time of the Harrison incident.
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Upshaw argues that the district court erroneously applied a two-level enhancement to his
combined offense level under § 3C1.1 of the Sentencing Guidelines for obstruction of justice.
Section 3C1.1 provides that a sentencing court may increase a defendant’s offense level by two
levels
[i]f (A) the defendant willfully obstructed or impeded, or attempted to obstruct or
impede, the administration of justice during the course of the investigation,
prosecution, or sentencing of the instant offense of conviction, and (B) the
obstructive conduct related to (i) the defendant’s offense of conviction and any
relevant conduct; or (ii) a closely related offense . . . .
Commentary to § 3C1.1 notes that conduct warranting the two-level enhancement includes
“committing, suborning, or attempting to suborn perjury.” Id. cmt. n.4(b). The government must
show by a preponderance of the evidence that a defendant committed an obstructionist act under §
3C1.1 for that provision’s two level enhancement to apply to the defendant. United States v.
Dunham, 295 F.3d 605, 609 (6th Cir. 2002). A district court’s factual determination that a defendant
committed an act warranting enhancement under § 3C1.1 is reviewed for clear error, while a court’s
interpretation of the provision is reviewed de novo. United States v. Burke, 345 F.3d 416, 428 (6th
Cir. 2003).
At trial, Upshaw testified in his own defense that marijuana and drug paraphenalia found in
the basement of his home during the execution of a search warrant did not belong to him but to his
brother-in-law, who at the time of trial was deceased. (Tr. 3764-68.) The district court determined
at Upshaw’s sentencing hearing that this excuse was perjury because its falsity “was so transparent.”
The court further explained: “[U]nder a preponderance-of-the-evidence standard . . . there’s no
excuse. It was his. His fingerprint was on it. It was in his house, under his nose virtually. . . . [I]t’s
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just ludicrous to think that a veteran police officer would permit a brother-in-law to run a marijuana
distribution business from . . . the laundry room of his house. . . . It was false testimony. It was
intended to mislead the jury. It was absolutely material . . . . It was perjury, undoubtedly.” On the
basis of this finding, the district court applied the two-level enhancement provided for by § 3C1.1
to Upshaw’s base offense level.
Upshaw asserts that the district court’s determination that he committed perjury is clearly
erroneous. But he offers no persuasive argument in support of this assertion. Upshaw’s first
argument relates to Count XIII of the first superseding indictment, which charged Upshaw with
knowingly, unlawfully, and intentionally possessing with intent to distribute a quantity of marijuana
in violation of 21 U.S.C. § 841. The jury did not reach a verdict on Count XIII. According to
Upshaw, this fact demonstrates that some jurors found his testimony as to the marijuana credible.
Upshaw then seems to assert, without supporting authority, that the fact that some jurors may have
found his testimony to be credible demonstrates that the court’s contrary finding is clearly
erroneous. First, the fact that the jury did not reach a verdict on Count XIII does not demonstrate
that some jury members found Upshaw’s testimony to be credible. A myriad of explanations can
be offered for why a jury failed to reach a verdict on the count. Second, regardless of whether some
jurors who evaluated the evidence under a reasonable doubt standard found that Upshaw did not
knowingly possess with intent to distribute the marijuana at issue, Upshaw does not present a
persuasive argument for why the court’s finding under a preponderance of the evidence standard that
Upshaw’s testimony constituted perjury is clearly erroneous.
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Upshaw next argues that the district court failed to take note of § 3C1.1, Application Note
2, which states that, in making determinations about whether defendants made false statements at
trial, the court should consider that false testimony can be the product of faulty memory or confusion
rather than a deliberate attempt to mislead the court or the jury. In essence, Upshaw asserts that any
falsity in his testimony arose from confusion and was not deliberate. Yet, he provides no basis for
finding that the district court’s determination to the contrary was clearly erroneous or that his
memory actually was faulty or his testimony confused.
Upshaw’s third argument is that the district court erroneously considered extraneous
testimony. Specifically, Upshaw asserts that the court determined his testimony was false based
upon the fact that witnesses at other trials blame other people for offenses with which they are
charged. The district court’s determination was based on more than a groundless assumption.
Rather, the court noted that Upshaw was a police officer and that it was highly unlikely that he was
unaware of the presence of drugs found in his home. Finally, Upshaw notes that some of his co-
defendants testified at trial and, like him, denied wrongdoing and yet did not have their sentences
enhanced under § 3C1.1. This argument has no bearing on whether the district court’s finding with
respect to Upshaw was clearly erroneous.
5. Miscellaneous Scoring Issues
Upshaw argues that the district court should have scored his taking of the .32 caliber from
Blackshear as a larceny and not as a robbery. As discussed supra, the evidence supports a
determination that Upshaw’s taking of the .32 caliber was a robbery. Hence, the district court did
not err when it scored the taking as a robbery at sentencing.
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Upshaw also argues that, since the jury acquitted him of any robbery of Johnson and Martin,
it was error for the district court to find that he committed such an offense at sentencing as a
racketeering act underlying his conspiracy RICO conviction. The jury’s finding is inapposite since
it was required to find facts beyond a reasonable doubt, while the district court finds relevant
conduct under a preponderance of the evidence standard. The testimony of Johnson and Martin
amply supports the district court’s finding that the incident occurred, and it is clear that the actions
of Upshaw, as found by the court, constituted robbery.
Finally, Rice argues that the district court erred in scoring the Harrison incident as a robbery
and, at most, should have scored it as a theft. The jury was instructed as to the elements of robbery
and found Rice guilty beyond a reasonable doubt of robbing Harrison. Moreover, there is no
indication that the district court’s findings of fact with regard to the incident were clearly erroneous.
Nor is there any indication that the district court’s determination that Rice’s actions during the
incident constituted robbery is erroneous.
IV.
For the foregoing reasons, we affirm defendants’ convictions on all counts and their
sentences, except as to Count II. We vacate the sentence imposed as to Count II and remand the
case for entry of an amended judgment in accord with this opinion.
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