United States v. Larry Wilkerson ( 2020 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 3, 2020 Decided July 24, 2020
No. 10-3037
UNITED STATES OF AMERICA,
APPELLEE
v.
LARRY WILKERSON,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:00-cr-00157-15)
Sebastian K.D. Graber, appointed by the court, argued the
cause for appellant. With him on the briefs was Timothy Cone,
appointed by the court.
Nicholas P. Coleman, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Jessie K. Liu,
U.S. Attorney, at the time the brief was submitted, and
Elizabeth Trosman and Suzanne Grealy Curt, Assistant U.S.
Attorneys.
Before: SRINIVASAN, Chief Judge, HENDERSON, Circuit
Judge, and RANDOLPH, Senior Circuit Judge.
2
Opinion for the Court filed by Chief Judge SRINIVASAN.
SRINIVASAN, Chief Judge: In November 2000, a grand
jury indicted appellant Larry Wilkerson and fifteen
codefendants on 158 counts related to a violent narcotics-
distribution conspiracy that operated in D.C. throughout the
1990s. Appellant was charged with conspiracy to distribute
and possess with intent to distribute cocaine, cocaine base,
heroin, and marijuana, conspiracy to participate in a racketeer-
influenced corrupt organization, four counts of aiding and
abetting first-degree murder, four corresponding counts of
aiding and abetting a continuing criminal enterprise (CCE)
murder, and one count of aiding and abetting first-degree
felony murder.
Many of appellant’s codefendants pled guilty and some
also agreed to cooperate with the government. The rest went
to trial in groups. “Group One” consisted of six defendants,
including the conspiracy’s leaders, Kevin Gray and Rodney
Moore. That trial concerning the Gray-Moore conspiracy
ended in guilty verdicts and substantial sentences, which this
court affirmed in part and vacated in part in United States v.
Moore, 651 F.3d 30 (D.C. Cir. 2011), aff’d in part sub nom.
Smith v. United States, 568 U.S. 106 (2013). “Group Two”
consisted of six more defendants and similarly resulted in
guilty verdicts and lengthy sentences, which this court affirmed
in part and reversed in part in United States v. McGill, 815 F.3d
846, 877 (D.C. Cir. 2016), cert. denied, 138 S. Ct. 58 (2017).
Appellant was tried separately from his codefendants. On
September 22, 2004, a jury found appellant guilty on all counts
except one count of aiding and abetting first-degree murder and
a corresponding count of aiding and abetting CCE murder. On
April 20, 2010, the district court sentenced appellant to life
imprisonment.
3
Appellant now appeals. He raises a number of challenges,
including to the district court’s dismissal of a juror during
deliberations and to the district court’s rejection of his motion
to dismiss the RICO conspiracy count as time-barred. We
reject his challenges and affirm his convictions and sentence.
I.
We first consider the district court’s dismissal of a juror
who, after deliberations began, expressed her disagreement
with the applicable law and her inability to apply it. Appellant
contends that the district court’s dismissal of the juror violated
his Sixth-Amendment right to conviction by a unanimous jury.
We conclude that the district court did not err.
A.
On September 8, 2004, after two months of trial, the jury
began deliberations. United States v. Wilkerson, 656 F. Supp.
2d 1, 2 (D.D.C. 2009) (“Wilkerson I”). Three-and-a-half days
into deliberations, the district judge received the following
handwritten note from a juror:
“I, juror number 0552, request that I be replaced with an
alternate in the deliberation of Larry Wilkerson. I strongly
disagree with the laws and instructions that govern this
deliberation, and I cannot follow them. Because I feel so
strongly about this, it may affect my decisions in this
matter. In other words, a possible bias decision. In
addition, I am experiencing emotional and mental distress.
For this alone, I felt it was enough for me to ask for a
replacement. I would not be asking for this request, if I
didn’t feel that this was a serious issue. Please take this
request under strong consideration. I apologize, for the
4
delay in this request, but if it is at all possible please
remove me from this deliberation. Sincerely, Juror 0552.”
Id.The district court decided to ask Juror 0552 about her note.
