United States v. Harris

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS September 18, 2012
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v. No. 10-3173
TRACY HARRIS,
Defendant – Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 6:07-CR-10143-JTM-2)
Kurt P. Kerns of Ariagno, Kerns, Mank & White LLC, Wichita, Kansas, for Defendant-
Appellant.
James A. Brown, Assistant United States Attorney (Barry R. Grissom, United States
Attorney, with him on the brief), Topeka, Kansas, for Plaintiff-Appellee.
Before LUCERO, SEYMOUR, and EBEL, Circuit Judges.
EBEL, Circuit Judge.
Defendant-Appellant Tracy Harris (“Harris”) was convicted under 18 U.S.C.
§ 1962(d) of conspiracy to commit a racketeering offense in violation of the Racketeer
Influenced and Corrupt Organizations Act (“RICO”), and sentenced to 188 months in
prison. On appeal, he challenges the substantive correctness of the jury instructions on
the elements of § 1962(d) conspiracy; the sufficiency of the evidence to convict him of
that crime; the failure of the district court to issue a jury instruction on the affirmative
defense of withdrawal; and the substantive and procedural reasonableness of his
sentence.1
Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1), we
hold (1) that the existence of an enterprise is not a required element of § 1962(d)
conspiracy; (2) alternatively, even if the Government was required to prove the existence
of an enterprise, there was sufficient evidence to show that the various gang sets in this
case constituted an association-in-fact enterprise under Boyle v. United States, 556 U.S.
938 (2009); and (3) that Harris failed to present evidence that he had withdrawn from the
alleged conspiracy sufficient to warrant a jury instruction on that defense. Further, under
the concurrent-sentence doctrine, we decline to review Harris’s challenge to his sentence.
We therefore AFFIRM Harris’s conviction and sentence.
1
Harris was also convicted of one count being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g) and one count of wire fraud in violation of 18 U.S.C.
§ 1343. He was sentenced on those counts to 120 and 188 months’ imprisonment,
respectively, to run concurrently with his 188-month sentence for the RICO conspiracy
charge. The firearm and wire fraud convictions and sentences are not at issue in this
appeal.
2
I. BACKGROUND
The Crips are one of several street gangs active in Wichita, Kansas. There are
“sets” and “subsets” of the Crips in Wichita, including the Insane Crips, the Deuce Trey
Crips, the Neighborhood Crips, and the Tre Five Seven Crips. While these sets each have
their own leaders, and often operate independently of each other, they share certain
common features, such as wearing the color blue, showing the Crip sign, using the Crip
handshake, and harboring animosity towards members of other gangs. Crips socialize
exclusively with other Crips, and members of different sets would meet regularly and
would work together to make money. This case arises out of the investigation, by the
Wichita police, of the Crips gang and its criminal activity in Wichita, and the subsequent
prosecution of several Crips in connection with that activity.
Harris was indicted, along with several co-defendants, in a thirty-eight-count
indictment charging violations of RICO, as well as violations of federal weapons, drug,
and wire fraud statutes.
Generally speaking, Harris was alleged to have been a major drug supplier
involved in drug trafficking, who owned houses where drug trafficking took place.
Harris personally was charged with one count of participating in an enterprise through a
pattern of racketeering activity under 18 U.S.C. § 1962(c) (Count 1) (the “substantive
RICO violation”), one count of conspiracy to commit a substantive RICO violation under
18 U.S.C. § 1962(d) (Count 2) (“RICO conspiracy”), one count of conspiracy to
3
distribute cocaine base (Count 3), one count of conspiracy to distribute marijuana (Count
4), one count of possession of a firearm by a felon (Count 17), two counts of possession
of a firearm in furtherance of a drug trafficking crime (Counts 18 and 19), one count of
possession with intent to distribute cocaine (Count 20), two counts of wire fraud (Counts
21 and 22), and two counts relating to intimidation of a witness (Counts 23 and 24).
Harris and his co-defendants, Clinton Knight and Chester Randall, were tried
together in a two-week jury trial, after which the jury convicted Harris on Counts 2
(RICO conspiracy), 17 (felon-in-possession), and 21 (wire fraud). Harris was acquitted
on Counts 1, 3, 19, and 20.2 The Probation Officer prepared a Presentence Investigation
Report (“PSR”) that calculated Harris’s offense level to be 44 and his criminal history
category to be VI, resulting in an advisory guidelines range of life imprisonment.3 Harris
raised several objections to the PSR, upon which the district court ruled. The district
court adopted the PSR without change, but ultimately concluded, after consideration of
the sentencing factors of 18 U.S.C. § 3553(a), that a downward variance was appropriate.
