United States v. Bryan Bostick , 791 F.3d 127 ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 5, 2014 Decided June 26, 2015
Nos. 04-3074, 05-3010, 05-3011, 05-3012, 05-3013
UNITED STATES OF AMERICA,
APPELLEE
v.
BRYAN BOSTICK,
TOMMY EDELIN,
EARL EDELIN,
SHELTON MARBURY, AND
HENRY JOHNSON,
APPELLANTS
Appeals from the United States District Court
for the District of Columbia
(No. 98cr00264-01)
(No. 98cr00264-06)
(No. 98cr00264-07)
(No. 98cr00264-08)
(No. 98cr00264-16)
Tony Axam, Jr., Assistant Federal Public Defender,
Sebastian K.D. Graber, Joseph Virgilio, Jenifer Wicks, and
Ernest W. McIntosh, Jr., all appointed by the court, argued the
causes for appellants. With them on the joint briefs was A.J.
Kramer, Federal Public Defender.
2
Suzanne C. Nyland, Special Assistant U.S. Attorney,
argued the cause for appellee. With her on the brief were
Ronald C. Machen Jr., U.S. Attorney, and Elizabeth Trosman
and John P. Mannarino, Assistant U.S. Attorneys.
Before: KAVANAUGH and WILKINS, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge
KAVANAUGH.
KAVANAUGH, Circuit Judge: From 1985 to 1998,
Tommy Edelin ran a massive drug distribution organization in
Southeast Washington, D.C. The organization sold crack
cocaine and other drugs, and committed numerous murders
and other violent crimes. After an intensive law enforcement
investigation of the organization, six defendants were indicted
for violations of federal and D.C. law. After a lengthy and
complicated trial, five of those defendants – Tommy Edelin,
Earl Edelin, Bryan Bostick, Henry Johnson, and Shelton
Marbury – were convicted by a jury and sentenced to life
imprisonment. They now appeal. (The sixth defendant was
also convicted but died after trial.)
On appeal, the defendants contest their convictions by
challenging, among other things, the sufficiency of the
evidence, the jury instructions, various evidentiary rulings,
and alleged juror misconduct. We affirm the judgments of
conviction.
The defendants also challenge their sentences. They
were sentenced to life imprisonment under the mandatory
Sentencing Guidelines that were in effect before the Supreme
Court’s landmark Sixth Amendment decision in United States
v. Booker, 543 U.S. 220 (2005). Under Booker, the
3
Guidelines are now advisory. Two of the defendants (Earl
Edelin and Henry Johnson) raised Sixth Amendment
objections in the District Court. Under Booker, they are
entitled to vacatur of their sentences and resentencing under
the advisory Sentencing Guidelines. Two of the defendants
(Bryan Bostick and Shelton Marbury) did not raise the Sixth
Amendment issue in the District Court. But on plain error
review, they are still entitled to what our cases have termed a
Booker remand of the record to determine whether the District
Court would impose different sentences, more favorable to
the defendants, under the advisory Guidelines. See United
States v. Coles, 403 F.3d 764, 770 (D.C. Cir. 2005). The
sentence of the remaining defendant, Tommy Edelin, is
affirmed. Based on his conviction for continuing criminal
enterprise, which we affirm, Tommy Edelin received a
statutorily mandated life sentence, which did not depend on
the Sentencing Guidelines. Booker does not affect his
sentence, as he has expressly conceded on appeal.
In their appeal, the defendants have raised a great number
and variety of arguments. Those arguments are not amenable
to easy categorization, so we will just address them one after
the other.
I
We first provide the factual and procedural background.
Because we are reviewing a jury verdict of guilt, we recount
the evidence in the light most favorable to the Government.
In 1996, the Federal Bureau of Investigation and the D.C.
Metropolitan Police Department started a joint investigation
into the activities of Tommy Edelin’s drug distribution
organization. By that time, Tommy Edelin was leading a
large-scale drug ring that distributed massive quantities of
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crack cocaine, powder cocaine, and heroin in the Washington,
D.C., area.
During the 1980s and 1990s, Tommy Edelin purchased
large quantities of drugs from wholesale suppliers in New
York. In Washington, D.C., he provided the drugs to a group
of mid-level distributors. Those mid-level distributors in turn
sold the drugs to street-level dealers, who then sold to retail
customers primarily in the Stanton Dwellings and Congress
Park neighborhoods of Southeast Washington, D.C. Edelin
distributed drugs through a credit arrangement called
“fronting,” whereby Edelin fronted the drugs to his dealers,
who paid him only after making their sales. Edelin used his
profits to finance larger drug purchases and expand his
distribution network.
In the course of their activities, Tommy Edelin and his
associates committed numerous murders and shootings, often
during clashes with rival drug crews. Those conflicts
frequently followed a pattern: A dealer from a rival group
would rob or attack one of Edelin’s associates. Edelin would
respond by ordering his associates to kill the attacker as well
as members of the attacker’s crew. Throughout the 1990s,
several of Edelin’s distributors and dealers, including the
defendants here, participated in such violence.
Tommy Edelin’s father is Earl Edelin. Earl Edelin served
as a top lieutenant in his son’s drug distribution network. The
elder Edelin worked as a mid-level distributor, supplying his
son’s drugs to other mid-level and street-level dealers. In the
1990s, Earl Edelin worked at the Stanton Dwellings
community recreation center. He gave members of the
organization access to the recreation center, where they could
cook cocaine powder into crack, sell drugs, and store guns,
money, and drugs. He also taught his son’s associates how to
5
shoot to kill, and he provided weapons to them. Finally, Earl
Edelin warned others in the organization about planned police
raids and suspected confidential informants.
In the early 1990s, Bryan Bostick worked for Tommy
Edelin as a mid-level distributor and hitman. Although
Tommy Edelin initially declined to supply Bostick with
drugs, he changed his mind after witnessing Bostick murder
two people at a traffic light. Acting on Tommy Edelin’s
orders, Bostick also attacked several individuals in the course
of a dispute with a rival drug crew.
Like Bostick, Henry Johnson was a mid-level distributor
of crack cocaine and a hitman in Tommy Edelin’s
organization. During the 1990s, he purchased crack cocaine
from other mid-level distributors, including Earl Edelin, and
resold it to street-level dealers. In addition, Johnson
committed at least one murder during a conflict with the
Stanton Terrace Crew, a rival drug group, in 1996.
Shelton Marbury was a street-level dealer of crack
cocaine. He operated at the lowest level of Tommy Edelin’s
distribution network. He committed two murders and
participated in several shootings during the conflict with the
Stanton Terrace Crew in 1996.
In 1996, the Stanton Terrace violence caught the attention
of law enforcement and prompted the investigation into
Tommy Edelin’s organization. Two years later, Tommy
Edelin was arrested after purchasing wholesale quantities of
cocaine and heroin in a government sting operation.
Six defendants were later indicted in a 90-count
indictment that charged offenses under federal law and the
D.C. Code. The charges included conspiracy to distribute
6
narcotics in violation of 21 U.S.C. §§ 846 and 841(a)(1),
(b)(1)(A) (Count One), conspiracy to participate in a
racketeer-influenced corrupt organization in violation of 18
U.S.C. § 1962(d) (Count Three), and numerous counts of
murder, assault with intent to murder while armed, violent
crime in aid of racketeering activity, and various firearm
offenses. Tommy Edelin was also charged with engaging in a
continuing criminal enterprise in violation of 21 U.S.C.
§§ 848(a) and (b) (Count Two), unlawful use of a
communication facility (Counts 86-88), and possession with
intent to distribute one kilogram or more of heroin and five
kilograms or more of cocaine (Counts 89-90). The
prosecution’s case featured extensive testimony from many
cooperating witnesses who had been involved in Tommy
Edelin’s organization. The jury found the defendants guilty
on numerous counts. Applying the then-mandatory
Sentencing Guidelines, the District Court sentenced the
defendants to life imprisonment. One of the defendants,
Marwin Mosley, was convicted, but he died in 2006 and his
appeal was subsequently dismissed.
II
The defendants raise several sufficiency of the evidence
arguments. When considering a challenge to the sufficiency
of the evidence, we uphold a guilty verdict where, “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. Gaskins, 690 F.3d 569, 576 (D.C. Cir. 2012)
(internal quotation marks omitted). We do not distinguish
between direct and circumstantial evidence in making that
assessment. Id. at 577. The “evidence need not exclude
every reasonable hypothesis of innocence or be wholly
inconsistent with every conclusion except that of guilt.”
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United States v. Kwong-Wah, 924 F.2d 298, 302 (D.C. Cir.
1991) (internal quotation marks omitted). Under that
deferential standard of review, the evidence in this case easily
suffices to sustain the guilty verdicts.
A
Count One of the indictment alleged that the defendants
participated in a single drug conspiracy led by Tommy Edelin.
All five defendants contend that the evidence at trial showed
multiple conspiracies rather than the single drug conspiracy
charged in Count One.
Whether the evidence proved a single conspiracy “is
primarily a question of fact for the jury.” United States v.
Childress, 58 F.3d 693, 709 (D.C. Cir. 1995) (internal
quotation marks omitted). On appellate review, the relevant
question is therefore “whether there is sufficient evidence –
when viewed in the light most favorable to the government –
to support a jury finding of a single conspiracy agreed to” by
all of the defendants. Id.
The Government’s theory at trial was that Tommy Edelin
headed a single, chain-model narcotics distribution and
racketeering organization, through which he directly supplied
some mid-level dealers, such as Earl Edelin and Bryan
Bostick, and indirectly supplied other mid- and street-level
dealers, such as Henry Johnson and Shelton Marbury,
respectively. In addition to distributing drugs, Bostick,
Johnson, and Marbury carried out murders and other violent
acts in support of the conspiracy.
We consider three factors to determine whether the
evidence supports a conclusion that the defendants belonged
to a single conspiracy: whether the alleged participants had
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(1) a common goal, (2) interdependence, and (3) overlap,
“such as the presence of core participants linked to all the
defendants.” United States v. Gatling, 96 F.3d 1511, 1520
(D.C. Cir. 1996).
This sufficiency of the evidence issue is not close,
especially given our deferential standard of review. The
Government overwhelmingly established each defendant’s
membership in the single charged conspiracy. The massive
evidence regarding the defendants’ significant drug
distribution activities plainly demonstrates that they shared
the organization’s goal of selling drugs. The evidence
establishes interdependence among the participants: For
example, Marbury depended on mid-level distributors in
Tommy Edelin’s network, like Earl Edelin and Johnson.
Mid-level distributors like Earl Edelin, Johnson, and Bostick
in turn relied on other mid-level distributors in the
organization or directly on Tommy Edelin. And Tommy
Edelin relied on the others to distribute and sell the drugs.
And the evidence indicates that there were overlapping core
participants – such as Earl Edelin – with ties to defendants on
both ends of the supply chain.