The following colloquy ensued:
COURT: All right. Thank you. In your note I just want
to review it with you and ask you a couple of questions
about it. And I cannot go into your deliberations or what’s
going on in the jury room. You understand that? I don’t
want to hear anything about the deliberations or intrude in
any way, but because of your note I need to ask you a
couple of questions. . . . You said that you request to be
replaced because you strongly disagree with the laws and
instructions that govern this deliberation and you cannot
follow them. In other words, I just need to ask you when
you make that statement you mean the instructions and the
law that I’ve given to you in this case we’re talking about?
JUROR 0552: Yes.
COURT: And although you took an oath to follow the
instructions and the law you feel you cannot do so; is that
fair?
JUROR 0552: Yes.
COURT: And you were very fair about it. You wrote I
feel so strongly about this it may affect my decisions in
this matter. In other words, I may have possible bias
decision. And because you’re disagreeing with the law, is
that what you’re saying?
JUROR 0552: Yes.
COURT: You also said you’re feeling emotional and
mental distress. You felt that alone was enough to ask for
replacement. Is that just because of deliberations you
mean? I don’t want to get --
5
JUROR 0552: The whole thing.
COURT: The whole case?
JUROR 0552: The whole case.
COURT: Let me ask you about the law. You’ve read the
instructions. You’ve heard my law [sic] we’re talking
about. And it’s your opinion you cannot follow the law
and apply it in this case? Is that what you’re saying?
JUROR 0552: I cannot follow it because I do not agree
with it.
COURT: You do not agree with the law?
JUROR 0552: No.
COURT: I don’t want to get in your deliberations now.
JUROR 0552: Okay.
COURT: You just don’t agree with the law?
JUROR 0552: Uh-uh.
COURT: And you came to this belief after seriously
considering you say here that you didn’t, you know, you
wouldn’t ask for this but you didn’t feel you felt it was
such a serious issue?
JUROR 0552: It is serious. We’re dealing with
somebody’s life.
COURT: And under the law that I’ve given you you
disagree with that? Is that what you’re saying?
JUROR 0552: Yes.
Id. at 3.
After some further discussion with counsel, the district
court decided to dismiss Juror 0552. Id. Based on Juror 0552’s
note, the above colloquy with her, the brevity of the jury’s
deliberations relative to the length and complexity of the trial,
and the lack of any substantive jury questions, the district court
found as a matter of fact that Juror 0552 sought to be dismissed
because she disagreed with the applicable law rather than
6
because of any concerns about the evidence. Trial Tr. 36–38,
Sept. 15, 2004, 8 J.A. 2551–53.
Instead of proceeding with eleven jurors, the district court
replaced Juror 0552 with an alternate. Wilkerson I, 656 F.
Supp. 2d at 4 n.3. On September 22, 2004, the reconstituted
jury returned guilty verdicts on all counts except one first-
degree-murder count and an associated CCE murder count.
Appellant moved for a new trial, arguing that the district court
had violated his Sixth-Amendment rights by dismissing Juror
0552. The district court denied the motion. Id. at 10–11.
B.
Appellant renews his contention that the dismissal of Juror
0552 violated his Sixth-Amendment rights. Appellant
challenges both the district court’s finding that Juror 0552’s
concerns were with the law, not the evidence, and the district
court’s conclusion that disagreement with the law is a valid
ground for dismissal. We disagree with both challenges. We
hold that intent to disregard the law constitutes a valid ground
for dismissing a juror and that the district court permissibly
dismissed Juror 0552 on that basis.
1.
Federal Rule of Criminal Procedure 23(b) authorizes
dismissal of a juror during deliberations for “good cause.” Fed.
R. Crim. P. 23(b)(3). “A variety of issues” can constitute
“good cause” to excuse a juror, “including illness, family
emergency, or, . . . jury misconduct.” United States v. McGill,
815 F.3d 846, 866 (D.C. Cir. 2016) (internal quotation marks
omitted). “[A]ction by jurors that is contrary to their
responsibilities” can constitute good cause. Id. (internal
quotation marks omitted).