In particular, the district court was concerned about the disparities that would be created
if Harris were sentenced to life. The district court reduced Harris’s offense level to 31,
resulting in an advisory guidelines range of 188-235 months’ imprisonment, and
2
Counts 4, 18, 22, 23, and 24 were eventually dismissed on the Government’s motion.
3
The 2009 edition of the Federal Sentencing Guidelines Manual, effective November 1,
2009, governed Harris’s June 2010 sentencing.
4
sentenced Harris at the bottom of that range: 188 months on Count 2, 120 months on
Count 17, and 188 months on Count 21, all sentences to run concurrently.
Additional facts are set forth below as they become relevant to the discussion.
II. DISCUSSION
A. Jury instructions on elements of RICO conspiracy
The first issue in this appeal is whether, to prove a conspiracy under 18 U.S.C.
§ 1962(d) to commit a substantive RICO violation under 18 U.S.C. § 1962(c), the
Government must prove the existence of “an enterprise.” The jury was instructed that it
did not need to find the existence of an enterprise. Because Harris did not object to this
jury instruction below, this Court reviews the district court’s instruction for plain error.
See United States v. Sturm, 673 F.3d 1274, 1281 (10th Cir. 2012). “Plain error occurs
when there is (1) error, (2) that is plain, which (3) affects substantial rights, and which (4)
seriously affects the fairness, integrity, or public reputation of judicial proceedings.”
United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir. 2005) (en banc) (internal
quotation marks omitted). “[A]n error is ‘plain’ if it is clear or obvious at the time of the
appeal . . . .” Id. And an error affects substantial rights when the error “affected the
outcome of the district court proceedings.” Id. (internal quotation marks omitted). The
burden is on Harris to show “a reasonable probability that, but for the error claimed, the
5
result of the proceeding would have been different.” United States v. Fields, 516 F.3d
923, 944 (10th Cir. 2008) (internal quotation marks omitted).4
The district court instructed the jury on the elements of Count 2 as follows:
First: A conspiracy or agreement, as detailed in the indictment, existed
between two or more persons to participate in the affairs of an enterprise
that affected interstate commerce through a pattern of racketeering activity;
Second: that defendant deliberately joined or became a member of the
conspiracy or agreement with knowledge of its purpose[;] and[]
4
The Government urges that Harris’s argument is entirely foreclosed by the “invited
error doctrine,” because Harris’s counsel said he had no objection to the jury instruction
when it was proposed at the jury instruction conference. Aple. Br. at 21-22. See United
States v. DeBerry, 430 F.3d 1294, 1302 (10th Cir. 2005) (invited error precludes a party
from arguing that the trial court erred in adopting a proposition that the party had urged
the district court to adopt). The Government bases this argument on the ground that
Harris said he had no objection to the challenged jury instruction when it was first
proposed. The Government cites authority to support this proposition, see United States
v. Griffin, 84 F.3d 912, 924 (7th Cir. 1996).
We do not consider Harris’s counsel’s statement at the jury instruction
conference—at which the district court went individually through the jury instructions,
confirming changes it was making, and asking each party whether it objected—to be
sufficient to trigger the invited error doctrine. A defendant’s failure to object to a district
court’s proposed jury instruction, or even the affirmative statement, “No, Your Honor,”
in response to the court’s query “Any objection?”, is not the same as a defendant who
proffers his or her own instruction, persuades the court to adopt it, and then later seeks to
attack the sufficiency of that instruction. See Sturm, 673 F.3d at 1281 (barring review
under invited error doctrine where defendant proffered the very instruction under attack);
United States v. Visinaiz, 428 F.3d 1300, 1310-11 (10th Cir. 2005) (same). Harris’s
objection was forfeited through neglect, not waived through knowing and voluntary
relinquishment. See United States v. Zubia-Torres, 550 F.3d 1202, 1205 (10th Cir. 2008)
(“[T]here must be some evidence that the waiver is knowing and voluntary, beyond
counsel’s rote statement that she is not objecting . . . .” (internal quotation marks
omitted)).
6
Third: the defendant agreed that someone, not necessarily the defendant,
would commit at least two of the racketeering acts detailed in the
indictment.