We need not spend long on this point. From the
overwhelming evidence of the defendants’ common goal,
interdependence, and overlapping core of participants, a
reasonable jury could easily conclude that the defendants
were part of a single drug distribution conspiracy.
B
Even if all of the defendants belonged to a single drug
conspiracy, they say that “certain actions were outside the
chain and formed a separate conspiracy.” United States v.
Tarantino, 846 F.2d 1384, 1393 (D.C. Cir. 1988).
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First, the defendants argue that Bostick’s murder of two
people at a traffic light fell outside the scope of the charged
conspiracy. They claim that they were prejudiced by the
Government’s inflammatory presentation of those allegedly
unrelated murders.
Bostick was riding with Tommy Edelin in Edelin’s car
when Bostick spotted a vehicle that he thought belonged to
one of his rivals. With Tommy Edelin’s permission, Bostick
exited the car at a traffic light and shot the two occupants of
the other vehicle, killing both. The victims turned out to be
innocent teenage siblings Rodney and Volante Smith, not
Bostick’s rivals.
The defendants maintain that Bostick committed those
murders as part of a feud that was unrelated to Tommy
Edelin’s organization. But the record indicates that Tommy
Edelin authorized the shooting and was pleased with
Bostick’s demonstrated ability to kill. Witnesses testified that
after the murder, Tommy Edelin rewarded Bostick with a car,
a direct supply of drugs, and a place in his inner circle. Based
on that evidence, a rational jury could find that Bostick
committed those murders in part to enhance his status and role
within Tommy Edelin’s drug organization and that the
murders were therefore within the scope of the drug
distribution conspiracy. Cf. United States v. Carson, 455 F.3d
336, 370 (D.C. Cir. 2006) (jury could find that shooting was
in aid of racketeering and drug distribution enterprise where
defendant shot rival in part “to maintain or increase his own
reputation as an enforcer in the enterprise”).
Second, Earl Edelin, Johnson, and Marbury claim that the
Stanton Terrace Crew killings were committed in retaliation
10
for the Crew’s assault and robbery of Marbury’s relatives, not
as part of the conspiracy to distribute drugs for profit.
We reject that argument because the evidence adequately
supports the conclusion that the violence was committed in
furtherance of the drug distribution conspiracy. When the
Stanton Terrace conflict began, Tommy Edelin told co-
conspirator Thomas Sims: “Take care of these people quick
before it affect the money.” July 2, 2001 Trial Tr. at 12071
(Thomas Sims). Tommy Edelin directed Sims to kill Stanton
Terrace Crew members. Id. Later in the conflict, Tommy
Edelin ordered the murder of a Stanton Terrace Crew affiliate
who had shot at one of his top lieutenants. Johnson helped
carry out that murder.
Earl Edelin taught Sims, Johnson, Marbury, and others
how to use firearms to kill Stanton Terrace Crew members.
He gave Marbury a gun to use in the shootings. In addition,
Earl Edelin communicated with Sims during the dispute and
passed along information about where Stanton Terrace Crew
members could be found.
That evidence indicates that the Stanton Terrace murders
were committed, at least in part, to protect the profits and
operations of Tommy Edelin’s drug distribution enterprise.
The dispute threatened Tommy Edelin’s distributors and their
drug sales. Killing Stanton Terrace Crew members
neutralized that threat and ensured that distribution continued
smoothly. Tommy Edelin’s direct involvement in the dispute
further indicates that the murders were committed in
furtherance of the drug conspiracy, even if there also were
other motives.
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C
Defendants Earl Edelin, Johnson, and Marbury argue that
the Government failed to produce sufficient evidence of their
specific intent to further Tommy Edelin’s drug distribution
scheme. “To prove that a defendant entered into a narcotics
conspiracy under 21 U.S.C. § 846, the government must
prove that he did so knowingly” and with “the specific intent
to further the conspiracy’s objective.” Gaskins, 690 F.3d at
577 (internal quotation marks omitted).
The Government introduced abundant evidence about
Earl Edelin’s central role in the drug conspiracy. He not only
sold his son’s crack to other dealers but also recruited new
mid-level distributors. During disputes with rival drug crews,
Earl Edelin provided firearms expertise and weapons to his
son’s associates. He also warned the group about police raids,
suspected cooperators, and enemy dealers. While employed
at a community recreation center, Earl Edelin gave out keys to
the facility so that the group would have a secure place to
store contraband and sell drugs. That evidence easily
supports the conclusion that Earl Edelin specifically intended
to further the conspiracy’s aim of distributing drugs for profit.
Johnson and Marbury argue that there is insufficient
evidence showing that they knew that Tommy Edelin supplied
their suppliers or were otherwise aware of a larger conspiracy.
At most, they contend, the evidence shows that they were
engaged in independent buyer-seller relationships. But we
have stated that “a jury may properly find a conspiracy, rather
than a buy-sell agreement, where the evidence shows that a
buyer procured [or a seller sold] drugs with knowledge of the
overall existence of the conspiracy.” United States v.
Sanders, 778 F.3d 1042, 1053 (D.C. Cir. 2015) (quoting
United States v. Thomas, 114 F.3d 228, 241 (D.C. Cir. 1997))
12
(internal quotation marks omitted). “Among the factors
demonstrating such knowledge are the existence of repeated,
regular deals; drug quantities consistent with redistribution;
and the extension of credit to the buyer.” Id.
Johnson and Marbury regularly purchased resale
quantities of crack cocaine from mid-level members of
Tommy Edelin’s organization, and they then redistributed
those drugs. Johnson also regularly supplied street-level
dealers in Tommy Edelin’s organization. Credit arrangements
were a common feature of their transactions. A reasonable
jury could therefore conclude that Johnson and Marbury
entered the conspiracy with the specific intent to further its
objective.
To be sure, we have cautioned that “[c]hain analysis must
be used with care.” Tarantino, 846 F.2d at 1393.
Accordingly, we have found sufficient evidence of the
“knowledge” element of conspiracy not just where the
defendant had vague knowledge that the person with whom
he or she dealt also worked with unknown others in some
fashion to sell drugs, but where the evidence showed that the
defendant was “aware of the structure of the enterprise,”
United States v. Sobamowo, 892 F.2d 90, 94 (D.C. Cir. 1989),
such as where the defendant “played other roles in the
conspiracy” and “knew of the collaboration of others,”
Tarantino, 846 F.2d at 1393-94. A reasonable jury could
conclude that the evidence against Johnson and Marbury in
this case satisfied those standards.
D
Defendant Earl Edelin argues that the evidence is
insufficient to support his conviction for conspiracy to
participate in a racketeer-influenced corrupt organization in
13
violation of 18 U.S.C. § 1962(d). As predicate racketeering
acts, the jury found that Earl Edelin had conspired to
distribute drugs and to murder members of the Stanton
Terrace Crew. Earl Edelin contends that the Government
failed to prove his involvement in those activities. As we
have discussed, the record contains plentiful evidence that
was more than sufficient for a jury to find that Earl Edelin
committed both predicate racketeering acts. We therefore
affirm his conviction on the RICO conspiracy charge.
E
Defendant Tommy Edelin challenges his conviction for
continuing criminal enterprise in violation of 21 U.S.C.
§ 848(c). To convict under Section 848, the jury must find
the defendant guilty of “1) a felony violation of the federal
narcotics law; 2) as part of a continuing series of violations;
3) in concert with five or more persons; 4) for whom the
defendant is an organizer or supervisor; 5) from which he
derives substantial income or resources.” United States v.
Moore, 651 F.3d 30, 80 (D.C. Cir. 2011) (internal quotation
marks omitted). A “continuing series of violations” consists
of three or more predicate acts, which may include a drug
conspiracy under 21 U.S.C. § 846. Id.
Tommy Edelin disputes the sufficiency of the evidence
supporting his continuing criminal enterprise conviction on
two grounds. First, he raises a statute of limitations argument
and contends that the evidence is insufficient to establish that
the continuing criminal enterprise continued into the
limitations period – that is, continued beyond July 1993. (The
original indictment was filed on July 30, 1998, and the
offense has a five-year statute of limitations. See 18 U.S.C.
§ 3282(a).) That argument fails because the prosecution had
the burden of proving only three or more predicate acts, at
14
least one of which occurred after July 1993. See United
States v. Soto-Beniquez, 356 F.3d 1, 28 (1st Cir. 2003). The
jury found 11 predicate acts proved, 10 of which occurred
after July 1993. The Government plainly met its burden.
Second, Tommy Edelin contends that the evidence fails
to show that “the core structure of the alleged enterprise
remained intact during the period charged.” Defs.’ Br. 202.
That argument also fails. We have previously rejected the
claim that Section 848 requires the Government to prove “the
structure of a continuing organization equivalent to a RICO
‘enterprise.’” United States v. Hoyle, 122 F.3d 48, 51 (D.C.
Cir. 1997). Rather, we have recognized that “one can
organize events and supervise transitory subordinates without
creating an organizational structure.” Id. The Government
must simply “establish that the defendant exerted some type
of influence over five other individuals in the course of the
criminal enterprise”; it “need not prove that the defendant
managed five people simultaneously.” United States v. Rea,
621 F.3d 595, 602 (7th Cir. 2010) (internal quotation marks
omitted); see also United States v. Almaraz, 306 F.3d 1031,
1040 (10th Cir. 2002); Santana-Madera v. United States, 260
F.3d 133, 140 n.3 (2d Cir. 2001).
The Government presented overwhelming evidence that
Tommy Edelin organized or supervised five or more people in
committing a series of underlying predicate acts, including his
conspiracy to distribute drugs for profit. That evidence
includes extensive testimony from cooperating witnesses
whom Edelin organized, along with others, for purposes of
drug distribution and drug-related murders. Viewed in the
light most favorable to the Government, a rational jury could
easily have found the essential elements of continuing
criminal enterprise beyond a reasonable doubt. We therefore
15
affirm Tommy Edelin’s continuing criminal enterprise
conviction.
F
Defendant Marbury challenges the sufficiency of the
evidence supporting his convictions under D.C. law for
possession of a firearm during a crime of violence, as charged
in Counts 70-73. The jury acquitted Marbury of the
underlying assaults but convicted him of the firearm charges.
Marbury concedes, as he must, that a jury may find him
guilty of possessing a firearm during a crime of violence
without convicting him of the underlying offense, “so long as
there is evidence in the record to support a conviction of the
compound offense.” Ransom v. United States, 630 A.2d 170,
172 (D.C. 1993). He argues that the evidence is insufficient
to prove that he committed the offense of possessing a firearm
during a crime of violence.
Multiple cooperating witnesses provided detailed
testimony about Marbury’s role in the charged assaults, all of
which involved shootings directed at the Stanton Terrace
Crew. In all but one of the attacks, one of the testifying
witnesses had participated in the crime with Marbury. In the
remaining instance, that witness testified that Marbury had
asked him for help in covering up Marbury’s role in the
shooting. Another Government witness testified that after
that assault, Marbury had asked to trade guns because his gun
had a victim’s “body” on it. July 2, 2001 Trial Tr. at 12065
(Thomas Sims). According to the witnesses, Marbury carried
a firearm during each assault.