7
Because a district court, “based on its unique perspective
at the scene, is in a far superior position than [a court of
appeals] to appropriately consider allegations of juror
misconduct,” we review a district court’s dismissal of a juror
“only for an abuse of discretion.” Id. at 867 (quoting United
States v. Boone, 458 F.3d 321, 329 (3d Cir. 2006). The Sixth
Amendment, however, constrains that discretion. Id. This case
presents a question we have previously left open: whether the
Sixth Amendment precludes dismissing a juror “for refusing to
apply the relevant substantive law.” United States v. Brown,
823 F.2d 591, 597 (D.C. Cir. 1987). We now answer that
question in the negative: the Sixth Amendment does not afford
a defendant the right to a juror who is determined to disregard
the law.
We have already decided as much with regard to trial
proceedings that come before jury deliberations. In particular,
we have held that the Sixth Amendment provides no right to a
jury instruction on nullification. United States v. Dougherty,
473 F.2d 1113, 1130–37 (D.C. Cir. 1972). As we later
explained, a “jury has no more ‘right’ to find a ‘guilty’
defendant ‘not guilty’ than it has to find a ‘not guilty’ defendant
‘guilty.’” United States v. Washington, 705 F.2d 489, 494
(D.C. Cir. 1983). Rather, “it is the duty of juries in criminal
cases to take the law from the court, and apply that law to the
facts as they find them to be from the evidence.” Sparf v.
United States, 156 U.S. 51, 102 (1895). Were it otherwise,
juries would “become a law unto themselves,” such that “our
government [would] cease to be a government of laws, and
[would] become a government of men.” Id. at 101, 103. For
the same reasons, a juror intent on disregarding the law may be
dismissed for cause during voir dire. See, e.g., Adams v. Texas,
448 U.S. 38, 45 (1980).
8
The Sixth Amendment provides no more right to a juror
determined to disregard the law during deliberations than it
does beforehand. The Second Circuit thus has “categorically
reject[ed] the idea that, in a society committed to the rule of
law, . . . courts may permit [jury nullification of the law] to
occur when it is within their authority to prevent.” United
States v. Thomas, 116 F.3d 606, 614 (2d Cir. 1997). The court
reasoned that, “[i]nasmuch as no juror has a right to engage in
nullification” of the applicable law, district courts “have the
duty to forestall or prevent such conduct” if it can be done
without “interfer[ing] with guaranteed rights or the need to
protect the secrecy of jury deliberations.” Id. at 616. The
Third, Ninth, and Eleventh Circuits agree, and we are aware of
no court of appeals to conclude otherwise. See United States
v. Fattah, 914 F.3d 112, 149 (3d Cir. 2019); United States v.
Christensen, 828 F.3d 763, 806 (9th Cir. 2015); United States
v. Oscar, 877 F.3d 1270, 1287 (11th Cir. 2017). We join our
sister circuits’ unanimous view.
It is true, as we have recognized, that juries might
sometimes “abuse their power and return verdicts contrary to
the law and instructions of the court.” Washington, 705 F.2d
at 494. But “[s]uch verdicts are lawless, a denial of due process
and constitute an exercise of erroneously seized power.” Id.The Sixth Amendment provides a defendant no right to such an
outcome. On the contrary, when a juror’s intent to disregard
the law comes to the attention of the court, “it would be a
dereliction of duty for a judge to remain indifferent.” Thomas,
116 F.3d at 616. Consequently, we hold that dismissal of a
juror during deliberations for intent to disregard the law does
not violate a defendant’s Sixth-Amendment rights.
9
2.
While intent to disregard the applicable law constitutes a
valid basis for dismissal, “a court may not dismiss a juror
during deliberations if the request for discharge stems from
doubts the juror harbors about the sufficiency of the
government’s evidence.” Brown, 823 F.2d at 596. If it were
otherwise, “the government [could] obtain a conviction even
though a member of the jury . . . thought that the government
had failed to prove its case,” rendering a defendant’s Sixth-
Amendment right to a unanimous verdict “illusory.” Id.;
accord Thomas, 116 F.3d at 621. A court thus might face the
“often difficult distinction between the juror who favors
acquittal because he is purposefully disregarding the court’s
instructions on the law, and the juror who is simply
unpersuaded by the Government’s evidence.” Thomas, 116
F.3d at 621. “[A]n effort to act in good faith may easily be
mistaken” for “purposeful disregard of the law.” Id. at 618.
