White v. State ( 2020 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
DWAYNE WHITE, §
§
Defendant Below, § No. 467, 2019
Appellant, §
§ Court Below: Superior Court
v. § of the State of Delaware
§
STATE OF DELAWARE, § ID No. 1710006768
§
Plaintiff Below, §
Appellee. §
Submitted: September 30, 2020
Decided: December 10, 2020
Before SEITZ, Chief Justice; VALIHURA, and MONTGOMERY-REEVES, Justices.
Upon appeal from the Superior Court of the State of Delaware. AFFIRMED.
Michael W. Modica, Esquire (argued), Wilmington, Delaware for Appellant.
Andrew J. Vella, Esquire (argued), Delaware Department of Justice, Wilmington,
Delaware for Appellee.
VALIHURA, Justice:
Dwayne White faces a lengthy sentence of incarceration at Level V followed by
various levels of probation after a jury convicted him of twenty-one felony charges. On
appeal, White challenges his conviction and sentence on a number of grounds that were
not raised in the proceedings below. In his first two claims of error, White contends that
several of the counts of which he was convicted and separately sentenced merge under the
Double Jeopardy Clauses of the Delaware and United States Constitutions. Third, White
contends the trial court committed plain error by placing the accomplice liability
instructions at the end of the instructions for the felony conspiracy offenses. Fourth, White
alleges that his conviction for conspiracy to commit Drug Dealing Cocaine is invalid
because it relies on an indictment containing a numbering error. Fifth, White contends the
trial court erred by failing to bar the State from eliciting testimony from White’s attorney
regarding the scope of the attorney’s representation of members of the criminal enterprise.
Finally, White contends that the trial court abused its discretion by failing to specify
adequately its reasons for imposing a sentence in excess of the SENTAC guidelines and by
relying upon certain factual predicates which he challenges on various grounds. As
explained below, we find no plain error and AFFIRM the judgment below.
I. FACTUAL AND PROCEDURAL BACKGROUND
We provide the following background facts consistent with the jury verdict and
based upon the record before us. White was tried with two other defendants, Damon
2
Anderson and Eric Lloyd.1 Of the three, White was the only one charged with Attempted
Murder. Other than disputing involvement in or connection with any attempted murder,
Dwayne White conceded the truth of most of the State’s accusations against him. He
concedes his involvement in a complex narcotics enterprise. White was a key figure and
eventually, the leader of it.2 From 2015 until 2019, the members of that enterprise sold
large amounts of cocaine and heroin, and conducted sophisticated business operations,
including maintaining multiple limited liability companies (“LLCs”), concealing activity
by assigning property ownership to others, and maintaining detailed financial records.3
1
The record is replete with their nicknames: White (aka, “BD” or “Boop”), Lloyd (aka “Butter,”
“Butterico” or “Bub”), and Anderson (aka “Frog”).
2
See Op. Br. at 4 n.4 (“In a teleconference on May 31, 2019, White’s attorney confirmed that his
strategy was to concede guilt to the drug dealing, conspiracy to commit drug dealing and
racketeering as supported by the predicate acts, but to deny all involvement in the conspiracy to
commit murder and related charges.”). White followed through with this strategy at trial. App. to
Op. Br. at A64–66 (White Opening Statement) (“There is a lot of charges here having to do with
the drug dealing and they’re true. My client did sell drugs. There is a lot of evidence that you are
going to see here of money at a casino, thousands and thousands of dollars at a casino. No W–2
to substantiate that. That’s true. That’s money laundering. . . What my client, Dwayne White,
has absolutely nothing to do -- and I’ll say this -- absolutely nothing to do with is the shooting of
that little boy. And I mean nothing.”); see also App to State’s Ans. Br. at B76, B78 (White’s
Opening Statement) (“He did try to bribe the family of that little boy to save the years of the life
of Michael Pritchett,” and stating: “Did he launder money? Yes, he did. Did he bribe the family?
Yes he did.”); App. to Op. Br. at A158, 161, 168, 206 (summation), App. to Op. Br. at A223, 231,
238 (White’s counsel at sentencing argued that White demonstrated acceptance of responsibility
by not contesting the evidence, or the charges, relating to most of the offenses he faced.).
3
Op. Br. at 4–5; see also App. to Ans. Br. at B667–68, B670 (Testimony of Tyrone Roane)
(alleging that cocaine with which he was arrested was given to him by White for him to sell); App.
to State’s Ans. Br. at B1098 (Testimony of Dontae Sykes) (“Limited liability companies, I used to
use it for, you know, put your cars in your LLC, that way the police get behind you, your company
comes up instead of your name so they can’t profile you and pull you over,” and “[y]ou can use
the LLC, you know, to shift money around that it’s not, you know, directly attached to you . . . .”).
3
Certain members of the enterprise, the so-called “Big Screen Boys,” feuded with
one of their former affiliates, Markevis Stanford.4 Believing him to be a “rat,” the Big
Screen Boys produced and disseminated on the internet rap music videos insulting
Stanford, and a pornographic tape of some of the members with Stanford’s girlfriend,
Keyonna Perkins.5 Their feud escalated to violence, including reprisal robberies, and
eventually a shooting in the Riverside housing projects.6 Certain other members of the
enterprise called themselves “The Four Horsemen of Riverside.” Those members, Dwayne
White, his brother Rasheed White, Teres Tinnin, and Michael Pritchett, were high level
drug dealers in the City of Wilmington.7
On June 6, 2017, Markevis Stanford was targeted in two shootings, one in Newark
and one later in Wilmington.8 Stanford avoided being hit by the gunfire in both incidents.
4
Op. Br. at 5; see also App. to Ans. Br. at B713–14 (Testimony of Tyrone Roane) (describing the
feud and exchanges of reprisals between Stanford and other members of the enterprise); see also
App. to State’s Ans. Br. at B1103 (Testimony of Dontae Sykes). The Big Screen Boys included
Ryan Bacon, Maurice Cooper, Dante Sykes, Teres Tinnin and Michael Pritchett. Tyrone Roane
testified that “[b]ig screening means basically when you got a group of individuals, that take a
female, have sex with her and record it and spread it through social media, basically a big screen.”
App. to State’s Ans. Br. at B713. Roane testified that the group also included Dion Oliver (aka
“Fine Wine”), and “Buck 50 [Ryan Bacon].” Id. He testified that Dion Oliver had been shot as a
result of a feud with “Young Money.” Id. at B712–15. Sykes identified Markevis Stanford as
“Young Money.” Id. at B1088 (Testimony of Dontae Sykes).
5
Op. Br. at 5; App. to State’s Ans. Br. at B713–21 (Testimony of Tyrone Roane).
6
Id.
7
App. to Ans. Br. at B333 (Testimony of Det. Barnes) (confirming his description of the Four
Horsemen as the most high level drug dealers in the City of Wilmington). The indictment and
record reflect the following nicknames: Michael Pritchett (aka “M Dot,” “Dot” or “Tuckermaxx”);
Tinnin (aka “Versace” or “Sacchey”); Rasheed White (aka “Fatty” or “Goat”). App. to Op. Br. at
A127.
8
Op. Br. at 6.
4
But, in the second shooting, a stray bullet struck six-year-old innocent bystander Jashown
Banner in the head causing him to suffer paralysis and brain damage.9 The shooting left
the child confined to a ventilator and able to move only his eyes. Banner was sitting in his
mother’s car with his younger sister, mother, and grandmother while Stanford hid behind
it. In the third incident on that same day, assailants kidnapped and murdered Perkins.10
During the State’s investigation, it discovered a recorded phone call between
Stanford and an imprisoned associate during which Stanford identified Michael Pritchett
as a shooter in both June 6 attacks on him. Police arrested Pritchett.11 In response, White
offered Jashown Banner’s family members a $20,000 bribe to produce a sworn statement
denying Pritchett’s involvement and to deliver it to attorney Joseph Benson. At trial, White
stipulated to the fact that he attempted to bribe Banner’s family.12
Investigating with FBI assistance, the State obtained a wiretap on White’s cell
phone. This wiretap revealed the existence of the enterprise to law enforcement, and
produced a significant amount of information about the scope of its operations.13 It also
9
Id.
10
Op. Br. at 6; see also App. to Ans. Br. at B1104 (Cross-Examination of Dontae Sykes)
(discussing his involvement with that event). Sykes was facing the possibility of the death penalty
when he testified. White was not charged in Perkins’s kidnapping or murder.
11
Op. Br. at 7; see also App. to Ans. Br. at B722–25 (Testimony of Tyrone Roane) (discussing
the arrest of Michael Pritchett for the Jashown Banner shooting, and his personal knowledge of
White’s efforts to bribe Banner’s family into silence).
B1133 (Testimony of Det. Barnes); see also Op. Br. at 7; see App. to Op. Br. at A79 (White’s
12
Opening Statement) (“He did try to bribe the family of that little boy to save the years of life of
Michael Pritchett.”).
13
Id.; see also App. to Ans. Br. at B1156–59 (Direct Examination of Special Agent Haney)
(showing and discussing the content of wiretap recordings and audiovisual surveillance recordings
of White and his associates).
5
recorded White communicating with imprisoned associates, seeking to have Stanford
intimidated or killed.14
In early September 2017, police executed a search warrant on White’s home.15 They
found paraphernalia associated with the drug trade, large amounts of cash, cellular phones,
and business records relating to the enterprise’s financial dealings and drug transactions,
and some of White’s personal tax records.16 Some of these items smelled of or field-tested
positive for the presence of cocaine. Police also discovered that White’s girlfriend obtained
an apartment at the Whitney Apartments in Claymont for White to use. White paid for it
with cash and money orders. Police searched this apartment and located cocaine residue,
scales, pots, bags and other items used in the drug operation.17
Police arrested White on October 25, 2017.18 On November 13, 2017, a New Castle
County grand jury handed down a thirty-six count indictment against White and his
14
Op. Br. at 8.
15
App. to State’s Br. at B1164 (Testimony of Special Agent Shawn Haney).
16
Id.
17
Id. at B393–94 (Testimony of Det. Barnes).
18
As a result of the wiretap, Nyeesha White, White’s wife, was also arrested in October 2017. Her
$24,000 bail was paid in money orders of $1000 increments by Lloyd. See App to State’s Br. at
B189–197 (Testimony of Bail Bondsman Lebron Jones).
6
codefendants.19 The indictment spanned a period from January 2015 to January 2019. The
State brought twenty-four counts to trial.20
White proceeded to a joint jury trial with co-defendants Eric Lloyd and Damon
Anderson beginning on June 3, 2019. Among the evidence presented, three associates of
the enterprise (William Wisher, Tyrone Roane and Dontae Sykes) testified as to their direct
involvement with Lloyd and White, among others, and the crimes that were committed.
They cooperated after being charged with criminal offenses.
Roane testified about selling drugs for the enterprise and about his interactions with
White in such activity.21 Roane testified that members of the enterprise, including White,
were sometimes able to access and review discovery in their co-defendants’ criminal cases
19
App. to Op. Br. at A21–A43 (Indictment). The nineteen predicate offenses included in the
Racketeering charge included: Drug Dealing Heroin, Aggravated Possession of Heroin, Drug
Dealing Cocaine, Money Laundering, Criminal Solicitation, Conspiracy First Degree, Aggravated
Act of Intimidation, Bribing a Witness, Conspiracy Second Degree, Possession of a Firearm by a
Person Prohibited or Possession of a Firearm During the Commission of a Felony, Attempt to
Evade or Defeat Tax, Tampering with Physical Evidence, Conspiracy First Degree and Attempted
Murder First Degree. App. to Op. Br. at A135 (Jury Instructions).