Based on that testimony, a rational jury could readily find
that Marbury participated in each underlying assault. We
16
therefore affirm his convictions for possession of a firearm
during a crime of violence.
III
The jury convicted defendant Henry Johnson of violent
crime in aid of racketeering activity under 18 U.S.C. § 1959.
At trial, the Government presented evidence that Tommy
Edelin had ordered one of his lieutenants to kill Stanton
Terrace Crew affiliate Edgar Watson. That lieutenant and
Johnson shot at Watson and Watson’s date, Dionne Johnson,
as they were leaving a high school prom. Watson died in the
attack. The jury found Johnson guilty of violent crime in aid
of racketeering activity against Dionne Johnson but acquitted
him of the same charge against Watson.
First, Johnson argues that the evidence is insufficient to
support the conviction for violent crime in aid of racketeering
activity. Because Johnson did not raise that argument in the
District Court, our review is for plain error. “When reviewing
a sufficiency-of-the-evidence challenge for plain error, we
reverse only to prevent a manifest miscarriage of justice.”
United States v. Spinner, 152 F.3d 950, 956 (D.C. Cir. 1998)
(internal quotation marks omitted). A manifest miscarriage of
justice exists “if the record is devoid of evidence pointing to
guilt” or “the evidence on a key element of the offense was so
tenuous that a conviction would be shocking.” Id. (internal
quotation marks omitted).
To convict for violent crime in aid of racketeering
activity, the Government must prove that the defendant
committed a violent crime “as consideration for the receipt of,
or as consideration for a promise or agreement to pay,
anything of pecuniary value from an enterprise engaged in
racketeering activity, or for the purpose of gaining entrance to
17
or maintaining or increasing position in an enterprise engaged
in racketeering activity.” 18 U.S.C. § 1959(a). We have
stated that the “motive of maintaining or increasing one’s
position in an enterprise may be reasonably inferred where the
defendant commits the crime in furtherance of enterprise
membership or where the defendant knew it was expected of
him by reason of his membership in the enterprise.” United
States v. Gooch, 665 F.3d 1318, 1337-38 (D.C. Cir. 2012)
(internal quotation marks omitted). That motive may be
found, for example, where the defendant “murdered
individuals to maintain or increase his own reputation as an
enforcer in the enterprise.” Id. at 1338 (internal quotation
marks omitted).
Johnson contends that the Government failed to prove
that he received anything of pecuniary value for his assault of
Dionne. That argument fails because the evidence is
sufficient to show that Johnson sought to achieve a higher
position in Tommy Edelin’s racketeering organization. A
Government witness testified that Tommy Edelin had ordered
Watson’s murder because Watson had shot at Edelin’s
lieutenant. Edelin was concerned that if they failed to
retaliate, “that would make them look weak” and “would
reflect on him.” Aug. 1, 2001 Trial Tr. at 16344 (Eric Jones).
That testimony indicates that Tommy Edelin expected his
associates to violently retaliate against individuals who
threatened them, lest their weakness reflect on the entire
group. Based on that evidence, a jury could reasonably infer
that Johnson hoped to improve his status in the enterprise by
assisting with Watson’s murder and assaulting Dionne in the
process.
Second, Johnson argues that, in any event, he should
receive a new trial on the violent crime in aid of racketeering
activity and related firearm charges because, he says, his
18
conviction resulted from jury confusion. The jury asked the
District Court whether it must find Johnson guilty of RICO
conspiracy in order to convict him of violent crime in aid of
racketeering activity. The District Court responded that the
“answer to that question is no.” Supp. Jury Instructions, No.
98-264 (D.D.C. filed Sept. 21, 2001). Johnson contends that
the District Court’s answer was too cursory to adequately
resolve the jury’s confusion.
We have held that if the jury expresses confusion about a
jury instruction, the district court “should reinstruct the jury to
clear away the confusion.” United States v. Laing, 889 F.2d
281, 290 (D.C. Cir. 1989). A district court’s decision “to
limit its response to answering the jury’s question, however,
should be reversed only if it is an abuse of discretion.” Id.
We find no abuse of discretion where, as here, the initial
instructions were correct and the District Court’s “response
was limited to answering the jury’s query and was entirely
accurate.” Id.
IV
Defendant Bryan Bostick appeals his convictions for the
Count One drug conspiracy and the Count Three RICO
conspiracy. Bostick contends that there is insufficient
evidence that he participated in those conspiracies within the
five-year statute-of-limitations period – that is, after August
1994. He also argues that the District Court erred by failing
to instruct the jury on withdrawal and limitations defenses.
We disagree.
Conspiracy has a five-year statute of limitations. See 18
U.S.C. § 3282(a). Bostick claims that he withdrew from the
charged conspiracies in April 1994, more than five years
19
before the Government obtained an indictment against him on
August 5, 1999.
The Supreme Court considered “the intersection of a
withdrawal defense and a statute-of-limitations defense” in
Smith v. United States, 133 S. Ct. 714, 718, slip op. at 3
(2013). The Court stated that participation in a conspiracy
“within the statute-of-limitations period is not an element of
the conspiracy offense” that requires proof beyond a
reasonable doubt. Id. at 720, slip op. at 6. Rather, “a
defendant’s membership in the conspiracy, and his
responsibility for its acts, endures even if he is entirely
inactive after joining it.” Id. at 721, slip op. at 8. The
defendant has the burden of establishing his or her
withdrawal. Id. at 719, slip op. at 3-4. To withdraw from a
conspiracy, an individual must come clean to the authorities
or communicate his or her abandonment “in a manner
reasonably calculated to reach co-conspirators.” United
States v. Thomas, 114 F.3d 228, 267 (D.C. Cir. 1997)
(internal quotation marks omitted).
Bostick did not present sufficient evidence of withdrawal.
A Government witness testified in passing that Bostick had
worked with one of Tommy Edelin’s rivals. But the witness
did not suggest that working with Tommy Edelin’s rival
required Bostick to withdraw from the Edelin conspiracy.
Moreover, when the witness made that comment, Bostick
made no attempt to develop a withdrawal defense. Rather,
Bostick’s attorney chastised the witness for “blurting out”
irrelevant information about his client. May 23, 2001 Trial
Tr. at 6051 (Cary Clennon).
Bostick also contends that his conspiracy convictions
must be reversed because the District Court failed to instruct
the jury on Bostick’s supposed withdrawal from the
20
conspiracy in 1994. Because Bostick did not request such an
instruction at trial, we review for plain error. United States v.
Gatling, 96 F.3d 1511, 1524-25 (D.C. Cir. 1996). Under that
standard, Bostick must show “(1) that there was an error, (2)
that the error was clear or obvious, (3) that it affected the
appellant’s substantial rights, and (4) that it seriously affected
the fairness, integrity, or public reputation of the judicial
proceedings.” United States v. Gooch, 665 F.3d 1318, 1332
(D.C. Cir. 2012). The District Court did not err, let alone
plainly err, by failing to instruct the jury on withdrawal. As
we have discussed, Bostick did not produce evidence
substantiating his claim of withdrawal at any point, let alone
in or before 1994.
V
All of the defendants challenge the District Court’s jury
instructions on the Count One drug conspiracy. The District
Court inadvertently omitted a sentence that the parties had
agreed to include in the instructions. That sentence, in the
defendants’ view, would have underscored that the
Government must prove each individual defendant’s
involvement in the conspiracy. At the time, no one objected
to the omitted sentence. On appeal, the defendants maintain
that without that sentence, the instructions permitted the jury
to convict all of the defendants on Count One as long as the
jury found that any two of the defendants had participated in
the conspiracy.
Because the defendants did not object to the District
Court’s omission, our review is for plain error. United States
v. Gaviria, 116 F.3d 1498, 1509 (D.C. Cir. 1997). Under that
standard, we reverse only if the defendants show “(1) that
there was an error, (2) that the error was clear or obvious, (3)
that it affected the appellant’s substantial rights, and (4) that it
21
seriously affected the fairness, integrity, or public reputation
of the judicial proceedings.” United States v. Gooch, 665
F.3d 1318, 1332 (D.C. Cir. 2012). We conclude that the
instructions adequately conveyed that an individual defendant
must join the conspiracy to be found guilty under 21 U.S.C.
§ 846. There was no error, much less plain error.
The District Court instructed the jury that it “must
consider separately the issue of each defendant’s
participation.” Sept. 13, 2001 Trial Tr. at 21521. According
to the instructions, the elements of the conspiracy require
“that the government prove beyond a reasonable doubt that a
particular defendant was aware of the common purpose, had
knowledge that the conspiracy existed, and was a willing
participant with the intent to advance the purposes of the
conspiracy.” Id. at 21523. It further cautioned the jury that
before determining “that a defendant has become a member of
a conspiracy, the evidence in the case must prove to you
beyond a reasonable doubt that the defendant knowingly
participated in the unlawful plan with the intent to advance or
further some objective or purpose of the conspiracy.” Id. The
court added that “a person who has no knowledge of or intent
to join the conspiracy, but just happens to act in a way that is
of benefit to the conspiracy, or to a conspirator, does not
thereby himself become a conspirator.” Id. at 21523-24.
The District Court’s instructions repeatedly emphasized
that to convict a particular defendant of Count One, the jury
must find that the individual defendant knowingly
participated in the conspiracy with the specific intent to
further its objectives. The omitted sentence would have
underscored the point, but the omission of the sentence did
not render the instructions erroneous.
22
VI
Defendants Bryan Bostick, Henry Johnson, and Shelton
Marbury contend that a number of D.C. Code charges were
improperly joined to the federal indictment. As a result of the
allegedly improper joinder, those defendants argue that the
District Court lacked subject matter jurisdiction over the D.C.
offenses pursuant to D.C. Code § 11-502(3).
Section 11-502(3) provides that “the United States
District Court for the District of Columbia has
jurisdiction” of any “offense under any law applicable
exclusively to the District of Columbia which offense is
joined in the same information or indictment with any Federal
offense.” We have interpreted “joined” in that context to
mean “properly joined” under Federal Rule of Criminal
Procedure 8. United States v. Gooch, 665 F.3d 1318, 1334
(D.C. Cir. 2012). We review a claim of improper joinder de
novo. See id. at 1335.
Federal Rule of Criminal Procedure 8(b) provides that an
indictment “may charge 2 or more defendants 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.” The D.C. offenses, therefore, were
properly joined as long as the federal and D.C. law offenses
formed part of the same “series of acts or transactions.” A
“series of acts or transactions” is “two or more acts or
transactions connected together or constituting parts of a
common scheme or plan.” United States v. Moore, 651 F.3d
30, 69 (D.C. Cir. 2011) (internal quotation marks omitted).