Moreover, an effort by the court to clarify whether a juror
intends to disregard the law or simply finds the evidence
unpersuasive runs the risk of “intrud[ing] on the secrecy of the
jury’s deliberations.” Brown, 823 F.2d at 596. Navigating the
tension between the “duty to dismiss jurors for misconduct”
and the “equally, if not more, important [duty to] safeguard[]
the secrecy of jury deliberations” is a “delicate and complex
task.” Thomas, 116 F.3d at 618. “[A] court may not delve
deeply into a juror’s motivations because [doing so may]
intrude on the secrecy of the jury’s deliberations.” Brown, 823
F.2d at 596.
Cognizant of those competing considerations, this court in
Brown decided to “err[] on the side of Sixth-Amendment
caution.” McGill, 815 F.3d at 867. We held that, “if the record
evidence discloses any possibility that the request to discharge
10
stems from the juror’s view of the sufficiency of the
government’s evidence, the court must deny the request.”
Brown, 823 F.2d at 596. Applying that standard to the facts in
Brown, we rejected the juror’s dismissal because the record
“indicate[d] a substantial possibility that [the juror] requested
to be discharged because he believed that the evidence offered
at trial was inadequate to support a conviction.” Id. Several
other circuits have since adopted our approach in Brown. See,
e.g., United States v. Kemp, 500 F.3d 257, 304 (3d Cir. 2007);
United States v. Abbell, 271 F.3d 1286, 1302 (11th Cir. 2001);
United States v. Symington, 195 F.3d 1080, 1087 (9th Cir.
1999); Thomas, 116 F.3d at 622.
The district court here applied the Brown standard, finding
no substantial possibility that Juror 0552’s request to be
dismissed stemmed in any way from her views about “the
sufficiency of the government’s evidence.” Brown, 823 F.2d
at 596. Rather, the juror asked “to be replaced because she
strongly disagrees with the law[s] that govern this deliberation
and cannot follow them.” Trial Tr. 37, Sept. 15, 2004, 8 J.A.
2552. When defense counsel suggested that the juror might
have had evidence-based reservations about “the law applied
to the facts,” as opposed to concerns about the law alone, the
court rejected that possibility: “Her note was very clear. She
wants to be relieved of the duty because she disagree[s] with
the law.” Id. at 32, 8 J.A. 2547. And she so explained, the
court found, “without any reference whatsoever to any
evidentiary concerns or the strength of the government’s
evidence or the dissatisfaction with the government’s
presentation of the case.” Id. at 38, 8 J.A. 2553. Instead, “her
only expression [was] that she cannot follow the law and she
disagrees with it and she reaffirmed that orally.” Id. The court
was “satisfied beyond a reasonable doubt as a judge of her
credibility from her statements in the letter and her statements
on the record that she will not follow the law[s], that she
11
strongly disagrees with them and she’ll not follow them
contrary to her oath of office.” Id. The court thus found no
substantial possibility of an evidence-based concern. Id.
We see no basis to set aside the district court’s finding to
that effect. As the court explained, when Juror 0552 sent her
note, the jury had yet to submit any substantive questions and
had been deliberating for only three days, after a months-long
trial involving an extensive amount of evidence covering
numerous counts and a correspondingly complex set of
instructions and verdict form. That context, the court
understandably believed, was not suggestive of a hold-out juror
based on the evidence. And more importantly, the juror’s
statements did not indicate any evidentiary concerns. As the
court explained, her note stated unambiguously that she
disagreed with the law without referencing any evidentiary
concerns. In response to the court’s questioning, she confirmed
that she disagreed with the law seven times, never once
referencing the evidence, much less suggesting any evidence-
based concerns.
To be sure, in her note, Juror 0552 conveyed that “[i]n
addition” to her disagreement with the law, she was
“experiencing emotional and mental distress.” Wilkerson I,
656 F. Supp. 2d at 2. When the district court asked whether
her distress was “because of deliberations,” she replied that it
was “the whole thing,” i.e., “the whole case.” Id. at 3.
Appellant asserts that the whole case includes the evidence.
But Juror 0552’s statement that her emotional distress related
to “the whole thing” does not evince an evidentiary concern as
such—i.e., it did not amount to “record evidence disclos[ing] a
possibility that [she] believe[d] that the government ha[d]
failed to present sufficient evidence to support a conviction.”