20
App. to Op. Br. at A149. White submitted an unsigned version of the twenty-four count trial
indictment with his reply brief. App. To Reply Br. at AR2–23 (Trial Reindictment). The charges
contained in the grand jury indictment but removed from the trial indictment were the original
Counts Twelve (another Conspiracy Second Degree count relating to aggravated possession of
heroin with particular co-conspirators on a specific date), Twenty and Twenty-One (additional
counts of conspiracy to commit money laundering), Twenty-Six (misdemeanor terroristic
threatening), Twenty-Seven (misdemeanor criminal mischief), Count Twenty-Eight
(misdemeanor possession of promethazine with codeine), and Counts Thirty-One through Thirty-
Six (alleging firearms possession, aggravated menacing, conspiracy to commit aggravated
menacing, and several misdemeanors). App. to Op. Br. at A32, A36, A39, A41–43.
21
Roane pled guilty to multiple counts of conspiracy. App. to State’s Ans. Br. (Testimony of
Tyron Roane) at B726, B689; see also B687–88 (discussing the intensification of White’s dealing
heroin and cocaine).
7
through use of an attorney, Joseph Benson, who represented some of its members.22 White
called Roane’s wife suspecting that Roane was cooperating with the police. White
obtained a sealed copy of Roane’s plea agreement.23 White discussed the agreement on
prison calls with Darryl Kelley and Tawayne Powell, and White said he wanted them to
spread the word.24 After Roane pled guilty, a copy of his plea agreement was posted on
social media along with a wedding picture of Roane and his wife.25 The obvious purpose
for publishing the sealed agreement was to intimidate Roane. Roane also testified about
the feud with Markevis Stanford and how a bounty on Stanford began and was increased
and how the hostility escalated.26 He discussed White’s involvement in trying to bribe
Jashown Banner’s family in order to help Pritchett. Roane was present when White hosted
the party at the 8th & Union restaurant in 2017 as a farewell to Lloyd, who was about to
serve a federal prison sentence for violation of probation.27
Wisher stated that Lloyd was head of the enterprise and that he was involved in
dealing cocaine for Lloyd. Wisher maintained a consignment arrangement with Lloyd
whereby Lloyd would provide Wisher with powder cocaine for an agreed price. Wisher
would keep as profit amounts he received above the agreed price.28 Wisher also described
22
App. to State’s Ans. Br. at B707–09.
23
Id. at B1169–70 (Testimony of Det. Barnes).
24
Id.
25
Id. at 723–34 (Testimony of Tyrone Roane); id. at 1136–37, 1170–71 (Testimony of Det.
Barnes).
26
Id. at 718–719.
27
Id. at B688–690.
28
App. to State’s Ans. Br. at B1005–007 (Testimony of William Wisher).
8
the meeting at the 8th & Union restaurant, when the operation was transferred from Lloyd
to White. He stated that he then began selling heroin for White.29
Sykes testified as a State’s witness and discussed the drug operation. According to
Sykes, Lloyd was at the top of the cocaine trade in Wilmington and White, backed by
Lloyd, was at the top of the heroin trade.30 When Lloyd went to federal prison in 2017,
Sykes began dealing with White directly.31 Both Lloyd and White, in their cross-
examinations of Sykes and Wisher, attempted to discredit their testimony as cooperating
witnesses for the State.32 Although the offenses for which White was convicted included
two drug dealing charges, Lloyd was found Not Guilty of Drug Dealing Cocaine, but Guilty
of two drug conspiracy charges among other charges.33
Sykes also explained their use of LLCs to hide physical assets and money. 34 He
testified about the investment properties obtained to launder money and about the transfer
29
Wisher, a habitual offender, pled guilty to Conspiracy to Commit Racketeering, Drug Dealing
Cocaine, Conspiracy Second Degree, Drug Dealing Heroin, and Possession of a Firearm by a
Person Prohibited. App. to State’s Ans. Br. at B991, B997, B1033–36 (Testimony of William
Wisher). He was sentenced to twenty-one years of incarceration. Id. at B998, B1069.
30
Id. at B1091; see also B1002 (Sykes testified that Lloyd ran the show: “the whole giddy up. He
passed the torch to Mr. White.”).
31
Id. at B1092.
32
We recognize that Lloyd’s conviction and sentence are subject to a separate appeal, that he
disputes the testimony of Sykes and Wisher, and that he argues that the jury’s acquittal of his Drug
Dealing Cocaine charge shows that the jury did not find Wisher and Sykes to be credible. In
Lloyd’s appeal, the State counters that Lloyd did run a cocaine distribution enterprise. We will
address Lloyd’s issues in his separate appeal and not herein.
33
Lloyd was found guilty of Racketeering (Count I), Conspiracy to Commit Racketeering (Count
2), two counts of Conspiracy Second (Counts 16 and 18), Money Laundering (Count 17) and
Attempt to Evade or Defeat Tax (Count 23). App. to Op. Br. at A153–55 (Jury Verdict).
34
Id. at B1098.
9
of leadership at the 8th & Union restaurant. He was familiar with the feud with Markevis
Stanford. He testified in detail about the bounty and White’s involvement in increasing
the bounty on Stanford’s life.35 He was aware of White’s plan to bribe the family of
Jashown Banner.
Detective Barnes and Special Agent Haney provided details of the money
laundering operation. This included gambling at casinos, sports betting, use of money
orders, purchase of high-end items, and the purchase of real estate. The State presented
evidence of White’s gambling activity totaling $1.3 million from 2015 to 2017. No taxes
were paid on any of the revenue generated by the criminal activity detailed by the State.36
The State presented testimony from Michelle Hoffman, a forensic accountant. She
focused mainly on the activities of White and Lloyd involving amounts in excess of
$750,000.00. She also described facts surrounding certain of the limited liability
companies connected to Lloyd, White’s wife, and White, among others. She described a
property in Elkton, Maryland that was owned by Nyeesha White as Trustee for a family
trust.37 The property was transferred to NCTZA LLC. The address for this entity was an
35
App. to State’s Ans. Br. at B1094–95 (Testimony of Dontae Sykes); see also B718 (Testimony
of Tyrone Roane).
36
The State introduced evidence that Dwayne and Nyeesha White’s 2016 income tax return
reflected total adjusted gross income of $43,000. App. to State’s Ans. Br. at B418–19 (Testimony
of Det. Barnes).
37
App. to State’s Ans. Br. at B1233.
10
address Lloyd listed as his primary residence.38 A document from the Delaware Division
of Corporations listed the registered agent for NCTZA LLC as Joseph W. Benson, P.A.39
Another property was purchased at a sheriff’s sale by One-Pie Investments LLC.
That entity assigned its bid to Eric Lloyd, who then assigned it to T&B DE Homes, LLC.40
Tinnin, one of the “Four Horsemen,” was listed as the Managing Member of T&B DE
Homes LLC. This property was then transferred to Nyeesha White as Trustee for another
family trust. A page of the deed was signed by Dwayne White, as representative of T&B
DE Homes LLC.41 Detective Barnes testified that with respect to another entity, GNB
Homes, the “G” stood for “Goat” and the “B” stood for “Boop” or as he said, “Teres and
Boop” -- meaning Tinnin and White.42
On June 14, 2019, after a nine-day trial, a jury convicted White of all charges, except
the attempted murder charge relating to the June 6 shooting and two counts of Conspiracy
Second Degree.43 In the specific findings of fact, the jury found the Racketeering charge
supported by every alleged predicate offense except for attempted murder.44
In total, the jury convicted White of the following offenses:
38
Id. at B1234.
39
Id. at B1234–1237.
40
Id. at B1237. Another entity, NCTZAL, LLC also listed Benson as its registered agent.
41
Id. at B1236.
42
Id. at 1239.
43
App. to Reply Br. at AR21–34 (Verdict Sheet) (White was found Not Guilty of Count 3
(Attempted Murder First Degree), Count 8 (Conspiracy Second Degree) and Count 9 (Conspiracy
Second Degree)).
44
Id. at AR21–26.
11
(1) Criminal Racketeering (along with specific findings of eighteen predicate
offenses);45
(2) Conspiracy to Commit Racketeering;
(3) Two counts of Conspiracy First Degree;
(4) Drug Dealing Heroin (Tier IV);
(5) Aggravated Possession of Heroin (Tier V or higher);
(6) Conspiracy Second Degree (eight counts);46
(7) Drug Dealing Cocaine (Tier IV);
(8) Money Laundering;
(9) Criminal Solicitation;
(10) Aggravated Act of Intimidation;
(11) Bribing a Witness;
(12) Attempt to Evade or Defeat Tax; and
(13) Tampering with Physical Evidence.47
The trial court noted that several of the charges merged, with aggravated possession
of heroin merging into the corresponding drug dealing charge, and conspiracy to commit
racketeering merging into the racketeering charge.48 The trial court likewise imposed only
45
The eighteen predicate offenses for which he was found guilty included: Drug Dealing Heroin,
Aggravated Possession of Heroin (Tier 5 or higher), Drug Dealing Cocaine, Money Laundering,
Criminal Solicitation, Conspiracy First Degree, Aggravated Act of Intimidation, Bribing a
Witness, Conspiracy Second Degree, Possession of a Firearm by a Person Prohibited or Possession
of a Firearm During the Commission of a Felony, Attempt to Evade or Defeat Tax, Tampering
with Physical Evidence, and Conspiracy First Degree. App. to Op. Br. at A153–54 (Jury verdict).
46
The Conspiracy Second Degree charges all relate to the narcotics offenses in the indictment,
with the exception of a single count of conspiracy to commit money laundering. See Appellant’s
App. to Reply Br. at AR16.
47
App. to Ans. Br. at B1333–1337 (Jury Instructions).
48
App. to Op. Br. at A254 (Sentencing Hearing). The State recommended merging Conspiracy to
Commit Racketeering into Racketeering post-conviction. App. to Op. Br. at A181 (State’s
Sentencing Memorandum). The trial court acceded to this recommendation. Id. at A254
(Sentencing Hearing). However, this Court has previously held that the two offenses do not merge.
12
a single sentence for all the Conspiracy Second Degree counts.49 White did not request
that the trial court merge any of the other counts at that or any other time.50
The State recommended a seventy-year sentence, which was substantially longer
than SENTAC guidelines.51 After a presentence investigation and a sentencing hearing,
on October 18, 2019, the Court imposed a shorter total sentence, but still one above
SENTAC guidelines, including a lengthy period of incarceration at Level V, followed by
declining levels of supervision, as well as fines, and surrender of White’s interest in the
enterprise’s LLCs.52 In reaching this sentence, the Superior Court imposed a period of
Level V incarceration including: separate consecutive sentences of five years each at Level
V for the two counts of Conspiracy First Degree, twenty years (Level V) for Racketeering,
ten years (Level V) for Drug Dealing Heroin (Tier IV), five years (Level V) for Drug
Dealing Cocaine, two years (Level V) for Attempting to Evade or Defeat Tax, two years
(Level V) for Attempting to Bribe a Witness, and five years (Level V) for Aggravated Act
of Intimidation (to run concurrently with one of the Conspiracy First convictions), and two
years (Level V) suspended for one year (Level III) for all the Conspiracy Second Degree
See Stroik v. State, 671 A.2d 1335, 1343 (Del. 1996) (holding that “[v]iolation of 11 Del. C. §
1503(a) does not require an agreement and can be achieved through the acts of one person,” and
that “[i]t is clear that 11 Del. C. § 1503(d), proscribing conspiracy to commit racketeering,
contemplates a wholly separate offense that should not merge with offenses under § 1503(a).”).