Joinder analysis “does not take into account the evidence
presented at trial,” but rather “focuses solely on the
indictment and pre-trial submissions.” Gooch, 665 F.3d at
23
1334. The Government, therefore, “need merely allege, not
prove, the facts necessary to sustain joinder.” Id. If the
indictment satisfies the requirements of Rule 8(b), “trial
evidence cannot render joinder impermissible and is thus
irrelevant to our inquiry.” Moore, 651 F.3d at 69.
In this case, the superseding indictment alleged that the
D.C. offenses were committed in furtherance of the charged
drug conspiracy or were predicate acts committed in
furtherance of the charged RICO conspiracy, or both. We
have held that when an indictment alleges that local offenses
were committed in furtherance of a federal drug conspiracy or
as predicate acts in a federal RICO conspiracy, the local and
federal offenses were “part of a common scheme or plan” and
thus were properly joined under Rule 8(b). Id. The
defendants contend that the evidentiary record disproves any
connection between the local offenses and the federal
conspiracies. We reject that contention. But even if the
defendants were correct, the evidence presented at trial is
irrelevant to a determination of proper joinder. See id.;
Gooch, 665 F.3d at 1334.
Because the indictment alleged that the local and federal
offenses were committed as part of a common scheme or
plan, the District Court properly exercised jurisdiction
pursuant to Section 11-502(3).
24
VII
The defendants raise two main issues concerning the
testimony of FBI Agent Dan Sparks.
A
The Government called FBI Agent Sparks as its first
witness at trial. Agent Sparks provided overview testimony
about the law enforcement investigation of the defendants.
That testimony lasted only about an hour, in a trial that lasted
five months and had dozens of witnesses testify, including
numerous cooperators who testified about their involvement
in the organization.
The defendants contend that the District Court erred by
admitting Agent Sparks’s overview testimony. Based on
decisions of this Circuit that came down after the trial, the
Government concedes that some aspects of Agent Sparks’s
testimony exceeded the permissible uses of overview
testimony. The Government argues, however, that the
admission of Agent Sparks’s testimony was harmless error
under Rule 52(a) of the Federal Rules of Criminal Procedure.
We agree.
First, Agent Sparks testified as a lay witness about
general investigative techniques. He discussed the use of
controlled buys, search warrants, and cooperating witnesses
as general techniques for infiltrating drug organizations.
Agent Sparks also described the difficulty of conducting
surveillance on criminals who conceal their illegal activities.
Based on our recent precedents, admission of those statements
as lay opinion testimony was error. See United States v.
Moore, 651 F.3d 30, 61 (D.C. Cir. 2011); see also Fed. R.
Evid. 701. However, the District Court later qualified Agent
25
Sparks as an expert in the investigation of drug trafficking
based on his “training and experience on hundreds of
investigations.” Aug. 13, 2001 Trial Tr. at 17649. Because
Agent Sparks would have qualified as an expert for purposes
of the challenged testimony, there was no prejudice from that
particular error. See Moore, 651 F.3d at 61 (that Agent
Sparks “might have qualified as an expert” ameliorated
prejudice from improper opinion testimony); see also United
States v. Smith, 640 F.3d 358, 366 (D.C. Cir. 2011) (agent’s
improper lay testimony was harmless error where agent would
have qualified as an expert).
Second, Agent Sparks testified that violence in the
Stanton Dwellings neighborhood had prompted the
investigation in this case. When asked about the cause of the
violence, Agent Sparks testified: “They were predominantly
selling narcotics, and the narcotics was fueling the violence.”
May 9, 2001 Trial Tr. at 4179. The Government concedes
that Agent Sparks’s statement linking the violence to drug
trafficking was inadmissible. See Fed. R. Evid. 403, 602,
701, 802. Though inadmissible, the challenged testimony was
harmless error in this case. There was overwhelming
evidence that the defendants committed violence, including
numerous murders, in furtherance of the drug distribution
conspiracy.
Third, Agent Sparks testified about the Government’s use
of cooperating witnesses. Agent Sparks repeatedly asserted
that law enforcement verifies the information cooperators
provide and requires truthful testimony as a condition of their
plea agreements. As the Government concedes, Agent
Sparks’s testimony impermissibly suggested “that the
government had selected only truthful co-conspirator
witnesses for the pre-indictment investigation, from whom the
jury would hear during the trial.” Moore, 651 F.3d at 59-60.
26
Such vouching testimony “is impermissible because it
manifests the obvious danger that a jury will treat a summary
witness, particularly a government agent,” as “additional
evidence or as corroborative of the truth of the underlying
testimony.” United States v. Miller, 738 F.3d 361, 372 (D.C.
Cir. 2013) (quoting United States v. Lemire, 720 F.2d 1327,
1348 (D.C. Cir. 1983)) (internal quotation marks omitted); see
also Moore, 651 F.3d at 59-60; Fed. R. Evid. 403, 608(a).
Under our precedents, however, that testimony was
harmless error. At the close of trial, the District Court
instructed the jury: “You are the sole judge of the credibility
of the witnesses. In other words, you alone are to determine
whether to believe any witness and the extent to which any
witness should be believed.” Sept. 13, 2001 Trial Tr. at
21499. In United States v. Miller, we held that an identical
jury instruction mitigated prejudice from improper vouching
testimony. 738 F.3d at 372. In addition, the defendants here
cross-examined Agent Sparks, and he acknowledged the
limits on verifying cooperator testimony. Agent Sparks
agreed, for example, that cooperating co-conspirators had
“flat out lied” to law enforcement in the past. May 9, 2001
Trial Tr. at 4421-22. He also agreed that law enforcement
cannot always verify cooperators’ information. Cf. Miller,
738 F.3d at 372 (impeachment of cooperating witnesses on
cross-examination mitigated prejudice from vouching
testimony). The well-rounded picture that Agent Sparks
ultimately presented about cooperating witnesses mitigated
any risk of prejudice from his initial testimony on that point.
Fourth, Agent Sparks discussed some of the evidence that
was later admitted at trial. Some of that testimony violated
the hearsay rule. See Fed. R. Evid. 602, 701, 802. But the
error was harmless because that testimony – to the extent it
related to charged offenses – was confirmed through several
27
months of testimony from dozens of witnesses, including
numerous cooperating witnesses.
As this Court has stated before, aspects of overview
testimony can be problematic under the Federal Rules of
Evidence. But in the big picture of this trial – which lasted
many months and included massive amounts of testimonial
evidence – the overview testimony was relatively minor. To
the extent it exceeded the bounds of the Federal Rules of
Evidence, Agent Sparks’s overview testimony was harmless
error. It did not have a “substantial and injurious effect or
influence in determining the jury’s verdict.” Kotteakos v.
United States, 328 U.S. 750, 776 (1946); see also Smith, 640
F.3d at 366, 368.
B
During the trial, the District Court admitted several
audiotapes and videotapes of conversations between Tommy
Edelin and Kenneth Daniels, a confidential informant. The
conversations concerned a drug transaction. Daniels sold
Edelin heroin and cocaine in a government sting operation.
But the Government did not call Daniels as a witness at trial.
Instead, the Government introduced audiotapes and
videotapes of the conversations between Edelin and Daniels,
and Agent Sparks testified about those recorded
conversations. Edelin challenges the admission of the
audiotape and videotape evidence on Confrontation Clause
grounds. He also argues that Agent Sparks’s testimony about
the recorded conversations violated the Federal Rules of
Evidence.
First, Tommy Edelin contends that the admission of
Daniels’s statements on the tapes violated the Confrontation
Clause of the Sixth Amendment because Edelin was not able
28
to cross-examine Daniels. The Sixth Amendment’s
Confrontation Clause generally bars the introduction of
testimonial statements of a witness absent from trial unless
the witness is unavailable and the defendant has had a prior
opportunity to cross-examine the witness. See Crawford v.
Washington, 541 U.S. 36, 59 (2004). The Supreme Court has
stated, however, that the Confrontation Clause “does not bar
the use of testimonial statements for purposes other than
establishing the truth of the matter asserted.” Id. at 60 n.9.
Daniels’s recorded statements were not introduced for their
truth but rather to provide context for Edelin’s statements
regarding the transaction. The Government could not have
introduced Daniels’s statements for their truth because, as
Agent Sparks confirmed, Daniels “was lying to Mr. Edelin
during these conversations.” Aug. 13, 2001 Trial Tr. at
17729. As the Government points out, “Daniels was not, as
he represented on the tapes, actually arranging to sell drugs to
[Edelin] obtained from a New York drug supplier, but rather
acting as a [confidential informant] offering drugs actually
supplied by law enforcement agents in a government sting
operation.” Gov’t Br. 115-16. Because Daniels’s statements
were not offered for their truth, the admission of the tapes did
not violate the Confrontation Clause.
Second, Tommy Edelin argues that Agent Sparks’s
expert testimony about the recorded conversations
contravened the Federal Rules of Evidence. Agent Sparks
testified as an expert about Edelin and Daniels’s negotiations
over the sale of drugs. Edelin’s basic claim is that Agent
Sparks improperly translated the recorded conversations by
interpreting ambiguous statements in an incriminating light.
He argues that, as a result, Agent Sparks’s testimony went
beyond the scope of proper expert testimony and greatly
prejudiced Edelin.
29
Assuming for the sake of argument that Agent Sparks’s
testimony exceeded proper expert testimony, any error was
harmless, especially given the overwhelming evidence against
Tommy Edelin.
The only close call with respect to harmless error
concerns Tommy Edelin’s convictions on Counts 86-88 for
using a communication device (i.e., a phone or pager) to
facilitate the Count One conspiracy to distribute drugs. There
is no question that Edelin used a phone or pager to
communicate with Daniels about the drug deal. The only
issue is whether he did so in furtherance of the drug
conspiracy charged in Count One. Put simply, Agent
Sparks’s testimony could not have meaningfully influenced
the jury’s thinking on that question, because Agent Sparks
mentioned the Count One drug conspiracy only in passing in
response to a question on cross-examination.
The record, moreover, contains plentiful evidence that
Tommy Edelin was acting in furtherance of the drug
conspiracy charged in Count One when he used a
communication device to communicate with Daniels. On
their face, the recorded conversations refer to the group that
had been distributing drugs for Edelin. In one call, for
example, Edelin told Daniels that he could sell drugs through
“10 dudes” that “I trust and that I grew up with that I kicked
keys to and still be kicking keys.” July 7, 1998 Call Tr. at 6,
Joint Appendix at 1315. There was no evidence to support an
inference that Edelin had developed some new or different
drug distribution network through which he planned to sell
the large quantity of drugs purchased from Daniels. Rather,
Edelin’s reference to a group of “dudes” with whom he grew
up selling drugs and with whom he continued to sell drugs
was very likely (if not certainly) a reference to his
longstanding organization, members of whom had provided
30
months of testimony about the years they spent distributing
drugs for Edelin.