Brown, 823 F.2d at 597. The district court understood her
distress to stem from “concern[s] there was a lot at stake and
12
she said a life at stake,” not from any concerns associated with
the evidence. Trial Tr. 38, Sept. 15, 2004, 8 J.A. 2553. On that
record, the court did not err in discerning no substantial
possibility that her distress derived from an evidentiary
concern. (After the trial, it became apparent that the juror had
“fallen for” and become “fixated” with appellant, and she
visited him in jail some fifty times. United States v. Wilkerson,
656 F Supp. 2d 11, 16–17 (D.D.C. 2009) (“Wilkerson II”)).
The contrast between the record in this case and the one in
Brown is instructive. In Brown, the jury had been deliberating
for five weeks when it sent the following note: “When is a
defendant not guilty? When all jurors give a unanimous verdict
vote of not guilty or, at least, one gives a vote of not guilty?”
Brown, 823 F.2d at 594. The district court instructed the jury
to continue deliberations to reach a unanimous verdict. Id.Later that day, the court received another note, reading: “I
Bernard Spriggs am not able to discharge my duties as a
member of this jury.” Id. When the court questioned Spriggs,
he indicated that he had concerns with “the way [the act is]
written and the way the evidence has been presented,” and that,
had “the evidence [been] presented in a fashion in which the
law is written, then, maybe, [he] would be able to discharge
[his] duties.” Id. at 597 (emphasis in original). We held that
Spriggs’s dismissal violated the defendants’ right to conviction
by a unanimous jury, reasoning that we could not conclude
“with any conviction” that Spriggs’s request “stemmed from
something other than this view” of the evidence. Id. (emphasis
in original). Because the “record evidence in th[e] case
indicate[d] a substantial possibility” that Spriggs’s request
stemmed from evidentiary doubts, his dismissal violated the
defendants’ Sixth-Amendment rights. Id. at 596.
The record in this case is markedly different. First, in
Brown, Spriggs’s note came five weeks into deliberations and
13
on the same day the court instructed the jury to keep
deliberating after the jury asked whether it had to be
unanimous. Id. at 594. That context suggested that Spriggs
may have been a holdout. By contrast, Juror 0552’s note came
only three days after a two months-long trial covering many
crimes over many years and the jury had yet to send a single
substantive note. Second, in Brown, when asked about his
disagreement with the law, Spriggs referenced his
dissatisfaction with the evidence and even indicated that he
would have had no problem if the evidence had been presented
differently. Id. at 597. By contrast, Juror 0552 unambiguously
indicated her disagreement with the law in her note without any
reference to evidentiary concerns, and then confirmed that
disagreement seven times in her colloquy with the district court
without once mentioning evidentiary issues. In the context of
that record, the district court was under no obligation to keep
her on the jury even though she repeatedly and unequivocally
stated that she strongly disagreed with the applicable law and
could not follow it.
Lastly, we note an issue appellant raised in the district
court. In Brown, as noted, we held that a juror cannot be
dismissed if “the record evidence discloses any possibility”—
or, alternatively, “a” possibility—“that the request to discharge
stems from the juror’s view of the sufficiency of the
government’s evidence.” 823 F.2d at 596–97. And then in
applying that standard, we said that the “record evidence in
th[e] case indicate[d] a substantial possibility” that the juror
“believed that the evidence offered at trial was inadequate to
support a conviction.” Id. at 596. The district court in this case,
echoing that language, found that the record here indicated no
such “substantial possibility.” Trial Tr. 38, Sept. 15, 2004,
8 J.A. 2553. But the language in Brown might raise the
question, does our standard call for denying a juror’s dismissal
when there is “any” or “a” possibility of an evidence-based
14
concern or instead only when there is a “substantial” such
possibility, insofar as there is a meaningful difference among
those formulations?
Appellant raised that issue in the district court in his
motion for a new trial. Wilkerson I, 656 F. Supp. 2d at 6–8.