Even so, the trial court would have had the authority to impose concurrent sentences since neither
Racketeering nor Conspiracy to Commit Racketeering is among the enumerated offenses requiring
consecutive sentencing. 11 Del. C. § 3901(d).
49
Id. at A256.
50
Id. at A254–258.
51
“SENTAC” refers to the Delaware Sentencing Accountability Commission Benchbook.
52
Appellant’s App. to Op. Br. at 254–256 (Sentencing Hearing).
13
counts.53 Several of these terms are above-guideline sentences, and the trial court invoked
the court’s authority54 to disallow ‘good time’ reductions on several of them.55
II. ANALYSIS
White concedes that all issues related to his convictions are being raised for the first
time on appeal and so are subject to our plain error review. “The doctrine of plain error is
limited to material defects which are apparent on the face of the record; which are basic,
serious, and fundamental in their character; and which clearly deprive an accused of a
substantial right, or which clearly show manifest injustice.”56
A. White’s Multiplicity Contentions
Both the United States and Delaware Constitutions guarantee that no person shall
be “twice put in jeopardy of life or limb.”57 Among the rights afforded by the Double
Jeopardy Clauses is “protect[ion] against multiple punishments for the same offense.”58
This protection is termed multiplicity and flows from the principle that “[l]egislatures, not
courts, prescribe the scope of punishments.”59 “The multiplicity doctrine, which is rooted
53
App. to Op. Br. at A255–56 (Sentencing Hearing).
54
11 Del. C. § 4204(k)(1).
55
App. to Op. Br. at A254–55 (Sentencing Hearing).
56
Morales v. State, 133 A.3d 527, 529 (Del. 2016) (quoting Baker v. State, 906 A.2d 139, 150
(Del. 2006)).
57
See U.S. Const. amend. 5 (“nor shall any person be subject for the same offence to be twice put
in jeopardy of life or limb”); Del. Const. art. I, § 8 (“no person shall be for the same offense twice
put in jeopardy of life or limb”). We have previously described the language of these clauses as
“virtually identical.” Tarr v. State, 486 A.2d 672, 673 n.1 (Del 1984).
58
North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969).
59
Missouri v. Hunter, 459 U.S. 359, 368, 103 S.Ct. 673, 679, 74 L.Ed.2d 535 (1983).
14
in the prohibition against double jeopardy, prohibits the State from dividing one crime into
multiple counts by splitting it ‘into a series of temporal or spatial units.’”60
White raises two different multiplicity arguments related to his conspiracy and
racketeering convictions. First, he argues that his convictions for Conspiracy in the First
Degree are lesser included offenses of his Racketeering conviction. Second, he argues that
his Conspiracy Second Degree and Conspiracy First Degree convictions all merge into one
count because they concern an ongoing conspiratorial relationship which he claims is
“subsumed under the continuing conspiracy envisioned by the conspiracy to commit
racketeering charge.”61
Where a criminal defendant presents a multiplicity argument not raised below, this
Court reviews it for plain error.62 “A multiplicity violation may constitute plain error.”63
Plain error review in a multiplicity challenge not contesting the facts is effectively de
novo.64
60
Mills v. State, 201 A.3d 1163, 1169 (Del. 2019) (quoting Spencer v. State, 868 A.2d 821, 823–
24 (Del. 2005) and Brown v. Ohio, 432 U.S. 161, 169, 97 S.Ct. 2221, 2227, 53 L.Ed.2d 187(1977)).
61
Op. Br. at 23.
62
Zugehoer v. State, 980 A.2d 1007, 1013 (Del. 2009).
63
Handy v. State, 803 A.2d 937, 940 (Del. 2002) (citing Williams v. State, 796 A.2d 1281, 1284
(Del. 2002).
64
See, e.g. Mills, 201 A.3d at 1169 (“Because this is a pure statutory interpretation issue, the
standard of review is effectively de novo.”) (citing Patrick v. State, 922 A.2d 415, 2007 WL
773387, at *2 (Del. 2007) (TABLE)). Mills, like Handy and Zugehoer, includes the verbatim
recitation that “a multiplicity violation may constitute plain error.” Id. at 1168.
15
1. White’s Conspiracy First Degree and Racketeering Convictions Do Not
Violate Double Jeopardy
As to White’s first contention, the Double Jeopardy Clauses protect against “(1)
successive prosecutions; (2) multiple charges under separate statutes; and (3) being charged
multiple times under the same statute.”65 Where the charges derive from two different
statutes “the question is whether, both sections being violated by the same act, the accused
committed two offenses or only one” for which the inquiry is “whether each provision
requires proof of a fact which the other does not.”66 This is a principle of statutory
construction that derives from the underlying assumption that the legislature does not
intend to punish the same offense under two different statutes.67 However, that rule of
construction “gives way in the face of clear legislative intent to the contrary.”68 This test
is codified in Delaware statute at 11 Del. C. § 206,69 and is satisfied where an inquiry into
65
Nance v. State, 903 A.2d 283, 286 (Del. 2006).
66
Id. (quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932)).
67
In considering double jeopardy claims based on multiple punishments, we have observed that
“whether a defendant can be punished multiple times is a question of statutory construction, and
we must ask whether ‘the General Assembly intend[ed] to impose more than one punishment for
a single occurrence of criminal conduct.’” Mills, 201 A.3d at 1169 (quoting Poteat v. State, 840
A.2d 599, 603–04 (Del 2003)).
68
LeCompte v. State, 516 A.2d 898, 900 (Del. 1986) (citing Whalen v. United States, 445 U.S.
684, 92, 100 S.Ct. 1432, 38, 63 L.Ed.2d 715 (1980)). As the Third Circuit has observed, by
contrast, “cumulative punishment is presumptively valid if the statutes define distinct offenses.”
United States v. Pungitore, 910 F.2d 1084, 1116 (3d Cir. 1990) (citing Garrett v. United States,
471 U.S. 773, 793 105 S.Ct. 2407, 55 L.Ed.2d 764 (1985)). “[T]he presumption when Congress
creates two distinct offenses is that it intends to permit cumulative sentences, and legislative
silence on this specific issue does not establish an ambiguity or rebut this presumption.” Id.(quoting Garrett, 471 U.S. at 793).
69
11 Del. C. § 206; see also Mills v. State, 201 A.3d at 1167 (stating that “11 Del. C. § 206 . . . is
essentially Delaware’s codification of the test laid out by the United States Supreme Court in
Blockburger v. United States to determine whether two offenses are the same for double jeopardy
16
the statutes demonstrates “each requires proof of at least one element that is not required
to prove the others.”70
Conspiracy is divided into three categories based on the severity of the offense
contemplated.71 Conspiracy Second Degree is defined as follows:
A person is guilty of conspiracy in the second degree when, intending to
promote or facilitate the commission of a felony, the person:
(1) Agrees with another person or persons that they or 1 or more of
them will engage in conduct constituting the felony or an attempt or
solicitation to commit the felony; or
(2) Agrees to aid another person or persons in the planning or
commission of the felony or an attempt or solicitation to commit the
felony; and the person or another person with whom the person
conspired commits an overt act in pursuance of the conspiracy.72
Conspiracy First Degree is identical, except that the contemplated felony must be a class
A felony.73 These three clauses articulate three elements -- intent, agreement (obtainable
in two ways), and an overt act.74
purposes”); Jones v. State, 227 A.3d 1097, 2020 WL 1845887, at *7 (Del. Apr. 13, 2020) (TABLE)
(“The Blockburger test was codified in 11 Del. C. § 206.”).
70
Williamson v. State, 707 A.2d 350, 362–63 (Del. 1998).
71
11 Del. C. §§ 511–13.
72
11 Del. C. §§ 512.
73
11 Del. C. §§ 513.
74
See Dougherty v. State, 21 A.3d 1, 1 (Del. 2011) (“a person is guilty of conspiracy second degree
when, intending to promote the commission of a felony, ‘the person ... [a]grees to aid another
person ... in the planning or commission of the felony ... and the person or another person with
whom the person conspired commits an overt act in pursuance of the conspiracy.’”) (quoting 11
Del. C. § 512) (ellipses in original).
17
A conviction for racketeering requires proof of three elements, namely: (1) that the
defendant was associated with an enterprise; (2) that the defendant conducted the enterprise
through a pattern of racketeering activity or defendant participated in the enterprise’s
affairs through a pattern of racketeering activity; and (3) that the defendant’s conduct or
participation in the pattern of racketeering was intentional.75 An “enterprise” shall include
“any individual, sole proprietorship, partnership, corporation, trust or other legal entity,
75
Lloyd v. State, 152 A.3d 1266, 1270 (Del. 2016). In Lloyd, this Court recommended that the
Superior Court model its jury instructions on criminal racketeering after the Third Circuit’s model
instructions. The Third Circuit’s instructions list the elements as follows:
6.18.1962C RICO – Conducting or Participating in the Conduct of the Affairs of an Enterprise
Through a Pattern of Racketeering Activity; Elements of the Offense (18 U.S.C. § 1962(c))
Count (no.) of the indictment charges defendant (name) with violating the Racketeer Influenced
and Corrupt Organizations Act, also known as RICO. Under this statute, it is a federal crime for
any person who is employed by or associated with an enterprise that is engaged in or affects
interstate or foreign commerce, to conduct or to participate in the conduct of the affairs of that
enterprise through a pattern of racketeering activity.
In order to find (name) guilty of this offense, you must find that the government proved each of
the following five elements beyond a reasonable doubt:
First: The existence of an enterprise;
Second: That the enterprise was engaged in or its activities affected interstate or foreign
commerce;
Third: That (name) was employed by or associated with that enterprise;
Fourth: That (name) knowingly participated, directly or indirectly, in the conduct of that
enterprise’s affairs; and
Fifth: That (name) knowingly (conducted) (participated, directly or indirectly, in the conduct of)
that enterprise’s affairs through (a pattern of racketeering activity) (the collection of an unlawful
debt), as alleged in the indictment.
I will now explain the law that applies to these elements.
THIRD CIRCUIT MODEL CRIMINAL JURY INSTRUCTIONS, Racketeer Influence and
Corrupt Organizations (RICO), No. 6.18.1962C RICO – Conducting or Participating in the
Conduct of the Affairs of an Enterprise Through a Pattern of Racketeering Activity; Elements of
the Offense, available at https://www.ca3.uscourts.gov/sites/ca3/files/Chap%206%20RICO%
2012%202018%20rev%20draft.pdf (last visited Dec. 5, 2020). That listing of elements from the
Third Circuit’s current instructions is identical to the one we favorably referenced in Lloyd.