Nor does the record suggest that Tommy Edelin had
ended the organization charged in the Count One conspiracy –
and started a new one – before his conversations with Daniels.
Witnesses testified that as of 1996, Edelin was still directly
supplying some mid-level dealers like Thomas Sims and
indirectly supplying other mid-level dealers like Henry
Johnson in the Stanton Dwellings and Congress Park
neighborhoods of Southeast Washington, D.C. Edelin’s
brother testified that he traveled to New York twice a month
during 1997 to purchase large quantities of powder cocaine on
Edelin’s behalf. He would deliver the drugs to Edelin’s
recording studio, where Edelin would cook the powder into
crack cocaine. When officers searched Tommy Edelin’s
house the day of his arrest, they found an eighth of a kilogram
of powder cocaine and an eighth of a kilogram of crack
cocaine.
In short, Tommy Edelin maintains that, absent Agent
Sparks’s testimony, a jury could have concluded that the
conversations with Daniels related to some unknown drug
organization distinct from the Count One conspiracy. But
there is simply no evidence to support that theory and no
reason to believe that the jury would have so concluded had
Agent Sparks not testified. And we see no indication that
Agent Sparks’s testimony had a “substantial and injurious
effect” on the jury’s conclusion that the Daniels conversations
were in furtherance of the Count One conspiracy. See
Kotteakos, 328 U.S. at 776. Any error with regard to
admission of Agent Sparks’s testimony about the Daniels
tapes was harmless.
31
VIII
At trial, the Government presented expert testimony about
the autopsies of 10 homicide victims. The experts included
two medical examiners for the District of Columbia and a
forensic pathologist for North Carolina. Two of the experts
testified about autopsies that they had observed but had not
performed. The remaining expert testified about eight
autopsies that he had neither performed nor observed. The
experts discussed information in the victims’ autopsy reports
and opined on the manner of the victims’ deaths.1
The defendants contend that the Confrontation Clause of
the Sixth Amendment barred the admission of the autopsy
reports and accompanying expert testimony. The Sixth
Amendment bars the introduction of testimonial statements of
a witness absent from trial unless the witness is unavailable,
and the defendant has had a prior opportunity to cross-
examine the witness. See Crawford v. Washington, 541 U.S.
36, 59 (2004). The defendants argue that the autopsy reports
were testimonial statements under the Confrontation Clause.
They maintain that the introduction of those statements
violated the Confrontation Clause because the defendants did
not have an opportunity to cross-examine the medical
examiners who actually performed the autopsies and authored
the reports.
Because the defendants did not preserve their
constitutional objection at trial, our review is for plain error.
Under that standard, the defendants must show “(1) that there
was an error, (2) that the error was clear or obvious, (3) that it
1
The Government also presented testimony about the autopsy
of an eleventh homicide victim that is not at issue here. The expert
who testified about that autopsy had conducted the examination.
32
affected the appellant’s substantial rights, and (4) that it
seriously affected the fairness, integrity, or public reputation
of the judicial proceedings.” United States v. Gooch, 665
F.3d 1318, 1332 (D.C. Cir. 2012). Substantial rights were
affected if “the error was prejudicial and actually affected the
outcome below.” United States v. Gatling, 96 F.3d 1511,
1525 (D.C. Cir. 1996). The “plainness” of an error is
evaluated at the time of appellate review, not at the time of
the district court’s decision. See Henderson v. United States,
133 S. Ct. 1121, 1129, slip op. at 9 (2013).
Based on Supreme Court decisions issued after the trial in
this case, we will assume without deciding that the autopsy
reports were “testimonial” for purposes of the Confrontation
Clause. See Bullcoming v. New Mexico, 131 S. Ct. 2705
(2011); Melendez-Diaz v. Massachusetts, 557 U.S. 305
(2009).2 However, any error arising from their admission did
not affect the defendants’ substantial rights in light of the
overwhelming evidence against them. Put simply, the
autopsy reports did not play an important role in the trial. The
Government presented other evidence at trial, including
testimony from cooperating witnesses, that nine of the ten
homicides resulted from gunshot wounds inflicted by
members of the charged conspiracy, and that Tommy Edelin
hired hitmen to carry out the tenth murder. Moreover, there
2
In United States v. Moore, 651 F.3d 30, 72-73 (D.C. Cir.
2011), we held that autopsy reports are testimonial under certain
circumstances based on the Supreme Court’s decisions in
Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011) and Melendez-
Diaz v. Massachusetts, 557 U.S. 305 (2009). Moore came down
before the Supreme Court’s decision in Williams v. Illinois, 132 S.
Ct. 2221 (2012). We need not decide here whether or how
Williams affects the analysis of autopsy reports as testimonial. As
we explain, assuming the reports were testimonial, their admission
was harmless error.
33
was no dispute at trial that gunshots killed each victim. As
the Government aptly stated in its brief, the “issue that was in
material dispute – who pulled the trigger(s) – was not
addressed by any of the testifying medical examiners.” Gov’t
Br. 158. There was no plain error in admitting the autopsy
reports.
IX
Defendants Bryan Bostick and Tommy Edelin attempted
to introduce expert testimony at trial. Bostick sought to
present testimony from a gang expert, and Tommy Edelin
sought to present testimony from an expert in FBI
investigative techniques. The District Court excluded that
testimony. The defendants now appeal the District Court’s
rulings.
Federal Rule of Evidence 702 governs the admissibility
of expert testimony. The rule provides that a “witness who is
qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or
otherwise” if four conditions are met: First, “the expert’s
scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a
fact in issue.” Second, “the testimony is based on sufficient
facts or data.” Third, “the testimony is the product of reliable
principles and methods.” And fourth, “the expert has reliably
applied the principles and methods to the facts of the case.”
We have stated that a “district court has broad discretion
regarding the admission or exclusion of expert testimony, and
reversal of a decision on these matters is appropriate only
when discretion has been abused.” United States v. Clarke,
24 F.3d 257, 268 (D.C. Cir. 1994) (internal quotation marks
omitted). The District Court did not abuse its discretion here.
34
A
Bostick proffered testimony from Lisa Taylor-Austin, “an
expert on gang culture and violence.” Aug. 28, 2001 Trial Tr.
at 20173. Taylor-Austin would have opined “that the so-
called gangs referenced in the government case do not fit the
typical profile or operational structure of gangs as they are
typically understood by the law enforcement community.” Id.
Defendants Henry Johnson and Tommy Edelin joined
Bostick’s request to admit the expert. They argued that the
prosecution had attempted to portray Tommy Edelin’s
criminal organization as a “crew” or “gang,” and that
information on gang formation was therefore relevant. Id. at
20179-80.
The Government objected on the ground that it was
irrelevant whether Tommy Edelin’s organization constituted a
gang. None of the charges involved gang membership, and
the Government was not arguing that the defendants belonged
to a gang. Rather, the question for the jury was whether the
defendants had participated in drug and racketeering
conspiracies. The District Court found the proffer
“inadequate” and sustained the Government’s objection. Id.
at 20180.
The District Court did not abuse its discretion. The
defendants failed to show how gang formation was relevant to
the charged drug and racketeering conspiracies. The elements
of those offenses do not include gang membership. See 21
U.S.C. § 846; 18 U.S.C. § 1962(d). The Government,
moreover, made no attempt to prove that the defendants were
gang members. The District Court therefore acted within its
discretion by concluding that the proffered testimony would
35
not “help the trier of fact to understand the evidence or to
determine a fact in issue.” Fed. R. Evid. 702(a).
B
Tommy Edelin sought to present expert testimony from
Dr. Tyrone Powers, a former FBI special agent. The proffer
explained that Powers would “rebut” FBI Agent Dan Sparks’s
testimony regarding cooperating witnesses. Aug. 20, 2001
Trial Tr. at 18846. In particular, the expert would address
departures from “standard FBI procedure with the handling of
a number of co-conspirators in terms of the inducements that
they were provided, the fact that they were permitted to
continue to engage in criminal activity,” and the level of
surveillance over their activities. Id. The Government
objected that it would be improper for an expert witness to
opine “about how the FBI may have conducted or didn’t
conduct its investigation in this case.” Id. at 18847. The
District Court agreed with the Government and refused to
admit the testimony.
The District Court did not abuse its discretion in
excluding Powers’s testimony. Federal Rule of Evidence 702
provides that expert testimony must be “based on sufficient
facts or data” and “the product of reliable principles and
methods.” Tommy Edelin’s proffer failed to clarify the basis
for and reliability of Powers’s testimony regarding perceived
errors in the Government’s investigation, in which Powers
took no part. Nor did Edelin explain how such testimony
would help the jury “to understand the evidence or to
determine a fact in issue.” Fed. R. Evid. 702(a). In short,
Edelin failed to meet the basic requirements of Rule 702. The
District Court did not abuse its discretion in excluding that
testimony.
36
X
During and after the trial, the defendants alerted the
District Court to the possibility of juror misconduct. In the
first instance, the District Court instructed the jury regarding
appropriate conduct for jurors. In the second instance, which
the defendants brought to the court’s attention after the trial,
the District Court held two hearings in order to investigate the
allegations of improper influence on the jury. On appeal, the
defendants challenge how the District Court handled both
matters.
A
Following the introduction of autopsy pictures, defendant
Bryan Bostick’s attorney alerted the District Court that she
had noticed a juror looking “repulsed” and communicating
non-verbally with the juror next to her. July 25, 2001 Trial
Tr. at 15175 (Diane Savage). The District Court instructed
the members of the jury not to discuss the case with one
another or to express views about the evidence in any way
with one another. The next day, Bostick’s attorney reported
that she saw the jurors repeat their non-verbal exchange.
A few days later, the District Court informed counsel that
some jurors had told the marshals that they were “nervous”
because the defendants, and in particular Bostick, had been
staring at the jurors. The marshals told the jurors that “if the
defendant doesn’t say anything or mouth anything, it doesn’t
mean anything, that different people just look differently.”
July 30, 2001 Trial Tr. at 15810-11. An alternate juror had
also asked the marshals what to “do if one of the defendants
looks like he’s fallen in love with you,” apparently in
reference to Bostick. Id. at 15811. Using stronger language
submitted by Bostick’s counsel, the District Court again
37
instructed the members of the jury to refrain from verbal or
non-verbal discussion of the case with one another.
Several days later, the District Court notified counsel that
the jury had complained to a marshal about that instruction.
The District Court apologized to the jury for “any confusion”
and explained that non-verbal communication refers to the
expression of “opinion about the facts or the evidence in the
case.” Aug. 6, 2001 Trial Tr. at 16732.
Bostick asked the court to individually question all of the
jurors to confirm their impartiality. Each of the other
defendants opposed that request, and the court denied it.