The district court understood Brown to call for examining
whether there is a “tangible possibility” as opposed to “just a
speculative hope.” Id. at 7 (quoting Abbell, 271 F.3d at 1302
n.14); accord Kemp, 500 F.3d at 304; Symington, 195 F.3d at1087 n.5. The court found no such possibility indicated by the
record in this case. Wilkerson I, 656 F. Supp. 2d at 8. The
court further said that it “would be helpful for the Court of
Appeals to clarify the applicable standard in this Circuit.” Id.We do so now, and we agree with the district court that the
pertinent question is whether there is a “tangible” or
“appreciable” possibility, not merely whether there is
“literal[ly] ‘any possibility,’” even just a theoretical one. Id.That understanding follows naturally from our repeated
recognition in Brown that the possibility of a juror’s evidence-
based concerns must be one that “the record evidence
discloses.” 823 F.3d at 596–97. Here, the district court made
the requisite determination: that “the record before [it]
indicated no appreciable possibility that Juror 0552 harbored
concerns about the evidence.” Wilkerson I, 656 F. Supp. 2d at5 n.5. We see no basis to reject the court’s assessment.
II.
We next address appellant’s claim that the district court
erred in not dismissing the RICO conspiracy count against him
as time-barred. We hold that the RICO conspiracy count was
not time-barred.
15
A.
The statute of limitations applicable to RICO conspiracy
is five years. Smith v. United States, 568 U.S. 106, 111 n.4
(2013). Here, because the grand jury indicted appellant on
November 17, 2000, the cutoff for statute of limitations
purposes was November 17, 1995.
The original November 2000 indictment alleged sixty-
three racketeering acts in support of the RICO conspiracy
count, including many after 1995. The indictment alleged
appellant’s specific involvement, however, in only seven
predicate acts, one of which—narcotics conspiracy—the
indictment alleged he committed after 1995.
In November 2002, the government filed a retyped
indictment, which was largely the same as the original
indictment but with some predicate racketeering acts that had
been dismissed removed. In June 2003, appellant moved to
dismiss the RICO conspiracy count from that indictment as
time-barred. The district court denied appellant’s motion.
While that motion was pending, in July 2003, the district
court severed appellant’s trial from that of his codefendants.
Accordingly, prior to trial, in July 2004, the government filed
a second retyped indictment, deleting predicate racketeering
acts that did not specifically reference appellant. The second
retyped indictment’s RICO conspiracy count thus alleged
seven predicate acts of racketeering, only one of which—
narcotics conspiracy—appellant allegedly committed after
1995. The verdict form submitted to the jury also referenced
only those seven predicate acts.
16
B.
Appellant contends that narcotics conspiracy does not
constitute a predicate act of racketeering, and that even if it
does, RICO conspiracy requires two predicate acts of
racketeering within the statute of limitations period. We
disagree on both scores.
In general, we review the district court’s legal conclusion
concerning the scope of the conspiracy de novo. United States
v. Hitt, 249 F.3d 1010, 1016 (D.C. Cir. 2001). But when a
defendant fails to object to an alleged error, the defendant bears
the burden of demonstrating “plain error” on appeal. United
States v. Moore, 651 F.3d 30, 50 (D.C. Cir. 2011). Although
the government contends that the plain-error standard applies
here, we need not decide that issue because we conclude that
the district court did not err in the first place. We hold that
narcotics conspiracy constitutes a predicate act of racketeering
and that a RICO conspiracy count is timely if the government
charges the defendant within five years of the conspiracy’s
termination or the defendant’s withdrawal.
A person commits the offense of RICO conspiracy by
conspiring to “conduct or participate . . . in the conduct of [an
interstate] enterprise’s affairs through a pattern of racketeering
activity.” 18 U.S.C. § 1962(c)–(d). Section 1961 lists offenses
that constitute racketeering activity, including “any offense
involving . . . the felonious manufacture, importation,
receiving, concealment, buying, selling, or otherwise dealing
in a controlled substance . . . punishable under any law of the
United States.” Id. § 1961(1)(D). Here, both the first and
second retyped indictments charged appellant with conspiracy
to “manufacture, distribute, or dispense, or possess with intent
to manufacture, distribute, or dispense, a controlled substance.”
See 21 U.S.C. §§ 841(a)(1), 846.