18
and any union, association or group of persons associated in fact, although not a legal
entity.”76 An enterprise may include illicit as well as licit enterprises.77 A “pattern of
racketeering activity” is two or more incidents of conduct within ten years of one another
that (1) constitute racketeering activity, (2) are related to the affairs of the enterprise, and
(3) are not so closely related to each other and connected in point of time and place that
they constitute a single event.78 “Racketeering activity” includes any Delaware felony, or
a misdemeanor from an enumerated list.79
Conspiracy First Degree contains an element absent from racketeering, namely, an
intent and agreement relating to a class A felony. Racketeering likewise contains unique
elements: association with an enterprise, and a pattern of multiple predicate racketeering
activity offenses within ten years of each other in service of the enterprise. The
Blockburger rule is a rule of statutory construction.80 The inquiry is whether the statutory
elements of one offense necessarily satisfy the other, not whether, in a specific case, a
single act completed both offenses.81 The offenses of Racketeering and for Conspiracy
76
11 Del. C. § 1502(3).
77
Id.
78
11 Del. C. § 1502(5).
79
11 Del. C. § 1502(9).
80
Albernaz v. United States, 450 U.S. 333, 340, 101 S.Ct. 1137, 1143, 67 L.Ed.2d 275 (1981).
81
See Blockburger, 284 U.S. at 304 (“‘A single act may be an offense against two statutes; and if
each statute requires proof of an additional fact which the other does not, and acquittal or
conviction under either statute does not exempt the defendant from prosecution and punishment
under the other.’”); United States v. Faulhaber, 929 F.2d 16, 19 (1st Cir. 1991) (securities and
mail fraud charges were not void as multiplicitous because the securities fraud statute required
fraud in connection with the purchase or sale of securities, while the mail fraud statute did not have
19
First Degree each require proof of facts not necessary to complete the other and so can
support separate convictions and punishments without offending the Double Jeopardy
Clauses.82
In his brief, White emphasizes that “racketeering,” as defined in the statute, includes
“conspiring to engage in . . . [a]ny activity constituting any felony which is chargeable
under the Delaware Code.”83 But a “Class A felony” is a narrower category than “any
felony.” The facts a jury was required to find in order to find a conspiracy predicate to
racketeering are insufficient to prove a Conspiracy First Degree. To satisfy the elements
of Conspiracy First Degree, the jury must find, in addition, that the conspiracy
contemplated a Class A felony. Class A felonies include crimes for which our General
Assembly has reserved the most serious of punishments, e.g., 11 Del. C. § 636 (Murder in
the First Degree); 11 Del. C. § 773 (Rape in the First Degree); 11 Del. C. § 787(5)
(trafficking in persons for use of body parts); 16 Del. C. § 1136(a)(3) (abuse, mistreatment,
or neglect of a resident of a long-term care facility resulting in death); 31 Del. C. § 3913(c)
abuse, mistreatment, or neglect of an impaired adult resulting in death).
White’s interpretation, if adopted, would effectively immunize racketeers from
additional liability should they conspire with their confederates to escalate their criminal
endeavors -- in for a penny, in for a pound. Such a conclusion is at odds with the General
that requirement, and the mail fraud offense required either use of mail or use of any facility of
interstate commerce).
82
White raises issues surrounding Conspiracy to Commit Racketeering more forcefully in his
second assignment of error, so we discuss it in greater depth in the next section infra.
83
Op. Br. at 18 (quoting 11 Del. C. § 1502(9) (definition of “Racketeering”).
20
Assembly’s announced intent in enacting the RICO statute to “guard against and prevent
the infiltration of racketeering into legitimate businesses,” and to reach “conduct beyond
what is traditionally regarded as ‘organized crime’ or ‘racketeering.’”84 Further, many
federal courts, construing legislative intent and applying Blockburger, have held that
imposing separate consecutive sentences for RICO violations and accompanying predicate
offenses does not violate Double Jeopardy.85 Although federal law is not controlling here,
we have described Delaware’s RICO statute as “essentially an adaptation” of the federal
one, and have found federal precedent to be helpful guidance.86
2. Conspiracy To Commit Racketeering Does Not Merge With The Other
Conspiracy Charges.
Criminal Conspiracy is one of a series of inchoate crimes defined Title 11, Chapter
5, Subchapter I of the Delaware Code. “If a person conspires to commit a number of
crimes, the person is guilty of only 1 conspiracy, so long as the multiple crimes are the
object of the same agreement of continuous conspiratorial relationship.”87 White argues
that, because all of the substantive offenses which were the objects of his various
Conspiracy counts were themselves predicate offenses establishing the pattern of
84
See 11 Del. C. § 1501 (setting forth the statute’s Statement of Purpose).
85
See e.g.,United States v. Pungitore, 910 F.2d 1084, 1108 n.24 (3d Cir. 1990); United States v.
Crosby, 20 F.3d 480, 484 (D.C. Cir. 1994) (“we hold, as have other circuits, that Congress intended
that a RICO violation be a discrete offense that can be prosecuted separately from its underlying
predicate offenses.”) (citing cases); see also infra nn. 105–107.
86
See Stroik, 671 A.2d at 1340 (stating that, “[s]ince the Delaware RICO statute is essentially an
adaptation of its federal counterpart, reliance on federal precedent in this limited factual setting is
warranted.”). As we observed in note 76 supra, we have even gone so far as to instruct the Superior
Court to model its RICO jury instructions on the Third Circuit’s. Lloyd, 152 A.3d at 1273.
87
11 Del. C. § 521(a).
21
racketeering activity, they are all objects of the same continuous conspiratorial relationship
with his Conspiracy to Commit Racketeering and so merge into it.
White argues, correctly, that the continuous conspiratorial relationship doctrine
prohibits the State from “piling on” conspiracy charges by subdividing a single ongoing
criminal conspiracy.88 When defendants enter into a single agreement to commit multiple
crimes, they are guilty of only one Conspiracy count.89 But that is no defense when the
confederates merely maintain a generalized criminal relationship, agreeing to new offenses
as the circumstances arise -- in those cases, each time they intentionally enter into a new
agreement consummated by an overt act they have fulfilled the three elements of a new
count of conspiracy and are subject to a separate conviction.90 When conspirators reach a
new agreement to commit a new crime, accompanied by a new intent, they have committed
a new offense.
88
See Alston v. State, 554 A.2d 304, 312 (Del. 1989) (“Under section 521(a), if an individual
conspires to commit several crimes, he is nonetheless guilty of only one conspiracy as long as the
multiple crimes are the object of the same agreement.”) (citing Braverman v. United States, 317
U.S. 49, 53–54, 63 S.Ct. 99, 101–102, 87 L.Ed. 23 (1942)).
89
Id.90
See Corbin v. State, 608 A.2d 726, 1991 WL 316965, at *5 (Del. Dec. 10, 1991) (TABLE):
“While the evidence shows that each of the bank robberies, except the sixth
robbery, were committed by [the codefendants] in essentially the same manner,
there is no evidence which shows that there was a single agreement to commit a
continuous series of robberies over a period of time. In fact, [the other defendant]
testified that there was not a single overreaching agreement. Instead, the record
shows that [the codefendants] developed a separate agreement or plan for each
robbery on the spur of the moment as they ran out of money. Therefore, we find
that there was sufficient evidence for any rational jury to conclude beyond a
reasonable doubt that there were six separate conspiracies to commit the bank
robberies, and we affirm [the defendant-appellant’s] convictions on each of the six
counts of conspiracy in the second degree.”
22
The cases in which this Court has found that conspiracies merge have all involved
a single agreement in contemplation of a single criminal transaction,91 or a single
agreement to commit a spree of related crimes all contemplated at the time of the
agreement.92 This accords with the precept in multiplicity that where a single violation
merely continues, it remains a single count; but where a violation is committed “uno ictu,”
meaning ‘with one blow,’ each violation is a separate offense.93
Here, the two convictions for Conspiracy First Degree relate to two separate
agreements, two months apart, plotting the murder of Markevis Stanford. Where the June,
2017 plot addressed by Count 4 related to White’s alleged agreement with Dion Oliver,
Michael Pritchett and others to murder Stanford,94 the August, 2017 plot related to a later
agreement reached with Ira Brown95 to kill Stanford while both were incarcerated in the
James T. Vaughn Correctional Center.96 The second plot was necessarily not contemplated
until the first had failed. Precisely because Brown was incarcerated, White could not have
contemplated promoting or facilitating Stanford’s murder at Brown’s hands until after both
91
See Liu v. State, 628 A.2d 1376, 1387–88 (Del. 1993) (where a person conspires to set a single
fire resulting in multiple deaths, the multiple murder and arson charges support only a single
conspiracy count).
92
See Alston, 554 A.2d at 312 (“the evidence shows only one agreement, viz., to rob whoever left
the hotel that night. We agree that the multiple robbery offenses were the object of one agreement
and thus may support only one conspiracy conviction.”).
93
Blockburger, 284 U.S. at 302 (quoting In re Snow, 120 U.S. 274, 286, 7 S.Ct. 556, 562, 30 L.Ed
658 (1887)).
94
App. to Ans. Br. at B1261 (State’s Closing Argument); App. to Op. Br. at A26 (Indictment).
95
App. to Op. Br. at A37 (Indictment).
96
App. to Ans. Br. at B1270 (State’s Closing Argument); App. to Op. Br. at A37 (Indictment).
23
the failure of the first plot and Stanford’s incarceration at the same institution. Two
separate criminal conspiracies involving different people whose objects relate to two
separate attempts on the life of a single person support two separate criminal charges.
Likewise, White’s indictments for Conspiracy Second Degree reflect conspiracies
reached with different individuals to commit different crimes on different dates than the
agreements referenced in his Conspiracy First Degree convictions. 97 The intent,
agreement, and overt acts to bribe the family of Jashown Banner could only have occurred
after Banner was shot on June 6, 2017; but, the intent, agreement, and overt acts relating
to the attempt to murder Stanford necessarily occurred before that same shooting. These
events relate to different conspiracies. Because the State charged, and the jury found,
separate conspiracies with different agreements reached at different times with different
97
We observe that where a defendant is charged with successive violations of the same conspiracy
statute, and where a defendant has alleged that the State has impermissibly split a single conspiracy
into multiple conspiracies, various courts have considered a number of factors, including: (1)
whether there was a common goal among the conspirators, (2) whether the agreement
contemplated bringing to pass a continuous result that will not continue without the continuous
cooperation of the conspirators, (3) the extent to which the participants overlap in the various
dealings, (4) the location of the two alleged conspiracy and whether it is the same, (5) whether
there is a significant degree of temporal overlap between the conspiracies charged, (6) whether
there is an overlap of personnel between the two conspiracies (including unindicted as well as
indicted co-conspirators), (7) the overt acts charged, and (8) the role played by the defendant. See
United States v. Rigas, 605 F.3d 194, 213 (3d Cir. 2010); see also United States v. Kemp, 500 F.3d
257, 287 (3d Cir. 2007) (quoting United States v. Kelly, 892 F.2d 255, 259 (3d Cir. 1989); United
States v. Pierre, 795 F.3d 847, 849–50 (8th Cir. 2015); United States v. Wheeler, 535 F.3d 446,
449 (6th Cir. 2008). This list, intended only as helpful guidance, is not exhaustive and certain
factors may be more relevant than others and merit greater weight given the circumstances.