Bostick then moved to sever his trial from that of his co-
defendants. The District Court denied that motion. On
appeal, Bostick maintains that the District Court erred by
denying his request for a mid-trial voir dire and denying his
motion for severance.
First, Bostick maintains that the District Court abused its
discretion by refusing to conduct a voir dire of each juror to
determine each juror’s impartiality. We afford the District
Court “especially broad discretion to determine what manner
of hearing, if any, is warranted about intra-jury misconduct.”
United States v. Williams-Davis, 90 F.3d 490, 505 (D.C. Cir.
1996) (internal quotation marks omitted). Unlike external
influences on a jury, evidence of intra-jury communications
and influences “is not competent to impeach a verdict.”
United States v. Wilson, 534 F.2d 375, 379 (D.C. Cir. 1976)
(internal quotation marks omitted); see also Williams-Davis,
90 F.3d at 505 (When “there are premature deliberations
among jurors with no allegations of external influence on the
jury, the proper process for jury decisionmaking has been
violated, but there is no reason to doubt that the jury based its
38
ultimate decision only on evidence formally presented at
trial.”) (internal quotation marks omitted).
Under the circumstances here, we see no basis for saying
that the District Court had to do more. Indeed, all of the
defendants except Bostick opposed a mid-trial voir dire on the
ground that it would alienate the jury and would not produce
useful information. The District Court did not abuse its
discretion when it declined to conduct a mid-trial voir dire of
the jury.
Second, Bostick asserts that the District Court’s denial of
his motion for severance compromised his right to an
unbiased jury. Federal Rule of Criminal Procedure 14
authorizes a court to sever a joint trial if joinder appears to
prejudice a defendant or the Government. There must be “a
serious risk that a joint trial would compromise a specific trial
right of one of the defendants, or prevent the jury from
making a reliable judgment about guilt or innocence.” Zafiro
v. United States, 506 U.S. 534, 539 (1993). There was no
such serious risk here. We affirm the denial of Bostick’s
motion for severance.
B
Eleven months after the verdict, Alternate Juror 2 ran into
defense counsel for Tommy Edelin and Bostick and informed
them of alleged juror misconduct during the trial. Alternate
Juror 2 claimed that a courtroom marshal had an inappropriate
personal relationship with Juror 7. In addition, Alternate
Juror 2 said that after her discharge, the marshal told her that
Bostick had confessed to a charged murder. Alternate Juror 2
did not participate in the jury’s deliberations, but she later
stated that she believed she had shared the information about
39
Bostick with deliberating Juror 2269 before the verdict was
reached.
Defense counsel notified the District Court of Alternate
Juror 2’s allegations. The District Court then held two
hearings. During those hearings, the District Court
questioned Alternate Juror 2, Juror 7, and Juror 2269.
Attorneys for the defendants attended and suggested questions
for the District Court to ask. After the hearings, the
defendants filed motions requesting the court to examine the
marshal and the remaining jurors. In a detailed opinion, the
District Court denied the motions for further investigation on
the ground that Alternate Juror 2’s allegations were not
credible. United States v. Edelin, 283 F. Supp. 2d 8 (D.D.C.
2003). The defendants challenge that ruling.
We review the District Court’s “choice of procedures to
investigate the alleged juror misconduct for abuse of
discretion.” United States v. White, 116 F.3d 903, 928 (D.C.
Cir. 1997). The District Court’s factual findings “are entitled
to great weight, and in the absence of new facts ought not to
be disturbed unless manifestly unreasonable.” Id. (internal
quotation marks and alteration omitted).
In its memorandum opinion denying the defendants’
motions for further investigation, the District Court set forth
detailed findings in support of its conclusion that Alternate
Juror 2’s allegations lacked credibility.
First, the District Court found that Alternate Juror 2 had
“an incentive to discredit” the marshals, “with whom she had
not had a good relationship” during the trial. Edelin, 283 F.
Supp. 2d at 16. Alternate Juror 2 believed that the marshals
had criticized her conduct as a juror. She speculated in her
testimony that their criticism was the reason she was not
40
called back to deliberate with the jury. The District Court
concluded that Alternate Juror 2’s apparent “hostility toward
the Marshals” gave her a reason “to seek to undermine the
jury’s verdict.” Id.
Second, the District Court found no evidence supporting
the allegation that Juror 7 had an improper relationship with
the marshal in question. Alternate Juror 2 admitted during her
testimony that she had “no real proof” supporting this
allegation. Id. at 17 (quoting June 27, 2003 Hearing Tr. at 10)
(internal quotation marks omitted). Moreover, Juror 7
emphatically denied having any kind of personal relationship
with the marshal and testified that they never discussed the
trial. Juror 2269 corroborated Juror 7’s testimony, stating that
she never witnessed any inappropriate contact between jurors
and marshals. The District Court concluded that Alternate
Juror 2 had based her allegation on unsubstantiated “rumor,
inference, and suspicion.” Id.
Third, the District Court found Alternate Juror 2’s second
allegation – that the marshal told her that Bostick had
confessed to a murder – similarly not credible. Alternate
Juror 2 herself testified that “the Marshals didn’t say a lot to
us.” Id. (quoting June 27, 2003 Hearing Tr. at 14) (internal
quotation marks omitted). In addition, as noted above,
Alternate Juror 2 indicated that she did not have a good
relationship with the marshal during the trial. In light of this
testimony, the District Court concluded that it was “unlikely
that the Deputy Marshal would discuss the case in such an
open and conversational manner with Alternate Juror 2 at any
time.” Id. at 18.
Moreover, even if the marshal made the alleged comment
to Alternate Juror 2, the District Court concluded that there
was no evidence that the comment contaminated the jury.
41
Alternate Juror 2 alleged that the incident took place after her
discharge, and she did not participate in the jury’s
deliberations. And the District Court found no evidence
supporting Alternate Juror 2’s claim that she may have
repeated the alleged comment to Juror 2269 while the jury
was deliberating. Juror 2269 emphasized that she had not
spoken with Alternate Juror 2 at any point during the jury’s
deliberations. Juror 2269 also “testified emphatically” that
Alternate Juror 2 had never informed her of Bostick’s alleged
confession. Id. at 19. The District Court compared Juror
2269’s consistent testimony with Alternate Juror 2’s
testimony and concluded that “Juror 2269 is the more credible
witness on this point.” Id.
The defendants maintain that the District Court abused its
discretion by crediting the testimony of Juror 7 and Juror
2269. They argue that both jurors were implicated in
Alternate Juror 2’s allegations and thus had an incentive to
deny any misconduct. Rather than relying on Juror 7 and
Juror 2269’s testimony, the defendants contend, the District
Court should have questioned the other jurors and the
marshal. In addition, the defendants argue that the District
Court should have requested Alternate Juror 2’s and Juror
2269’s phone records in order to establish whether they spoke
during the jury’s deliberations.
That argument lacks merit. “We have explicitly rejected
any automatic rule that jurors are to be individually
questioned” about alleged misconduct. Williams-Davis, 90
F.3d at 499. And we have stated that when questioning jurors
about an alleged improper contact, a judge is “entitled to rely
on their testimony if he found it credible.” United States v.
Butler, 822 F.2d 1191, 1197 (D.C. Cir. 1987); see also id.
(Jurors’ assurances of impartiality are “not inherently suspect,
for a juror is well qualified to say whether he has an unbiased
42
mind in a certain matter.”) (quoting Smith v. Phillips, 455
U.S. 209, 217 n.7 (1982)) (internal quotation marks omitted);
United States v. Gartmon, 146 F.3d 1015, 1029 (D.C. Cir.
1998) (“The district court, having observed the demeanor of
the juror, is in the best position to determine the credibility”
of the juror’s assurance “that the contact would not influence
him.”).
Here, the District Court had broad discretion to determine
how to investigate Alternate Juror 2’s allegations, and we
must give the District Court’s factual findings regarding juror
misconduct “great weight” on review. White, 116 F.3d at
928. After conducting two hearings, the District Court
carefully analyzed the jurors’ testimony, made detailed
credibility assessments, and set forth factual findings
supported by the record. The court was well within its
discretion to conclude that there was insufficient evidence
substantiating the allegations. Juror 7 and Juror 2269
consistently denied the alleged misconduct and corroborated
each other’s testimony. In contrast, Alternate Juror 2
admitted that she had no proof of Juror 7’s inappropriate
relationship with the marshal. Where, as here, “the allegation
of an improper communication was countered by substantial
evidence that no such communication had occurred,” the
District Court “was not required to pursue the matter any
further.” Id. at 929.
We will not disturb the District Court’s well-supported
determination that the alleged improper juror activity did not
occur.
XI
At the conclusion of the first post-verdict hearing on juror
misconduct, Tommy Edelin moved for the District Court
43
judge to recuse. Edelin allegedly had observed the judge
“lead the witness” by “subtly shaking his head across in a no
gesture or up and down in a yes gesture as the question was
being responded to by the juror.” June 27, 2003 Hearing Tr.
at 50. The District Court denied the motion for recusal. At
the start of the second post-verdict juror hearing, Edelin
renewed his motion and added another ground for recusal: the
judge’s “longstanding professional relationship” with the
marshal implicated in the allegations of improper juror
activity. July 11, 2003 Hearing Tr. at 3-4. The District Court
again denied the motion.
On appeal, the defendants submit that the judge had an
obligation to recuse himself from adjudication of the juror
misconduct allegations pursuant to 28 U.S.C. § 455(a) and
§ 455(b)(1). We review a district court judge’s refusal to
recuse for abuse of discretion. SEC v. Loving Spirit
Foundation Inc., 392 F.3d 486, 493 (D.C. Cir. 2004).
Section 455(a) provides that a judge “shall disqualify
himself in any proceeding in which his impartiality might
reasonably be questioned.” Under that provision, “a showing
of an appearance of bias or prejudice sufficient to permit the
average citizen reasonably to question a judge’s impartiality is
all that must be demonstrated to compel recusal.” United
States v. Heldt, 668 F.2d 1238, 1271 (D.C. Cir. 1981).
The defendants argue that any reasonable observer would
question the impartiality of a judge who is telegraphing
answers to a testifying juror. We do not disagree with that
general statement. But apart from Tommy Edelin’s
unsubstantiated allegation, there was no evidence that the
judge was in fact leading the juror through the judge’s body
language or demeanor. As the Government points out, only
Edelin “claimed to have witnessed this behavior; no one else
44
corroborated his claim,” including Edelin’s own attorneys.
Gov’t Br. 205. Nor did any other defendant join Edelin’s
motion for recusal. The utter lack of corroboration is
significant given that numerous attorneys and defendants
were present at the hearing.
Section 455(b)(1) provides that a judge “shall also
disqualify himself” where “he has a personal bias or prejudice
concerning a party, or personal knowledge of disputed
evidentiary facts concerning the proceeding.”