17
By its plain terms, section 1961(1)(D)’s language—“any
offense involving . . . dealing in a controlled substance”—
encompasses a Section 846 offense—conspiracy to “distribute,
or dispense . . . a controlled substance.” The structure of
section 1961 bolsters that conclusion: section 1961’s
“subsections (B) and (C) . . . conspicuously lack the broad ‘any
offense involving’ language of subsection (D),” instead
limiting their predicate acts to those “indictable under
specifically enumerated sections of the criminal code.” United
States v. Weisman, 624 F.2d 1118, 1124 (2d Cir. 1980).
Several circuits have thus held that section 1961(1)(D)
encompasses related conspiracy offenses. See United States v.
Echeverri, 854 F.2d 638, 648–49 (3d Cir. 1988); United States
v. Phillips, 664 F.2d 971, 1015 (5th Cir. 1981); Weisman, 624
F.2d at 1124. We agree and now hold that a narcotics
conspiracy offense constitutes racketeering activity under
section 1961(1)(D).
Appellant argues in the alternative that, even if narcotics
conspiracy constitutes a predicate act of racketeering, the
RICO conspiracy count was time-barred because it alleged his
specific involvement in only one rather than two predicate acts
within the limitations period. We disagree.
The statute of limitations applicable to RICO conspiracy
bars prosecution unless an indictment is returned “within five
years next after such offense shall have been committed.” 18
U.S.C. § 3282. Thus, the statute of limitations begins to run
when a defendant last commits the “offense” of RICO
conspiracy. A defendant who conspires to participate in an
enterprise’s affairs “through a pattern of racketeering activity,”
18 U.S.C. § 1962(c)—i.e., through commission of at least two
predicate acts of racketeering, id. § 1961(5)—commits the
offense of RICO conspiracy, id. § 1962(d). As the Supreme
18
Court has explained, however, “the offense in . . . conspiracy
prosecutions [is] not the initial act of agreement, but the
banding-together against the law effected by that act.” Smith,
568 U.S. at 113. That offense “continues until termination of
the conspiracy or, as to a particular defendant, until that
defendant’s withdrawal.” Id. Put simply, “a defendant who
has joined a conspiracy continues to violate the law through
every moment of [the conspiracy’s] existence.” Id. at 111(citation omitted).
Absent withdrawal, then, a defendant continues to commit
the offense of RICO conspiracy until the date of the
conspiracy’s termination. It follows that a RICO conspiracy
count is timely as long as the government charges the defendant
within five years of that date. See United States v. Saadey, 393
F.3d 669, 678 (6th Cir. 2005); United States v. Gonzalez, 921
F.2d 1530, 1547–48 (11th Cir. 1991); United States v. Torres
Lopez, 851 F.2d 520, 525 (1st Cir. 1988); United States v.
Persico, 832 F.2d 705, 713–14 (2d Cir. 1987).
Here, as noted, both the first and second retyped
indictments alleged appellant’s participation in a narcotics
conspiracy as a predicate racketeering act within the limitations
period. Thus, both indictments alleged appellant’s commission
of the offense of RICO conspiracy within the limitations
period.
III.
Appellant raises five additional challenges. He contends
(i) that certain statements made by witnesses and the
prosecution deprived him of a fair trial; (ii) that the district
court improperly gave a Pinkerton instruction; (iii) that the
evidence for two of the CCE murder counts was insufficient;
(iv) that the prosecution withheld Brady evidence and
19
advanced inconsistent theories of prosecution; and (v) that the
testimony of a witness named Donney Alston was secured in
violation of Alston’s Fifth Amendment rights. None of those
challenges has merit.
Appellant first contends that certain statements made by
witnesses and referenced in the prosecution’s closing argument
deprived him of a fair trial. Appellant particularly emphasizes
one statement that suggested that his decision to go to trial
proved his continuing participation in the conspiracy.
Appellant objected to that testimony and requested the district
court to strike it, which the court did. Appellant did not object
to the prosecution’s reference to that testimony in closing
argument. Because appellant failed to preserve any claim for
relief beyond striking the testimony, see United States v. Tate,
630 F.3d 194, 197 (D.C. Cir. 2011); United States v. Taylor,
514 F.3d 1092, 1095–96 (10th Cir. 2008), we review his claim
for plain error, Moore, 651 F.3d at 50.