24
people to accomplish separate criminal objects, the trial court properly imposed three
separate sentences.98
Nor does Conspiracy to Commit Racketeering merge with the Conspiracy First
Degree or Conspiracy Second Degree counts. Conspiracy to Commit Racketeering is an
offense created by the RICO statute itself, rather than the inchoate crimes chapter. 99 The
statute simply instructs that, “[i]t is unlawful for any person to conspire or attempt to violate
any of the provisions” of the substantive criminal racketeering statute.100 Conspiracy to
Commit Racketeering requires proof of (1) the existence of an enterprise; (2) that the
defendant was associated with the enterprise; and (3) that the defendant agreed to
participate in the conduct of the enterprise’s affairs through a pattern of racketeering
activity.101 The statute also contains no requirement of an overt act, and the federal RICO
statute on which it is based102 “broadened conspiracy coverage by omitting” that
requirement.103
98
As noted above, the Superior Court imposed a single sentence -- two years at Level V suspended
immediately for one year at Level III -- for all eight Conspiracy Second Degree counts, and a
separate sentence for each of the two Conspiracy First Degree convictions.
99
11 Del. C. § 1503(d).
100
Id.
101
Stroik, 671 A.2d at 1342 (citing Joseph, 835 F.2d at 1151).
102
See id. at 1340 (“the Delaware RICO statute is essentially an adaptation of its federal
counterpart.”).
103
Salinas v. United States, 522 U.S. 52, 64, 118 S.Ct. 469, 477, 139 L.Ed.2d 352 (1997); see also
United States v. Williams, 974 F.3d 320, 368 (3d Cir. 2020) (no overt act element under the federal
RICO conspiracy statute).
25
Moreover, although not binding here, the United States Court of Appeals for the
Third Circuit has concluded that “Congress intended separate prosecutions and cumulative
punishments for predicate offenses and substantive RICO.”104 In addition, it observed that
several other Courts of Appeal have adopted the interpretation that “Congress intended
separate convictions or consecutive sentences for a RICO offense and the underlying
predicate offense.”105 The Third Circuit has found that the legislative intent to permit
cumulative punishment for RICO and for underlying predicate acts also extends to
approval of consecutive sentences for Conspiracy to Commit Racketeering and predicate
conspiracies.106 These cases are helpful guidance.
104
United States v. Grayson, 795 F.2d 278, 283 (3d Cir. 1986); see also United States v. Garcia,
754 F.3d 460, 474 (7th Cir. 2014) (stating that, “[t]he only question before us in thus ‘whether
Congress, in making the predicate RICO acts relevant to sentence determinations via the
Sentencing Guidelines, intended to allow defendants to receive consecutive sentences for both the
predicate acts and the RICO offenses,’” and answering that, “[w]e held in [United States v.
Morgano, 39 F.3d 1358, 1366 (7th Cir. 1994)] that Congress intended exactly this, and every other
circuit to consider the questions has agreed with this view.”).
105
See Grayson, 795 F.2d at 283 (citing United States v. Hawkins, 658 F.2d 279 (5th Cir. Unit A.
1981); United States v. Corrando, 304 F.3d 593, 609 n.8 (6th Cir. 2002) (“we have long maintained
that the imposition of consecutive sentences for violation of RICO and accompanying predicate
offenses does not violate the Double Jeopardy Clause.”) (citing United States v. Sutton, 700 F.2d
1078, 1081 (6th Cir. 1983); United States v. Polanco, 145 F.3d 536, 542 (2d Cir. 1998) (“It is well
settled that Congress sought to permit cumulative sentences for a RICO convictions and the
predicate offenses upon which the RICO violation is premised.”); United States v. Boylan, 620
F.2d 359 (2d Cir. 1980); United States v. Aleman, 609 F.2d 298, 306 (7th Cir. 1979); and United
States v. Rone, 598 F.2d 564 (9th Cir. 1979)).
106
United States v. Pungitore, 910 F.2d 1084, 1108 n.24 (3d Cir. 1990) (noting that “other courts
have approved consecutive sentences for RICO conspiracies and predicate conspiracies for reasons
similar to those asserted in Grayson.”) (citing United States v. Kragness, 830 F.2d 842, 863–64
(8th Cir. 1987); United States v. Mitchell, 777 F.2d 248, 264 (5th Cir. 1985)). As the Third Circuit
explained in Pungitore, “[i]t is important to bear in mind that the RICO conspiracy and the
predicate conspiracy are distinct offenses with entirely different objectives.” 910 F.2d at 1135.
The objective of a RICO conspiracy is to “‘assist the enterprise’s involvement in corrupt
endeavors,’” whereas “the objective of the predicate conspiracy is confined to the commission of
a particular substantive offense. . . .” Id.26
The question in multiplicity inquiries is “whether the General Assembly intended to
impose more than one punishment for a single occurrence of criminal conduct.” 107 That
test is satisfied when each offense “requires proof of a fact which the other does not.”108
Conspiracy to Commit Racketeering is an agreement to participate in the conduct of affairs
of an enterprise through a pattern of racketeering activity. Conspiracy First Degree is an
agreement by a person, acting intentionally, to aid another person in the planning or
commission of a class A felony where either the defendant or the other person commits an
overt act in pursuit of the conspiracy. Conspiracy Second Degree is a similar agreement,
but in contemplation of a lesser felony. The inchoate Conspiracy statutes contain elements
absent from Conspiracy to Commit Racketeering and vice versa. They are not
multiplicitous.
In explaining our conclusions that no Double Jeopardy violations are established
here, we are not suggesting that the distinct nature of the offenses should prompt
prosecutors reflexively to seek separate convictions in every case, or for trial judges to
necessarily impose separate, consecutive sentences in each such instance. Such decisions
fall within the exercise of reasoned discretion and should be based upon the facts and
circumstances of each case. As discussed further below in the section of this opinion on
White’s sentencing challenges, the Superior Court’s exercise of discretion in imposing the
harsh sentence here is justified by the record.
107
Mills, 201 A.3d at 1169.
108
Id. at 1175 (citing Blockburger, 284 U.S. at 304) (emphasis added).
27
B. The Accomplice Liability Instructions
White contends that the placement of the accomplice liability instructions in the
charge to the jury, and the absence of instructions advising which charges were subject to
accomplice liability, could have led to jury confusion and constitute plain error. The jury
was instructed on the elements of the multiple felony conspiracy offenses pending against
each defendant. The jury was later instructed on accomplice liability toward the end of the
instructions separate from the instructions for each offense. As White contends, “[t]he
general rule is that all elements of a crime be listed in a single instruction which provides
a complete statement of the elements of the crime charged.”109 White argues that the
accomplice liability instruction did not specify which substantive offense it applied to, and,
therefore was likely interpreted by the jury to apply to all offenses, including the conspiracy
offenses. He then argues that accomplice liability is inapplicable to a conspiracy offense,
and that this placement constitutes plain error because it “likely misled the jury into
thinking that they could convict [White] of conspiracy as an accomplice to the
conspiracy.”110
White does not challenge the substance of any of the instructions, only the order in
which the instructions were given. He did not cite in his briefing any authority for his
“general rule” about the order of instructions, but instead focuses on the distinction
109
Op. Br. at 26.
110
Op. Br. at 29–30.
28
between accomplice liability and the independent crime of conspiracy. 111 At oral
argument, White relied on Probst v. State, a case where we found plain error based in part
upon the order of the instructions and on the likely jury confusion due to the instructions’
use of masculine-gendered pronouns.112 In that case, Probst was indicted on the theory that
she alone shot the victim. The State introduced a new theory of liability in its closing
argument, namely, that Probst’s brother, Miller, actually shot the victim at Probst’s urging.
Thus, two theories were presented to the jury: (i) that Probst shot the victim, or (ii) that
Miller shot the victim and Probst was the accomplice. When the trial court instructed the
jury on Probst’s potential liability for Miller’s conduct, it incorrectly used masculine
gender pronouns to describe the female Probst. Following that instruction, the trial judge
instructed the jury on defenses applicable to Miller. The court then returned to the felony
weapons charge against Probst using masculine pronouns to describe Probst.
We held that “the incorrect use of masculine gender pronouns in an accomplice
liability instruction, where the alleged principal is male and the alleged accomplice is a
female, made it likely that the jury would be confused.”113 We also found it likely that
confusion might occur with regard to the felony weapons charge by its placement following
the instructions about Miller’s possible justification for shooting. We said that, “as a result
111
White correctly cites to Manlove v. State, 901 A.2d 1284, 1288 (Del. 2006) for our explanation
of the distinction:
“A conspiracy requires an agreement between co-conspirators, but the object of the conspiracy
need not be accomplished. For accomplice liability, generally no prior agreement is required, but
the underlying crime must have occurred.”
112
547 A.2d 114 (Del. 1988).
113
Id. at 120.
29
of this placement, the jury may have been left with the impression that Probst was also
charged with the weapons offense as an accomplice when, in fact, she was only charged
with this offense as a principal.”114 Based upon the combination of these two grounds, we
reversed Probst’s convictions.
White did not object to the order in which the instructions were given at the time,
and so he concedes he must show plain error. Thus, he must show not merely that the
ordering of the instructions violated his entitlement to a “correct statement of the substance
of the law,”115 but must show that it was a “basic, serious, and fundamental” 116 defect, or
“clearly show[s] manifest injustice.”117 We do not think White’s assignment of error
regarding the order of the instructions constitutes plain error.
“[J]ury instructions must be viewed as a whole.”118 Even if the instructions contain
a few inaccuracies, “this Court will reverse only if such deficiency undermined the ability
of the jury “to intelligently perform its duty in reaching a verdict.”119 A trial court’s
instruction “will not serve as grounds for reversible error if it is ‘reasonably informative
and not misleading, judged by common practices and standards of verbal
communication.’”120
114
Id.115
Miller v. State, 224 A.2d 592, 596 (Del. 1966).
116
Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).
117
Id.118
Jones v. State, 227 A.3d 1097 (Del. Supr. 2020).
119
Probst, 547 A.2d at 119.
120
Id.30
This Court has carefully reviewed the jury instructions. The trial court told the jury
it would “describe the crime charged and the essential elements that the State must
prove.”121 The trial court carefully reviewed each charge with the jury. The court
instructed that each element of an offense must be proven beyond a reasonable doubt:
You will be required to reach a separate verdict for each offense. Each
verdict must be independent of your decision on any other. For each separate
charge, if you find that the State has proved all of the elements beyond a
reasonable doubt, you should find a defendant or the defendants guilty of that
crime. If you find that the State has not proved every element of an offense
beyond a reasonable doubt, then you must find a defendant or the defendants
not guilty of that crime.”122
The instructions for each conspiracy count recited, among other specified information for
that count, that White, on the listed date, in New Castle County, “did agree” with the one
or more of the listed persons to “commit said crime” that one or more of them did commit
an overt act in furtherance of the conspiracy, and that the defendant or a co-defendant acted
intentionally.123 After setting forth the elements of Conspiracy Second Degree, for
example, the court instructed that:
If, after considering all of the evidence, you find that the State has established
beyond a reasonable doubt that a defendant or defendants acted in such a
manner as to satisfy all of the elements that I have just stated, at or about the
date and place stated in the indictment, you should find the defendant or
defendants guilty of Conspiracy -- defendant guilty of Conspiracy Second
Degree. If you do not so find, or if you have a reasonable doubt as to any
element of this offense, you must find the defendant not guilty of Conspiracy
Second Degree.124
121
App. to Op. Br. at A127 (Jury Instructions).
122
Id.123
Id. at A138, A143.
124
Id. at A143.