The defendants contend that the judge’s longstanding
relationship with the marshal required the judge to recuse
under Sections 455(a) and (b)(1). The Government maintains
that Tommy Edelin’s recusal motion on that ground was
untimely because he raised the issue only at the court’s
second hearing on juror misconduct. We need not resolve the
timeliness question. Assuming for the sake of argument that
the motion was timely, we conclude that the District Court did
not abuse its discretion in denying recusal.
The defendants acknowledge that “a duty to recuse does
not arise simply because a case involves a marshal with whom
a judge has no special relationship.” Defs.’ Br. 112. The
defendants therefore argue that the judge and the marshal had
a special relationship: The marshal “was the chief marshal
assigned to the courtroom providing protection to both the
judge and jury.” Defs.’ Br. 113-14. But there is no evidence
that the judge and marshal’s interactions amounted to
anything more than ordinary contact incident to their
respective courtroom roles. In short, the mere fact that the
judge and the marshal interacted in the course of performing
their respective duties is insufficient to create a reasonable
question regarding the judge’s impartiality. See United States
v. Faul, 748 F.2d 1204, 1211 (8th Cir. 1984) (“Assuming that
45
the deceased marshals did have contact with the court by
providing security, it does not follow that the judge had a
professional or personal relationship with either marshal
sufficient to demonstrate personal prejudice bias.”) (internal
quotation marks omitted); United States v. Sundrud, 397 F.
Supp. 2d 1230, 1236 (C.D. Cal. 2005) (“a casual relationship
with a victim officer who provides court security does not
require recusal”).
The defendants failed to carry their burden of
establishing the appearance or existence of judicial bias. The
District Court judge did not abuse his discretion by denying
the motion to recuse.
XII
Four months into the trial, Tommy Edelin raised concerns
to the District Court regarding his lead counsel, James
Rudasill. The court had appointed Rudasill and two other
attorneys, Pleasant Brodnax and William Kanwisher, to
represent Edelin. Edelin informed the court that he distrusted
Rudasill’s ability to represent his interests and complained
about a lack of cohesion in his defense team. Over a 10-day
period, Edelin made several requests to the District Court to
remove Rudasill. Because the District Court determined that
Rudasill had not “done anything wrong or committed any
misconduct,” the court declined to discharge him. Aug. 16,
2001 Bench Conference Tr. at 4.
Tommy Edelin now argues that the District Court’s
refusal to discharge Rudasill violated Edelin’s right to the
assistance of counsel. He says that in seeking to remove
Rudasill, he did not wish to proceed pro se but rather to
proceed with Brodnax and Kanwisher as his attorneys. We
review the denial of a motion to replace court-appointed
46
counsel for abuse of discretion. See United States v. Graham,
91 F.3d 213, 221 (D.C. Cir. 1996).
An indigent criminal defendant who seeks court-
appointed counsel does not have a constitutional right to
choose his attorney; “he has only the right to effective
representation.” Id. at 217. Effective representation “may be
endangered if the attorney-client relationship is bad enough.”
Id. at 221. When a defendant asks the district court to replace
appointed counsel, the court “generally has an obligation to
engage the defendant in a colloquy” on the record
“concerning the cause of the defendant’s dissatisfaction with
his representation.” Id. The defendant bears the burden of
showing good cause to replace appointed counsel, “such as a
conflict of interest, an irreconcilable conflict, or a complete
breakdown in communication between the attorney and the
defendant.” Smith v. Lockhart, 923 F.2d 1314, 1320 (8th Cir.
1991).
Here, the District Court held multiple colloquies on the
record in order to determine the reasons for Tommy Edelin’s
dissatisfaction with Rudasill. Although Edelin complained of
a breakdown in trust and communication, the record does not
suggest that the attorney-client relationship had deteriorated
to the point where Rudasill could not provide effective
assistance of counsel. Indeed, during the court’s final bench
conference on the matter, Rudasill reported that he had met
with Edelin for several hours the night before in “a frank and
productive meeting.” Aug. 16, 2001 Bench Conference Tr. at
4. Rudasill confirmed that he was able to communicate with
and represent Edelin effectively. Kanwisher, moreover, stated
that “the defense itself could be compromised if in fact Mr.
Rudasill was to be discharged” and that Rudasill’s discharge
would render Kanwisher’s own representation of Edelin
ineffective. Aug. 9, 2001 Proceeding Tr. at 17601-02. In
47
those circumstances, the District Court did not abuse its
discretion in denying Edelin’s motion to discharge Rudasill.
XIII
The defendants also challenge their sentences. The
defendants were sentenced before the Supreme Court’s
landmark Sixth Amendment decision in United States v.
Booker, 543 U.S. 220 (2005). That decision changed the
previously mandatory Sentencing Guidelines into advisory
Sentencing Guidelines.
At sentencing, two of the defendants (Earl Edelin and
Henry Johnson) raised Sixth Amendment objections to the
then-mandatory Sentencing Guidelines. On this record, we
cannot say with sufficient confidence that the District Court
would have imposed the same sentences under the advisory
Guidelines. Under Booker, Earl Edelin and Johnson are
therefore entitled to vacatur of their sentences and to
resentencing under the advisory Sentencing Guidelines. Two
of the defendants (Bryan Bostick and Shelton Marbury) did
not raise the Sixth Amendment issue in the District Court.
We must apply the plain error standard. Under that standard,
we cannot say with sufficient confidence that the District
Court would have imposed the same sentences under the
advisory Guidelines. Bostick and Marbury are therefore
entitled to what our cases have termed a Booker remand of the
record to determine whether the District Court would impose
different sentences, more favorable to the defendants, under
the advisory Guidelines. See United States v. Coles, 403 F.3d
764, 770 (D.C. Cir. 2005). The sentence of the remaining
defendant, Tommy Edelin, is affirmed. Based on his
conviction for continuing criminal enterprise, which we
affirm in this decision, Tommy Edelin received a statutorily
mandated life sentence. See 21 U.S.C.
48
§§ 848(b)(1), (b)(2)(A). Booker deals only with the
Guidelines and does not affect Tommy Edelin’s sentence, as
he has expressly conceded on appeal. See Defs.’ Br. 262
n.92; see also United States v. Carson, 455 F.3d 336, 384
(D.C. Cir. 2006).
In the interest of judicial economy on remand, we will
also consider here the remaining four defendants’ challenges
to the District Court’s Guidelines calculations, as the
Guidelines still play a role in post-Booker sentencing. See
Gall v. United States, 552 U.S. 38, 51 (2007).
In order to calculate a defendant’s sentence under the
Sentencing Guidelines, the district court must determine the
defendant’s “relevant conduct.” U.S.S.G. § 1B1.3. In a
conspiracy case, relevant conduct includes both acts
committed directly by the defendant and “all reasonably
foreseeable acts and omissions of others in furtherance of the
jointly undertaken criminal activity.” U.S.S.G.
§ 1B1.3(a)(1)(B); see United States v. Mellen, 393 F.3d 175,
182 (D.C. Cir. 2005). The scope of a defendant’s jointly
undertaken criminal activity “is not necessarily the same as
the scope of the entire conspiracy, and hence relevant conduct
is not necessarily the same for every participant” in the
conspiracy. U.S.S.G. § 1B1.3 cmt. n.2.
Marbury, Johnson, Earl Edelin, and Bostick maintain that
the District Court improperly calculated their Guidelines
offense level on the Count One drug distribution conspiracy
by holding each of them responsible for distributing the
maximum amount of crack cocaine (1.5 kilograms or more)
under the 2001 Guidelines, without first making sufficiently
particularized factual findings in support of each defendant’s
relevant conduct.
49
The problem for the defendants is that the District Court
also found each of them responsible for several murders
committed in furtherance of the Count One drug conspiracy.
Those murders maximized each defendant’s offense level (to
level 43) under the Guidelines for the Count One conspiracy.
Therefore, any error with respect to the drug quantity findings
had no impact on the defendants’ Guidelines offense level for
the Count One conspiracy. The defendants in turn claim that
the District Court did not make sufficient findings or
otherwise erred in attributing several murders to each of them.
But those arguments are entirely without merit, as we will
now explain.
First, as to Marbury, the District Court found that “the
murders of Anthony Payton, Damien Jennifer, Robert Keys,
Sherman Johnson, and Edgar Watson were reasonably
foreseeable to defendant Marbury and that he is properly held
accountable for these murders as acts in furtherance of the
narcotics conspiracy charged in Count One.” Defs.’ Br. 287.
The Sentencing Guidelines provide that a defendant’s drug
offense level will be increased to the maximum offense level
of 43 if “a victim was killed under circumstances that would
constitute murder under 18 U.S.C. § 1111.” U.S.S.G.
§ 2D1.1(d)(1); see also U.S.S.G. § 2A1.1(a). The District
Court therefore increased Marbury’s offense level for the
Count One drug conspiracy to 43.
Marbury contends that the District Court failed to make
sufficiently detailed or particularized findings that the
murders were foreseeable to him and within the scope of his
conspiratorial agreement. Although the District Court cited
the trial testimony of five named witnesses, Marbury asserts
that the court should have cited specific portions of the trial
transcript in support of its conclusion. He further protests that
the five murders for which he was held responsible were not
50
committed in furtherance of the Count One drug distribution
scheme but rather were part of a separate conspiracy to
murder members of the Stanton Terrace Crew. As a result, he
argues, the murders should not affect his offense level for the
Count One drug conspiracy.
Marbury’s arguments are meritless. Marbury directly
participated in and was convicted of two of the five murders
for which he was held accountable – the killing of Payton and
Keys. And as discussed in Part II above, the record amply
supports the inference that the violent campaign against the
Stanton Terrace Crew (including the murders of Payton and
Keys) was undertaken at least in part to further the profits and
operations of the Count One drug conspiracy. Applying clear
error review to the District Court’s findings of fact and giving
“due deference” to the District Court’s application of the
Guidelines to the facts, see United States v. Fahnbulleh, 752
F.3d 470, 481 (D.C. Cir. 2014), Marbury’s murders of Payton
and Keys result in the maximum offense level of 43 for the
drug conspiracy.
Second, like Marbury, Johnson objects that the District
Court erroneously held him responsible for several murders in
furtherance of the Count One drug conspiracy. The District
Court applied U.S.S.G. § 2D1.1(d)(1) based on Johnson’s
convictions for the murder of Payton and for use of a firearm
in the murder of Edgar Watson. The application of U.S.S.G.
§ 2D1.1(d)(1) automatically increased Johnson’s offense level
for the Count One drug conspiracy to 43, the maximum
offense level. Johnson resurrects his sufficiency of the
evidence claim, arguing that the Stanton Terrace murders
(including the murders of Payton and Watson) comprised a
separate conspiracy unrelated to the drug distribution scheme.
Given the clear sufficiency of the evidence supporting a
contrary conclusion, we uphold the District Court’s
51
conclusion that Johnson’s murders of Payton and Watson
result in the maximum offense level of 43 for the Count One
drug conspiracy.