ROA v.1 at 409 (Jury Instruction No. 24). In addition, the court instructed:
Unlike the charge in Count 1 [the substantive violation under § 1962(c)],
the government need not prove a defendant actually committed two
racketeering acts, nor that the objectives or purposes of the conspiracy,
whatever they may have been, have been achieved or accomplished, nor
that the alleged enterprise was actually established, that the defendant was
actually employed by or associated with the enterprise, or that the
enterprise was actually engaged in, or its activities actually affected,
interstate or foreign commerce. The essential nature of Count 2 is the
conspiratorial agreement; the ultimate success or failure of the conspiracy is
irrelevant.
Id. (emphases added).
Harris complains on appeal that this jury instruction inaccurately stated the law.
Harris argues that the elements of a § 1962(d) conspiracy were laid out by this Court in
United States v. Smith, 413 F.3d 1253, 1266 (10th Cir. 2005), abrogated on other grounds
by United States v. Hutchinson, 573 F.3d. 1011 (10th Cir. 2009), and that Smith’s six-
part formulation should control. Harris contends that the district court’s instructions
misled the jury by combining discrete elements from Smith into one element, placing
elements out of order, and referring without specificity to the indictment, thus allowing
jurors improperly to consider irrelevant portions of the indictment.
We now hold that the existence of an enterprise is not an element of § 1962(d)
conspiracy to commit a substantive RICO violation. We hold further that the challenged
jury instruction accurately stated the law, and that the district court’s general reference to
7
the indictment was not error. Harris’s argument on this issue therefore fails the first
prong of the plain error test.
In Smith, this Court held that
in order to convict a defendant for violating § 1962(d), the Government
must prove beyond a reasonable doubt that the defendant: (1) by knowing
about and agreeing to facilitate the commission of two or more acts (2)
constituting a pattern (3) of racketeering activity (4) participates in (5) an
enterprise (6) the activities of which affect interstate or foreign commerce.
413 F.3d at 1266. Harris argues that, under Smith, “the existence of an enterprise” is an
element of conspiracy to commit a RICO violation under § 1962(d) and must be proved.
Aplt. Br. at 19. However, the defendant in Smith did not contend that existence of an
enterprise was not a necessary element of a § 1962(d) violation. See 413 F.3d at 1267.
Instead, the Smith defendant argued only that the evidence against him failed to establish
the existence of an enterprise. See id. at 1266-67. Consequently, in Smith this Court
focused on what constituted an “enterprise” under RICO, and did not address the
alternate possibility that the “existence of an enterprise” might not in fact be a necessary
element at all under § 1962(d). Thus, to the extent that Smith stated that the existence of
an enterprise was an essential element of § 1962(d), that statement was dicta, i.e., it was
“not necessarily involved nor essential to determination of the case in hand.” Rohrbaugh
v. Celotex Corp., 53 F.3d 1181, 1184 (10th Cir. 1995) (quoting Black’s Law Dictionary
454 (6th ed. 1990)); see United States v. Smith, 454 F. App’x 686, 694 (10th Cir. 2012)
8
(unpublished) (observing that Smith’s “holding” that the existence of an enterprise was
an element of § 1962(d) conspiracy was dicta).5
Now, confronted squarely with the question, and guided by the Supreme Court’s
decision in Salinas v. United States, 522 U.S. 52 (1997), and the Second Circuit’s
decision in United States v. Applins, 637 F.3d 59 (2d Cir. 2011), we conclude that
§ 1962(d) does not require the Government to establish that an enterprise existed.
In Salinas, as here, the defendant was charged both with committing a substantive
RICO violation under § 1962(c) and with conspiracy to commit that violation under
§ 1962(d). See 522 U.S. at 55. Also, as here, the defendant in Salinas was acquitted of
the substantive § 1962(c) charge but convicted of the conspiracy § 1962(d) charge. See
id. Salinas argued that his § 1962(d) conviction could not stand because the jury was not
instructed that it must find that Salinas had personally committed or agreed to commit the
two predicate acts required to establish a “pattern of racketeering activity” under
§ 1962(c). See id. at 61.
The Supreme Court rejected that argument, focusing on the textual differences
between § 1962(c) and § 1962(d), and on the general differences between conspiracy and
5
This Court’s recent order and judgment in United States v. Smith, 454 F. App’x 686,
addressed the precise issue before us. The panel in Smith, also reviewing for plain error,
declined to decide whether the existence of an enterprise is an essential element of
§ 1962(d). See id. at 695-97. But its analysis of the question was thorough and well-
reasoned. We adopt that analysis and now extend it one step further, to hold, in a
published opinion, that the existence of an enterprise is not an essential element of a
§ 1962(d) conspiracy.