31
After other general instructions on different points, the trial judge instructed the jury on the
separateness of the charges:
The defendants are each charged with separate offenses that are set forth in
the indictment. These are each separate and distinct offenses, and you must
independently evaluate each offense. The fact that you reach a conclusion
with respect to one offense, or with regard to one defendant, does not mean
that the same conclusion will apply to any other charged offense, or to any
other charge defendant. Each charge before you is separate and distinct, and
you must evaluate evidence as to one offense independently from evidence
of each other offense and render a verdict as to each individually.125
Then after a few more intervening general instructions, the trial judge instructed the
jury on accomplice liability. There is no contention that the instruction was substantively
inaccurate. Other general instructions followed, and then the court explained the verdict
form. None of the jurors expressed confusion. But White’s concern, at least in part,
appears to be that the jury was confused and perhaps thought that no agreement would be
needed to find White guilty of conspiracy. Put differently, he argues that the jury could
have found him guilty of conspiracy even if he acted unilaterally.
“The trial judge is in the best position to assess the risk of any prejudice resulting
from trial events.”126 We have, on at least one other occasion, refused to find plain error
from jury confusion due to presence of both accomplice and conspiracy instructions when
the instructions were accurate statements of the law, the evidence supports the jury’s
125
Id. at A146.
126
Sykes v. State, 953 A.2d 261, 267 (Del. 2008) (quoting Brown v. State, 897 A.2d 748, 752 (Del.
2006)).
32
findings, and where there was no evidence of jury confusion.127 Because he did not raise
it below, we are limited to a review of the record to find support for White’s theory of jury
confusion.
We see none. To the contrary, the record shows that the jury acted with discernment
on this issue, not confusion. In convicting White on Counts Six and Seven but acquitting
him on Counts Eight and Nine, all of which were Conspiracies Second Degree to commit
Drug Dealing Heroin with different people on different days, the record does not support
White’s theory that the jury was confused. Contrary to White’s assertions, the evidence
supports the conclusion that White conspired with others with respect to each of his
conspiracy convictions and we see no risk of jury confusion and no plain error. Given the
care taken by the trial judge to explain the required elements of the charges, the lack of any
challenge to their substance, and the lack of any evidence of jury confusion, we find no
merit to this claim, let alone plain error.
C. There Was No Plain Error Regarding The Indictment
White’s fourth claim of error is that Count Sixteen sets forth an accusation of
Conspiracy Second Degree to commit a drug dealing offense, but incorporates itself (Count
Sixteen) instead of referring either the prior count or the drug at issue, cocaine (Count
127
See Turner v. State, 25 A.3d 774, 776 (Del. Supr. 2011). The defendant in Turner faced charges
related to cocaine trafficking, including conspiracy. Id. Turner argued that “[b]ecause one could
aid another without there being any agreement, . . . accomplice liability can be based on a ‘lower’
level of culpability than conspiracy,” and that, “the difference between ‘aiding’ and ‘agreeing’
confused the jury.” Id. Because he could point to no language that would support confusion,
because the instruction was an accurate statement of the law, and because the evidence presented
supported the instruction, we found no error. Id.33
Fifteen).128 He argues that this clerical error renders the charge defective and void.129 We
disagree.
In the grand jury’s indictment, Count Sixteen charges White with Drug Dealing
Cocaine and Count Seventeen alleges Conspiracy Second Degree to commit Count
Sixteen.130 This indictment contains no circular reference. But, prior to trial, the Superior
Court issued a new indictment under its Rule 7(e), containing 24 charges.131 The trial
reindictment eliminated Count Twelve and renumbered the subsequent charges.132 Count
Sixteen retained the same internal numbering, however, and so charges conspiracy to
128
Op. Br. at 31–32.
129
See Oral Argument Video: 19:00 – 19:42, https://livestream.com/accounts/5969852/
events/9276126/videos/211529999/player:
“Count Sixteen in the indictment states this is a conspiracy to commit drug dealing
as set forth in count Sixteen. It usually -- they put the wrong number in the count
Sixteen. It should have been ‘Count Sixteen conspiracy to commit drug dealing as
set forth in a different count that is a count for drug dealing. If you look at the
count, it doesn’t make sense. You can’t say -- you don’t know what drug dealing
they’re talking about because it doesn’t relate to a separate count.”
130
App. to Op. Br. at A34 (Indictment).
131
App. to Reply Br. at AR2–19 (Trial Reindictment).
132
Count Ten in the grand jury indictment charged aggravated possession of heroin over the period
from March 1, 2017 through October 8, 2018. App. to Op. Br. at A31 (Indictment). Counts Eleven
through Fifteen were each charges of Conspiracy Second Degree alleging White’s conspiracies
with different individuals on different dates to commit Count Ten. Id. at A31–33. The eliminated
Count Twelve alleged that White conspired with Jerome Pritchett on or about August 23, 2017.
Id. at A32.
34
commit “Drug Dealing as set forth in Count Sixteen.”133 The State concedes this error, but
alleges it is “at best a typographical error of no consequence.”134
Although the written jury instructions stated that Count Sixteen incorporates
“planning or commission of Drug Dealing- Cocaine, as alleged in Count 16,”135 when
instructing the jury and reading the list of charges, the trial court addressed the
typographical errors as follows:
“COUNT SIXTEEN is CONSPIRACY SECOND DEGREE, and it reads
that DWAYNE WHITE and ERIC LLOYD, on or between the 1st day
January 2015, and the 8th day of October, 2018, in this County and State,
when intending to promote or facilitate the commission of Drug Dealing as
set forth in Count Sixteen, which is -- I think should read Count Fifteen -- as
set forth in Count Fifteen, which is incorporated by reference. . . .”136
Thus, the trial court orally corrected the error when instructing the jury. Later in the oral
charge, the judge, without reciting the numerical reference for Drug Dealing, instructed the
jury that “CONSPIRACY SECOND DEGREE, Count Sixteen, reads identically to the
Conspiracy instructions I’ve read to you otherwise except that the specific offense
133
App. to Reply Br. at AR15 (Trial Reindictment). Though White does not raise it, Count
Nineteen of the grand jury indictment, when it became Count Eighteen in the trial indictment,
made a similar error and alleges conspiracy to commit “Money Laundering as set forth in Count
Eighteen.” Id. at AR16. Again, the trial court orally corrected the numbering error. App. to Op.
Br. at A132 (Jury Instructions) (“Count EIGHTEEN is CONSPIRACY SECOND DEGREE, and
it reads that ERIC LLOYD and DWAYNE WHITE, . . . when intending to promote or facilitate
the Commission of Money Laundering as set forth in Court EIGHTEEN -- but I think that should
read COUNT SEVENTEEN -- which is incorporated by reference . . .”).
134
Oral Argument Video: 31:05–32:21. https://livestream.com/accounts/5969852/events/
9276126/videos/211529999/player.
135
App. to Reply Br. at AR20.
136
App. to Op. Br. at A132 (Jury Instructions).
35
identified in Count Sixteen is Drug Dealing Cocaine.”137 The trial judge is in the best
position to assess the risk of any prejudice from trial events.138 The judge’s oral instruction
shows that he was cognizant of the typographical error and on guard against jury confusion.
“The purpose of an indictment is to put the accused on full notice of what he is
called upon to defend, and to effectively preclude subsequent prosecution for the same
offense.”139 White does not challenge the accuracy or completeness of the grand jury
indictment, which gave him proper notice. Instead, his argument boils down to the view
that a typographical error created by the indictment amendment somehow voids the count.
Because the error was corrected by the trial judge in the presence of the jury, we find no
merit to the claim.140
D. The Trial Court Did Not Commit Plain Error In Allowing Testimony from
Attorney Benson
White contends that the trial court committed plain error by allowing the State to
examine attorney Joseph Benson “in a way that suggested he was the ‘go to’ attorney for
members of the alleged enterprise and that any individual represented by him must have
been associated with the alleged enterprise.”141 White had no objection to portions of
137
App. to Ans. Br. at B1324; see also App. to Op. Br. at A144 (Jury Instructions) (emphasis
added).
138
Sykes, 953 A.2d at 267 (quoting Brown v. State, 897 A.2d 748, 752 (Del. 2006)).
139
Dahl v. State, 926 A.2d 1077, 1081 (Del. 2007).
140
See also State v. Blendt, 120 A.2d 321, 323 (Del. Super. 1956) (rejecting a claim that a
typographical error in the indictment failed to put the defendant on notice of the accusation.
Superior Court Rule 7(e) permits an amendment of an Information “if no additional or different
offense is charged and if substantial rights of the defendant are not prejudiced.”) Superior Court
Crim. R. 7(e).
141
Op. Br. at 33.
36
Benson’s testimony.142 But he complains that the State improperly elicited, and the
Superior Court improperly admitted, other testimony about Benson having previously
represented many of White’s codefendants, and that Benson was the registered agent of
many of the LLCs at issue in this case.143 As White characterizes it, that testimony “was
not relevant to any issue other than to suggest that Benson was the attorney for the members
of the enterprise, and to reinforce the existence of a criminal enterprise based upon his
representation of a number of its members.”144 White contends that this testimony
improperly suggested to the jury that the exercise of one’s constitutional right to counsel
may be used as evidence of guilt.
There was no error in admitting this testimony. We agree that evidence that a single
attorney represented members of an alleged conspiracy, without more, would have no
probative force. But the trial court was cognizant of this concern and instructed the jury as
follows:
This case involved the testimony of a former attorney for one or more of the
defendants. A defendant has a constitutional right to an attorney. The fact
alone that a defendant, at any time, engaged the services of an attorney may
not be considered by you as evidence of guilt in this case. You may,
however, consider the testimony of the attorney in evaluating the remainder
of the evidence in this case.145
142
See Op. Br. at 33–34 (“Attorney Benson’s direct testimony regarding how material under a
protective order was inadvertently provided to his client, Zaire Miller, was not objectionable.”).
143
Id. at 33–35.
144
Id. at 35.
145
App. to Op. Br. at A146 (Jury Instructions).
37
There is no evidence to suggest that the jury did not follow this instruction.146
Although the mere joint representations of alleged co-conspirators has no probative
force, “[w]hen other suspicious circumstances are present, the decision of a number of
persons to retain the same lawyer may be probative of an association among them.”147
Here, there was more than Benson’s mere representation of members of the enterprise.
Several witnesses testified that members of the enterprise would hire Benson to represent
fellow members charged with crimes.148 Members of the enterprise would also raise money
to pay Benson to represent one of their members. Benson also testified that he was
unwittingly listed as the registered agent for an LLC used by Lloyd to launder money. 149
Benson provided a member of the enterprise, Zaire Miller, with discovery material that was
under a protective order.150 The jury also heard a recording of a call between White and
Benson during which White inquired about Michael Pritchett’s case when Benson was
146
See Phillips v. State, 154 A.3d 1146, 1154 (Del. 2017) (“Juries are presumed to follow the trial
judge’s instructions.”) (quoting Revel v. State, 956 A.2d 23, 27 (Del. 2008)).
147
United States v. Simmons, 923 F.2d 934, 949 (2d Cir. 1991) (citing United States v. Castellano,
610 F.Supp. 1151 (S.D.N.Y. 1985)).
148
See App. to State’s Ans. Br. at B608–12 (Testimony of Joseph Benson) (Describing various
occasions on which he or his firm represented Dontae Sykes, Tyrone Roane, Michael Pritchett,
William Wisher, and Markevis Sanford in criminal matters); see also United States v. Simmons,
923 F.2d at 949 (stating that, “[w]e have previously indicated that payment of attorneys’ fees by
one individual on behalf of other suspected members of a criminal enterprise ‘may imply facts
about a prior or present relationship’ between the benefactor and his beneficiaries,” and that,
“evidence of such payments is highly relevant to whether the benefactor is the head of a criminal
enterprise as defined by the RICO statute.”).