Third, echoing his co-defendants, Earl Edelin asserts that
the District Court erred in holding him accountable for
murders in furtherance of the Count One conspiracy.
Crediting the trial testimony of six witnesses, the District
Court found that ten murders committed by Earl Edelin’s co-
conspirators were reasonably foreseeable to Earl Edelin and in
furtherance of the Count One drug distribution conspiracy.
Including those murders in Earl Edelin’s relevant conduct
automatically results in the maximum offense level of 43.
Earl Edelin submits that the District Court erred by failing to
cite specific portions of the trial transcript establishing that
those murders were both foreseeable to him and within the
scope of his particular conspiratorial agreement. But the
District Court did adopt findings of fact from the presentence
report and, by doing so, made specific findings about Earl
Edelin’s being a driving force in the violence and in conflicts
with rival drug crews. And the record contains overwhelming
evidence that the murders fell within Earl Edelin’s jointly
undertaken criminal activity in furtherance of the Count One
conspiracy.
Five of the murders that the District Court counted as
relevant conduct (Anthony Payton, Damien Jennifer, Robert
Keys, Sherman Johnson, and Edgar Watson), for example,
were directed against members of the Stanton Terrace Crew.
Although Earl Edelin did not physically participate in those
murders, he was directly involved in efforts to kill Stanton
Terrace Crew members. As discussed earlier, multiple
witnesses testified that Earl Edelin taught his co-conspirators
killing techniques to use against the Stanton Terrace Crew,
provided guns for use in the shootings, kept tabs on the
52
conflict, and shared information regarding the whereabouts of
Stanton Terrace Crew members. Moreover, the testimony
indicates that he did so in order to protect his network’s
distribution activities and drug sales. In a similar vein, two of
the other murders (Arion Wilson and Charles Morgan) for
which Earl Edelin was held accountable occurred during an
18-month conflict with another rival drug crew. Witnesses
testified that during that dispute, Earl Edelin provided
information a few times a week about where members of the
enemy crew were located and the cars they were driving. He
also supplied his co-conspirators with firearms during the
conflict. Given that evidence, the District Court permissibly
concluded that those murders were reasonably foreseeable to
Earl Edelin and within the scope of his particular
conspiratorial agreement. Earl Edelin’s accountability for any
one of those murders results in the maximum Guidelines
offense level of 43 for the Count One drug conspiracy. See
U.S.S.G. §§ 2A1.1(a), 2D1.1(d)(1).
Fourth, Bostick’s challenge to the District Court’s
calculation of his Guidelines sentence fails for much the same
reasons. The jury found Bostick guilty of the first degree
murders of Rodney and Volante Smith. In addition, the jury
found that both murders were racketeering acts committed in
furtherance of the Count Three RICO conspiracy. First
degree murder committed as a racketeering act results in the
maximum Guidelines offense level of 43. See U.S.S.G.
§§ 2A1.1, 2E1.1. Bostick maintains that there was
insufficient evidence that the Smith murders were committed
in furtherance of a conspiracy to participate in a RICO
enterprise. But as discussed in Part II above, the record easily
supports the conclusion that Bostick committed the murders
in order to improve his standing in Tommy Edelin’s
racketeering and drug distribution conspiracy.
53
The District Court also found Bostick responsible for the
murders of Arion Wilson and Charles Morgan as jointly
undertaken criminal activity in furtherance of the Count One
drug conspiracy and the Count Three RICO conspiracy.
Bostick objects that the District Court failed to explain how
those murders were foreseeable to Bostick or within the scope
of his conspiratorial agreement. But the District Court
explicitly addressed that issue at sentencing. Wilson and
Morgan were killed by Bostick’s co-conspirator, Thaddeus
Foster, during an 18-month feud with an enemy drug crew.
Tommy Edelin had ordered his associates to kill the members
of the rival crew. In 1994, Bostick, Foster, and another co-
conspirator caught sight of a gold van, which they identified
as belonging to enemy crew member Kevin Clark. They fired
numerous shots at the van’s occupants, who survived the
attack. A few weeks later, Foster spotted a gold van at a rest
stop in North Carolina, which he again identified as Clark’s
van. Foster shot and killed the van’s occupants, Wilson and
Morgan. In holding Bostick accountable for those murders,
the District Court explained that it “was foreseeable that
anyone in this van would be killed if the van was identified as
Clark’s.” June 14, 2004 Sentencing Tr. at 7. Given Bostick’s
active participation in the conflict and in particular the first
attack on a gold van, the District Court did not err by holding
him responsible for the Wilson and Morgan murders as jointly
undertaken criminal conduct in furtherance of the Count One
drug conspiracy and the Count Three RICO conspiracy.
In short, even if the District Court erred in not explaining
or justifying the drug quantities attributed to each defendant –
an issue we do not decide – none of the defendants can show
prejudice from any such error because the murders themselves
resulted in the maximum Guidelines offense level of 43, and
the District Court made sufficient findings and appropriately
explained its conclusions with regard to the murders.
54
XIV
Defendants Bryan Bostick, Henry Johnson, and Shelton
Marbury appeal the District Court’s orders requiring them to
pay restitution to the families of their murder victims. The
District Court ordered Bostick to pay $4,688 in funeral
expenses to the mother of one of his murder victims. It
ordered Johnson and Marbury to pay about $18,380 in funeral
expenses and lost wage earnings to the mother of one of their
victims. And it ordered Marbury to pay $6,589.83 in funeral
expenses to the mother of another of his victims. For each of
the defendants, the District Court ordered restitution in the
amount recommended by the Probation Office in the
presentence report. Because the defendants did not object to
the restitution orders in the District Court, we review for plain
error.
The Mandatory Victims Restitution Act of 1996 provides
that a defendant convicted of an offense resulting in the
victim’s death must “pay an amount equal to the cost of
necessary funeral and related services.” 18 U.S.C.
§ 3663A(b)(3). In addition, the defendant must “reimburse
the victim for lost income and necessary child care,
transportation, and other expenses incurred during
participation in the investigation or prosecution of the offense
or attendance at proceedings related to the offense.” Id.
§ 3663A(b)(4). The court “shall order the probation officer to
obtain and include in its presentence report, or in a separate
report, as the court may direct, information sufficient for the
court to exercise its discretion in fashioning a restitution
order.” Id. § 3664(a).
The defendants claim that the District Court erred by
adopting the restitution amounts recommended by the
55
Probation Office without requesting specific computations of
those amounts. But as the Government points out, Rule
32(i)(3)(A) of the Federal Rules of Criminal Procedure
provides that the sentencing court “may accept any
undisputed portion of the presentence report as a finding of
fact.” The defendants did not dispute the restitution amounts
set forth in their presentence reports. As a result, they cannot
show that the District Court erred, let alone plainly erred, by
ordering restitution in those amounts.
XV
We now touch on several issues that all parties agree
require remand. In particular, certain of the defendants’
convictions should be vacated or merged, and certain
technical or clerical corrections to the judgment should be
made.
First, a clerical error: Shelton Marbury’s sentence for
Count 22 (assault with intent to murder while armed of
Darnell Murphy) should be vacated because he was acquitted
of that count.
Second, Bryan Bostick’s convictions on Counts 64 and
65 (possession of a firearm during a crime of violence under
D.C. Code § 22-4504(b)) should merge, and one should be
vacated. Under D.C. law, the merger of multiple convictions
for possession of a firearm during a crime of violence “is
proper if they arose out of a defendant’s uninterrupted
possession of a single weapon during a single act of
violence.” Appleton v. United States, 983 A.2d 970, 978
(D.C. 2009) (internal quotation marks omitted). Because
Bostick’s convictions on Counts 64 and 65 arose out of his
uninterrupted possession of a weapon during the murders of
Rodney and Volante Smith, merger is appropriate.
56
Third, Henry Johnson’s and Marbury’s convictions on
Counts 69 and 70 (possession of a firearm during a crime of
violence under D.C. Code § 22-4504(b)) should merge, and
one conviction should be vacated for each defendant. The
convictions arose out of those defendants’ uninterrupted
possession of firearms during the murder of Anthony Payton
and the assault with intent to murder of Darnell Murphy.
Fourth, Marbury’s convictions on Counts 71 and 72
(possession of a firearm during a crime of violence under
D.C. Code § 22-4504(b)) should merge, and one should be
vacated. Both convictions arose out of Marbury’s
uninterrupted possession of a firearm during the assault with
intent to murder of police officers Kerbin Johnson and Darren
Marcus.
Fifth, Johnson’s convictions on Counts 56 and 57 should
merge, and one should be vacated. Counts 56 and 57 charge
the use of a firearm during and in relation to a crime of
violence or a drug trafficking crime under 18 U.S.C. § 924(c).
Merger is appropriate where multiple convictions under
Section 924(c) arise from “only one use of the firearm.”
United States v. Wilson, 160 F.3d 732, 749 (D.C. Cir. 1998).
Both of Johnson’s convictions on Counts 56 and 57 arose
from his single use of a firearm during the murder of Edgar
Watson and the attempted murder of Dionne Johnson.
Sixth, Tommy Edelin’s conviction of the Count One drug
conspiracy should merge into his conviction of the Count
Two continuing criminal enterprise. A drug conspiracy under
21 U.S.C. § 846 is a lesser included offense of continuing
criminal enterprise under 21 U.S.C. § 848. See Rutledge v.
United States, 517 U.S. 292, 300 (1996). Because “Congress
intended to authorize only one punishment,” Edelin’s Section
57
846 conviction, as well as its concurrent sentence, “is
unauthorized punishment for a separate offense and must be
vacated.” Id. at 307 (internal quotation marks omitted).
Seventh, Tommy Edelin’s judgment should reflect that
his convictions on Counts 86, 87, and 88 are for the unlawful
use of a communication facility under 21 U.S.C. § 843(b).
The judgment lists Counts 86 and 87 under “Possession of a
Firearm During a Crime of Violence” and Count 88 under
“Distribution of Five Grams or More of Cocaine Base.”
Eighth, the “Statement of Reasons” portion of Tommy
Edelin’s judgment should indicate that the District Court did
not waive (due to inability to pay) the $100,000 fine imposed
on Edelin. The District Court imposed the fine during its oral
delivery of Edelin’s sentence. The court did not indicate that
the fine would be waived.
***
We affirm the judgments of conviction. Under Booker,
two of the defendants (Earl Edelin and Henry Johnson) are
entitled to vacatur of their sentences and to resentencing
under the advisory Sentencing Guidelines. Two of the
defendants (Bryan Bostick and Shelton Marbury) are entitled
to what our cases have termed a Booker remand of the record
to determine whether the District Court would impose
different sentences, more favorable to the defendants, under
the advisory Guidelines. The sentence of the remaining
defendant, Tommy Edelin, is affirmed. We also remand for
the technical corrections noted in Part XV of this opinion.
So ordered.