He cannot meet that standard. It is neither “clear” nor
“obvious” that the district court should have sua sponte granted
curative action beyond striking the challenged testimony.
United States v. Olano, 507 U.S. 725, 734 (1993). Nor did the
court’s failure to sua sponte instruct the jury again or take other
curative action following the prosecution’s single reference
thereto affect appellant’s substantial rights, given the court’s
previous instruction and the weight of the evidence of
appellant’s continuing participation in the conspiracy and the
comparative dearth of evidence of his purported withdrawal.
See McGill, 815 F.3d at 890; Moore, 651 F.3d at 54.
Appellant next contends that, because of that testimony,
the district court should have dismissed the narcotics
conspiracy count, and that the court further erred in giving an
instruction under Pinkerton v. United States, 320 U.S. 64020
(1946), as to that conspiracy count and the RICO conspiracy
count. But as discussed, the district court did not err in sending
those conspiracy counts to the jury. And “once the trial court
determined to send the conspiracy charge[s] to the jury, it could
not have been error to also give a Pinkerton instruction.”
United States v. Henning, 286 F.3d 914, 920 (6th Cir. 2002).
Appellant challenges the sufficiency of the evidence for
the CCE murders of Christopher Burton and Scott Downing.
In particular, appellant challenges the sufficiency of the
connection between those murders and the continuing criminal
enterprise. Assuming such a substantive connection is
required, see, e.g., United States v. Aguilar, 585 F.3d 652, 658
(2d Cir. 2009), a “rational trier of fact could have found” it
here, United States v. Wahl, 290 F.3d 370, 375 (D.C. Cir.
2002). A rational trier of fact could have found that members
of the Gray-Moore conspiracy murdered Christopher Burton in
retaliation for an attack on one of its own (appellant).
Similarly, a rational trier of fact could have found that members
of the conspiracy murdered Scott Downing as part of a botched
plan to punish his partner for pulling out of a drug deal. Such
murders, committed with the conspiracy’s resources to stifle
threats to its members or its deals, bear a substantive
connection to the continuing criminal enterprise. See United
States v. Aquart, 912 F.3d 1, 58 (2d Cir. 2018); Aguilar, 585
F.3d at 658; United States v. Jones, 101 F.3d 1263, 1267 (8th
Cir. 1996).
Appellant next contends that the government withheld
evidence in violation of Brady v. Maryland, 373 U.S. 83(1963), and relied on inconsistent theories in its prosecutions
in violation of his due-process rights. Both contentions rely on
the same post-trial discovery: the factual proffer in Rodman
Lee’s plea agreement, which described Lee as the leader of a
conspiracy counting Gray among its members. United States
21
v. Wilkerson, 656 F. Supp. 2d 22, 31 (D.D.C. 2009)
(“Wilkerson III”). Appellant contends that that evidence was
material to his claim that the Gray-Moore conspiracy had
disbanded prior to 1995 and is inconsistent with the
prosecution’s theory that Lee joined the Gray-Moore
conspiracy. Both contentions fail for the same reason:
“[c]riminals may of course participate in more than one
conspiracy.” Moore, 651 F.3d at 65. Evidence that Gray
participated in the Lee conspiracy is not inconsistent with the
persistence of the Gray-Moore conspiracy. Such evidence is
immaterial, as we held for the same factual proffer for several
of appellant’s original co-defendants, id., and the prosecution’s
theories were not inconsistent, as the district court held,
Wilkerson III, 656 F. Supp. 2d at 32–34.
Finally, Appellant contends that his indictment unlawfully
relied on testimony from Donney Alston obtained in violation
of Alston’s Fifth Amendment privilege. But generally “a
defendant does not have standing to complain of an erroneous
ruling on the scope of the privilege of a witness.” Ellis v.
United States, 416 F.2d 791, 799 (D.C. Cir. 1969). Nor does
any alleged violation of Alston’s Fifth-Amendment rights fit
the exception for cases in which a constitutional violation
would otherwise evade review. See id. at 799–800; accord
Barrows v. Jackson, 346 U.S. 249, 257 (1953).
* * * * *
For the foregoing reasons, we affirm the judgment of the
district court.
So ordered.