149
App. to Op. Br. at A94 (State’s Opening Statement); App. to State’s Ans. Br. at B602
(Testimony of Joseph Benson).
150
App. to State’s Ans. Br. at B1228 (Testimony of Det. Barnes).
38
representing Pritchett.151 These facts suggest that the members were linked. To prove their
charge of racketeering, the State had to prove the existence of an enterprise. This required
proof of “any individual, sole proprietorship, partnership, corporation, trust or other legal
entity, and any union, association or group of persons associated in fact, although not a
legal entity.”152 Benson’s testimony was relevant to this inquiry.153 Moreover, we see no
unfair prejudice here. The State is not attempting to suggest that White’s exercise of his
Sixth Amendment right to counsel is itself indicative of guilt.154 Benson’s testimony was
admissible and relevant and the Superior Court made no error in admitting it.
E. The Superior Court Did Not Commit Plain Error In Sentencing White
For the first time on appeal, White contends that the trial court violated Delaware
Supreme Court Administrative Directive No. 76 when it failed to adequately specify the
reasons for “imposing sentences so far in excess of SENTAC guidelines . . . [and]
application of Section 4204(k).”155 He further contends that the Superior Court relied on
false factual predicates when it sentenced him. We reject both claims of plain error.
151
App. to Op. Br. at A112–113. Benson testified that he was addressing a potential conflict.
Benson said, “that was I guess Mr. White asking whether or not I was allowed to remain as Michael
Pritchett’s attorney or would they -- would that group have to hire another attorney.” Id. at 114.
152
11 Del. C. § 1502.
153
See Castellano, 610 F.Supp. at 1153–54 (“any evidence that tends to show common interests,
economic relationships, or a hierarchical structure involving the defendants [and other members
of the enterprise] [is] relevant to this element of the [State’s] case.”); id. at 1160 (“When other
suspicious circumstances are present, the decision of a number of persons to retain the same lawyer
may be probative of an association among them.”).
154
See United States v. Whitten, 610 F.3d 168, 194 (2d Cir. 2010) (“The prosecution cannot use
the defendant’s exercise of specific fundamental constitutional guarantees against him at trial”)
(quoting Burns v. Gammon, 260 F.3d 892, 896 (8th Cir. 2001)).
155
Op. Br. at 40.
39
1. Administrative Directive No. 76
On September 15, 1987, the Supreme Court issued Administrative Directive
Number 76.156 That directive implemented the sentencing guidelines that had been
developed by SENTAC, and provided, in part, that:
2. Any judge who finds a particular sentencing standard inappropriate in a
particular case because of the presence of aggravating or mitigating or other
relevant factors need not impose a sentence in accordance with the standards
but such judge shall set forth with particularity the reasons for the
deviation . . . (emphasis added).
3. The sentencing standards are considered voluntary and non-binding; thus,
no party to a criminal case has any legal or constitutional right to appeal to
any court a statutorily authorized sentence which does not conform to the
sentencing standards.
As we have explained:
This Court’s Administrative Directive Number Seventy-Six requires that
reasons be given for deviations from SENTAC’s sentencing guidelines
because this Court does have appellate jurisdiction to review criminal
sentences on the basis of alleged: unconstitutionality; factual predicates
which are either false, impermissible, or lack minimum indicia of reliability;
judicial vindictiveness, bias, or sentencing with a “closed mind;” and any
other illegality. Except for these constitutional and legal constraints, it is
well-established that appellate review of criminal sentences is limited in
Delaware to a determination that the sentence is within the statutory limits.
Delaware, unlike the federal and several state jurisdictions has not provided
for appellate review of criminal punishments that deviate from sentencing
guidelines.157
156
A260–61.
157
Siple v. State, 701 A.2d 79, 83 (Del. 1997) (emphasis in original) (collecting cases).
40
Thus, the trial court must explain its reasons for doing so, “but it is authorized to exceed
the SENTAC guidelines without making any factual findings beyond those reflected in the
jury’s verdict.”158
Prior to imposing sentence, the Superior Court addressed White on the record.
Because White challenges the adequacy of the explanation the Court placed on the record,
we include that explanation here:
I’ve given this case considerable thought, obviously, presided over a number
of pretrial motions. I presided over trial. I’ve conferred with all of the
Presentence investigators personally for all three of the defendants, trying to
come up with the appropriate sentence in this case.
I have to start off with the fact that you were convicted of very serious crimes,
21, I believe there were, and you’ll be sentenced on each of them. The most
serious of which, to my mind is the racketeering case, because the State said,
and as the statute says, racketeering addresses the business of crime and
prohibits the existence of a criminal enterprise. We heard much of that in the
trial, and I think by the very nature of the racketeering charge, a lot has come
into evidence to explain how communications are made, what’s done with
profits of crime, et cetera.
And it’s true, and I’m taking into account, that as [your attorney] said, in
effect, you didn’t contest the drug charges, or most of them. It was the
attempted murder charge for which you were acquitted, and I take that into
account as well.
But I can’t overlook the fact that you were instrumental in leading a very,
very serious criminal enterprise, where we can only guess at the number of
victims of the poison that was spread, the cocaine, the heroin, the -
cheapening and worsening of the quality of life in Wilmington and in
Delaware because of this large scale, sophisticated, criminal enterprise.
158
Benge v. State, 862 A.2d 385, 2004 WL 2743431, at *2 (Del. Nov. 12, 2004) (emphasis added)
(TABLE); see also 11 Del. C. § 4204(n); Gibson v. State, 2020 WL 7213227 (Del. Dec. 3, 2020)
(TABLE). The explanation requirement ensures the creation of a record susceptible to appellate
review. Absent an explanation, a defendant would have no way to challenge a sentence he or she
believed was based on one of the enumerated improper grounds.
41
It’s true that you have, quote, just one prior felony, and I’m taking that into
account, but I saw so much at trial of the - as the State said in its Sentencing
Memorandum - how you operate, how you interact with other people, the
huge amount of drugs that were involved in transactions, including, among
other people, the William Wisher occasion, the vast amounts of money spent
at the Delaware casinos, the bribery charge. And that goes directly to the
importance and sanctity of the criminal justice process, the bribing of a
witness.
Evasion of tax is serious also, as [the prosecutor] noted, because this was
more than just a drug deal or several drug deals, where there was profit to a
drug dealer. It was an enterprise, and we carefully defined “enterprise” to
the jury.
I do think a sentence over the presumptive guidelines is warranted in this
case. And I think, on balance, that the State has not completely, but
accurately, set forth the aggravating factors, which includes prior violent
criminal conduct, the 2012 Possession with Intent. And the fact that you
didn’t learn from that offense and kept on going by becoming, especially
when Eric Lloyd was in prison, the mover and shaker of this racketeering
criminal enterprise.
I do think that now there’s some evidence of remorse. The State has said not,
but - and I do take into account, as a I said, as I think I should, the fact that
you didn’t contest the drug charges in the indictment, only the attempted
murder cases.
The Conspiracy First Degree charges are very serious, because that was
conspiracy to commit murder, and you were found guilty of those.
The bottom line is I think a very significant and severe sentence is required.
I don’t think that a 70-year sentence is appropriate, as I’ve tried to strike the
balance in this, but I do think that a 50-year sentence is appropriate, and I’m
going to impose that.159
White asserts that the Superior Court erred by not listing any aggravating
circumstances in the sentencing order. The fact that the trial court did not recapitulate its
reasoning for the departure on the written order is not grounds for reversal. When departing
159
App to Op. Br. at A251–54 (Sentencing Hearing, Oct. 18, 2019).
42
from the guidelines, the “factor(s) leading to the exceptional sentence must be stated for
the record, and should be identified in the sentencing order or on the sentencing
worksheet.”160 We note the difference between the permissive language (“should”) and
the mandatory language (“must”).161 The trial court did justify its departures on the record.
Having done so, the trial court’s decision not to include such a repetition in the sentencing
order is not error, let alone plain error.
2. White’s Other Challenges to The Superior Court’s Sentence Lack Merit
Next White asserts that the Superior Court “failed to sufficiently cite any
aggravating circumstances, except a reference to the State’s suggested aggravating
circumstances” to support departure.162 He further argues that “to the extent that the Court
adopted the State’s aggravating circumstances,” they constituted “an insufficient factual
predicate.”163
White then challenges each of the State’s suggested grounds for upward departure
in turn, arguing that each – prior violent criminal conduct, undue deprecation of offense,
lack of remorse, vulnerability of victim, and excessive cruelty -- was based on inadequate
factual premises or constituted an error of law.164 He also asserts that the State’s overall
160
Brochu v. State, 133 A.3d 558, 2016 WL 690650, at *4 n.28 (Del. Feb. 19, 2016) (TABLE)
(quoting SENTAC Benchbook) (emphasis added); see also 11 Del. C. § 4204(n) (“Whenever a
court imposes a sentence inconsistent with the presumptive sentences adopted by the Sentencing
Accountability Commission, such court shall set forth on the record its reasons for imposing such
penalty.”).
161
Walls v. State, 223 A.3d 882, 2019 WL 6690575, at *2 (Del. Dec. 6, 2019) (TABLE).
162
Op. Br. at 40.
163
Id.164
Id. at 41–46.
43
closing argument baselessly blamed White and his enterprise for trends of violence in
Wilmington.165 Lastly, he objects to the Court imposing consecutive sentences for
Aggravated Acts of Intimidation and the Conspiracy First Degree pertaining to plot to kill
Stanford during his imprisonment when the State, in its request for an overall sentence
twenty years longer than the Court imposed, had sought concurrent sentencing on those
two crimes.166 He insists that concurrent rather than consecutive sentences are appropriate
in this case.167 None of White’s claims have merit.
First, the Superior Court fully justified its departure from SENTAC Guidelines.
White points out that the SENTAC presumptive sentence for Class B felonies is two to five
years’ incarceration and is up to fifteen months for Class E felonies.168 The Superior Court
imposed sentences longer than these guidelines with respect to five counts. For the Class
B felonies of Racketeering,169 Drug Dealing Heroin,170 and Aggravated Acts of
Intimidation,171 the Superior Court imposed Level V terms of twenty, ten, and ten years
165
Id. at 45–46.
166
Id. at 46–47.
167
Id. at 47 (citing 11 Del. C. § 3901(d)).
168
Op. Br. at 39–40. White’s brief misidentifies this as the range for Class G felonies, and
misidentifies Conspiracy First Degree as such, but this appears to be a typographical mistake.
169
See 11 Del. C. § 1504(a) (Racketeering is a Class B felony).
170
16 Del. C. § 4752(b)
171
See 11 Del. C. § 3533 (Aggravated Acts of Intimidation is a Class B felony).
44
respectively.172 The Superior Court imposed five-year sentences for each of the two
Conspiracy First Degree charges,173 Class E felonies.174
Additionally, the Superior Court in this case chose to exercise its Title 11, Section
4204(k) authority.175 Section 4204(k) permits the sentencing court to require that a
specified Level V sentence “be served without benefit of any form of early release, good
time, furlough, work release, supervised custody or any other form of reduction or
diminution of sentence.”176 In plain language, the Superior Court may “require a sentence
be served day for day.”177 A Section 4204(k) sentence is treated as a departure from the
presumptive guidelines.178 Thus, the Superior Court has “traditionally been reluctant to
use section § 4204(k) when imposing any sentence, and reserves that sanction for
appropriate cases, such as ones in which the need for the protection of the public is
predominate.”179 In this case, the Superior Court applied its Section 4204(k) authority to
172
App. to Op. Br. at A254–55 (Sentencing Hearing).
173
Id. at A255.
174
See 11 Del. C. § 513 (Conspiracy in the First Degree is a Class E felony).
175
App. to Op. Br. at A255–56 (Sentencing Hearing).
176
11 Del. C. § 4204(k)(1).
177
State v. Delaware Bd. of Parole, 2014 WL 595870, at *2 n.12 (Del. Super. Jan. 24, 2014).
178
See App. to Op. Br. at A268 (SENTAC Benchbook 2019) (“imposition of a sentence pursuant
to 11 Del. C., sec 4204(k) is, in effect, a departure from the presumptive sentencing guidelines.”).
179
State v. Lopez-Moncada, 2015 WL 3508100, at *3 (Del. Super. June 3, 2015) (italics in
original).
45
Bribing a Witness and Attempt to Defeat Tax, mandating two years served at Level V
incarceration for each,180 and to the twenty-year Racketeering sentence.181
The Superior Court must exercise its independent judgment in sentencing
defendants.182 The Superior Court’s extensive explanation in this case demonstrates that it
fulfilled that responsibility. The Superior Court stated its reasons for departing from the
SENTAC guidelines, and in doing so, it also stated its reasons for imposing a sentence
pursuant to 11 Del. C. § 4204(k).183
Nor did the Superior Court fail to identify aggravating factors and limit itself to only
incorporating the State’s memorandum. The trial judge’s extensive recitation noted that
the State’s memorandum was ‘accurate’ without being ‘complete’ and identified a number
of other aggravating factors supported by the record. The factors enumerated in the
SENTAC Benchbook are non-exhaustive,184 and although the State’s sentencing
memorandum focused exclusively on them, the trial judge’s analysis included other
relevant factors.
180
App. to Op. Br. at A255–56 (Sentencing Hearing).
181
Id. at 254.
182
See White v. State, 198 A.3d 176, 2018 WL 6167326, at *3 (Del. Nov. 21, 2018) (TABLE) (“In
sentencing [the defendant] above the State's recommended 25-year sentence, the Superior Court
stated that it did not lightly set aside the sentencing recommendation that had resulted from the
parties' plea negotiations. Nonetheless, after reviewing all of the information. . . the Superior Court
had to exercise its independent sentencing judgment.”) (Emphasis added).
183
App. to Op. Br. at A252–53; A255–56.
184
See SENTAC Benchbook 2020 at 110 (“The following aggravating and mitigating
circumstances for exceptional sentences are provided as examples and are not intended to be
exclusive reasons for departure.”); SENTAC Benchbook 2019 at 132 (same).
46
The trial judge repeatedly emphasized the importance of White’s leadership role in
the enterprise in his decision to impose an above-guideline sentence. Considering White’s
leadership role in the enterprise was within the sentencing judge’s discretion.185 Moreover,
as the Superior Court noted, White reacted to Eric Lloyd’s arrest by taking on a greater
criminal role, demonstrating that he did not learn from Lloyd’s experience. The trial court
also appropriately noted “the huge amount of drugs that were involved in the transactions,”
and that “we can only guess at the number of victims of the poison that was spread, the
cocaine, the heroin.”186 And the trial judge emphasized that the large-scale narcotics
transactions involved enormous sums of money being used in illegal ways—evading taxes,
bribing witnesses, and financing an entire criminal enterprise.
In this respect, the trial court’s observations on the record complemented and
enhanced the arguments made by the State in its memorandum regarding Delaware’s
narcotics laws. As the State pointed out,187 in 2011 the General Assembly enacted what it
described as a “comprehensive revision” of Delaware’s drug laws, the “Ned Carpenter
Act.”188 As we have previously noted, the Ned Carpenter Act relaxed the criminal penalties
185
See, e.g., Lake v. State, 1984 WL 997111 (Del. Supr. 1984) (stating that a “trial court has wide
discretion in making a sentencing determination,” and that “[i]ncluded within that discretion is the
latitude to consider all information pertaining to a defendant’s person history and behavior which
is not confined exclusively to conduct for which that defendant was convicted.”).
186
App. to Op. Br. at A252 (Sentencing Hearing, Oct. 18, 2019). In its Sentencing Memorandum,
the State stated that White delivered at least 100 logs of fentanyl-laced heroin to William Wisher
on a single occasion. See App. to Op. Br. at A175 (State’s Recommended Sentencing
Memorandum); id. at A180 (stating that, “[t]he evidence showed White delivered ‘super weight’
heroin with fentanyl -- sheer poison.”).
187
Id. at A180.
188
78 Del. Laws ch. 13, §§ 10, 43 (2011).
47
in the Delaware code in some respects.189 But the General Assembly was clear in the
preamble to the Act that drug dealing is “a significant threat to society;. . . is significantly
associated with violent crime;. . . a substantial percentage of homicides in Delaware are
related to drug dealing; and . . . drug dealers who deal in substantial quantities of drugs are
a greater threat to society than those who deal in lesser quantities of drugs.” White’s course
of conduct -- leading a ring of narcotics traffickers who move enormous volumes of
narcotics, and leading a group of people who frequently engage in violence against one
another, their adversaries, and innocent persons -- is precisely the type of behavior the
General Assembly sought to sanction.
Nor do we find merit in White’s argument that to the extent the Superior Court
adopted the State’s aggravating circumstances, there was an insufficient factual predicate
justifying reliance on them. White’s prior Possession with Intent to Deliver a Narcotic
conviction is a violent felony as defined by the Delaware Code.190 The trial court did not
rely on that factor to depart upward on any of the lesser offenses. Offenses for which White
was previously arrested but not convicted may be taken into account at sentencing so long
as they have “a minimal indicium of reliability and [are] not demonstrably false, and that
the defendant has the opportunity to explain or rebut the information.”191
189
See Ayala v. State, 204 A.3d 829, 838-39 nn.46–47 (Del. 2019) (observing that several types
of conduct, formerly classified as felonies, were now aggravating factors for other drug
misdemeanor and felony offenses).
190
See 11 Del. C. § 4201(c) (“The following felonies shall be designated as violent felonies: . . .
Title 16, Section 4752 Former Manufacture/Delivery/Possession with Intent to Deliver a
Controlled or Counterfeit Controlled Substance.”).
191
Ferry v. State, 173 A.3d 1048, 2017 WL 5041470, at *2 (Del. Nov. 1, 2017) (TABLE) (citing
Mayes v. State, 604 A.2d 839, 843 (Del. 1992) (stating that, “in reviewing a sentence within
48
Likewise, the trial court is permitted to consider White’s lack of remorse for some
of his crimes even when, like here, it found that he showed remorse for others. White
argues that the SENTAC Benchbook speaks of “total lack of remorse” as an aggravating
factor.192 Although that is accurate, the remorse at issue is with respect to “the offense,”
not to the offender.193 The record reflects that the trial court appropriately considered
White’s mixed record of remorse when it crafted its sentence.
White’s attack on the Vulnerability of Victim factor, relating solely to the Bribing
a Witness offense, fails as well.194 White argues that vulnerability applies only if the victim
exhibits “extreme youth, advanced age, disability, or ill health,” and that Jashown Banner’s
parents and grandmother are none of those things. But the SENTAC factor is not so
limited. Rather, it applies when the “Defendant knew, or should have known, that the
victim of the offense was particularly vulnerable or incapable of resistance due to extreme
youth, advanced age, disability, or ill health.”195 Physical frailty and age are not the only
means by which a victim may be vulnerable. With a young child or grandchild recently
grievously wounded under such traumatic circumstances, the Court had more than an
statutory limits, this Court will not find error of law or abuse of discretion unless it is clear from
the record below that a sentence has been imposed on the basis of demonstrably false information
lacking a minimal indicium of reliability.”); Super. Ct. Crim. R. 32(1)(B)–(C).).
192
Op. Br. at 43; see also SENTAC Benchbook 2020 at 112; SENTAC Benchbook 2019 at 134.
193
SENTAC Benchbook 2020 at 112; SENTAC Benchbook 2019 at 134.
194
See App. to Op. Br. at A178–79 (State’s Recommended Sentencing Memorandum).
195
SENTAC Benchbook 2020 at 112 (emphasis added); see also SENTAC Benchbook 2019 at
134.
49
adequate basis to find White’s attempt at bribery as exploitative of their distressed
emotional state.
The trial court was likewise within its discretion to find White’s acts satisfied the
‘excessive cruelty’ factor, which the State argued solely as to Conspiracy First Degree and
Aggravated Act of Intimidation. White claims that the only “callousness and cruelty to the
victim” suggested in this case is that which was “inherent in the element of the offense.”196
But that is not the case. Conspiracy First Degree requires agreement to commit a Class A
felony; even among class A felonies, murder is set apart for more severe sanction.197 The
Court adopted the State’s argument that White’s efforts to procure Stanford’s murder while
Stanford was incarcerated were particularly outrageous in a manner exceeding the elements
of the offense.198 Likewise, White obtained sealed paperwork and caused its distribution
over the internet accompanied by a witness’s wedding pictures, and contacted that
witness’s wife, a means of witness intimidation shocking to the trial court’s conscience
over and above the simple elements of the offense.199 The trial court was well within its
discretion to find White’s behavior depraved and callous in a manner justifying an upward
departure.
196
Op. Br. at 44.
197
See 11 Del. C. § 4205(b)(1) (a class A felony is punishable by “not less than 15 years up to life
imprisonment to be served at Level V except for conviction of first degree murder in which event
§ 4209 of this title shall apply.”).
198
App. to Op. Br. at A179.
199
Id.
50
Lastly, the State asked that sentences for Aggravated Acts of Intimidation and
Conspiracy First Degree run concurrently as a component of a seventy-year aggregate
sentence of imprisonment.200 The Court imposed consecutive terms of imprisonment for
those offenses as components of a substantially shorter term than the State’s
recommendation. White’s assertion that the Court’s deviation from the State’s request
requires a separate justification, unsupported by case law or any other authority, fails to
identify any basis for this Court to find an abuse of the trial court’s discretion.201
In every respect, the trial court carefully explained on the record its upward
departures from SENTAC guidelines. Its sentencing decision relies exclusively on factual
predicates supported by the record, and draws conclusions and judgments well within its
discretion. Accordingly, we reject White’s claims of error.
III. CONCLUSION
Based upon the foregoing, the judgment of the Superior Court is AFFIRMED.
200
Concurrent sentencing is governed by 11 Del. C. § 3901(d). That statute instructs the court
when imposing sentences to identify whether the sentence so imposed will be concurrent with any
other sentence imposed on the same offender, but does not specify any preference or entitlement
to concurrent sentencing. Id. Section 3091(d)(1) excludes certain offenses from concurrent
sentencing, none of which is implicated here.
201
The General Assembly requires the trial court to justify a departure from the SENTAC
presumptive sentence. 11 Del. C. § 4204(n). It has imposed no such requirement on departures
from the State’s sentencing recommendation.
51