9
completed crimes. As to the textual differences in the statute, Salinas observed that
whereas § 1962(c) makes it a crime to “conduct or participate . . . in the conduct of” a
RICO enterprise’s affairs through a pattern of racketeering activity, § 1962(d) simply
makes it criminal “to conspire” to do so. See id. at 62-63; see also Applins, 637 F.3d at
73-74 (discussing Salinas). Salinas emphasized that conspiracy is distinct from the
completed crime, and “a conspiracy may exist and be punished whether or not the
substantive crime ensues, for the conspiracy is a distinct evil, dangerous to the public,
and so punishable in itself.” 522 U.S. at 65. Further, § 1962(d) requires no overt act,
unlike the general criminal conspiracy statute, 18 U.S.C. § 371, which does. See id. at 63(“There is no requirement of some overt act or specific act in the statute before us, unlike
the general conspiracy provision applicable to federal crimes, which requires that at least
one of the conspirators have committed an ‘act to effect the object of the conspiracy.’
The RICO conspiracy provision, then, is even more comprehensive than the general
conspiracy offense in § 371.” (citation omitted)).
In light of these differences, the Salinas Court concluded that to prove a violation
of § 1962(d), “it suffices that [a defendant] adopt the goal of furthering or facilitating the
criminal endeavor,” so long as that endeavor would, “if completed, . . . satisfy all the
elements of a substantive criminal offense.” Id. at 65 (emphasis added). Rejecting the
defendant’s argument that § 1962(d) required proof that the defendant personally
committed or agreed to commit the predicate acts, the Supreme Court observed
10
It makes no difference that the substantive offense under § 1962(c) requires
[that someone actually commit] two or more predicate acts. The interplay
between subsections (c) and (d) does not permit us to excuse from the reach
of the conspiracy provision an actor who does not himself commit or agree
to commit the two or more predicate acts requisite to the underlying
offense.
Id. at 65.
Salinas did not present the precise question presented here. But its discussion of
the difference between a § 1962(c) violation and a § 1962(d) violation leads us, like the
Second Circuit, to conclude that just as the Government need not prove that a defendant
personally committed or agreed to commit the requisite predicate acts to be guilty of
§ 1962(d) conspiracy, neither must the Government prove that the alleged enterprise
actually existed. The district court’s challenged jury instruction accurately stated the
law.6 There was no error, and Harris’s challenge fails the first prong of the plain error
test.7
6
We also reject Harris’s perfunctory argument that Jury Instruction No. 24’s unspecific
reference to “the indictment” was error because Count Two did not list any specific
racketeering acts, and that the jury therefore should not have been permitted to consider
the racketeering acts listed under Count One.
We held in United States v. Randall that “a RICO conspiracy charge need not
specify the predicate racketeering acts that the defendant agreed would be committed.”
661 F.3d 1291, 1298 (10th Cir. 2011). We cited with approval jury instructions that
expressly noted
the indictment need not specify the predicate acts that the defendant agreed
would be committed by some member of the conspiracy in the conduct of
the affairs of the enterprise. You may consider the evidence presented of
racketeering acts committed or agreed to be committed by any co-
conspirator in furtherance of the enterprise’s affairs to determine whether
Continued . . .
11
B. Sufficiency of the evidence
The second issue is whether the evidence was sufficient to convict Harris of RICO
conspiracy under § 1962(d). We hold that it was.
Sufficiency of the evidence to support a jury’s verdict is a legal issue that we
review de novo. See United States v. Lewis, 240 F.3d 866, 870 (10th Cir. 2001). On
appeal, we ask “whether taking the evidence—both direct and circumstantial, together
with the reasonable inferences to be drawn therefrom—in the light most favorable to the
government, a reasonable jury could find the defendant guilty beyond a reasonable
doubt.” United States v. Jameson, 478 F.3d 1204, 1208 (10th Cir. 2007) (internal
quotation marks omitted).
______________________________________
Cont.
the defendant agreed that at least one member of the conspiracy would
commit two or more racketeering acts.
Id. at 1298 n.3 (emphasis added) (quoting Applins, 637 F.3d at 80). An almost identical
instruction was given in this case. Thus, under Randall, the jury could permissibly
consider not only the listed racketeering acts but any other racketeering act upon which it
heard competent evidence.
7
Even if there were error, such error would not have been plain, as the error was not
“contrary to well-settled law.” United States v. Poe, 556 F.3d 1113, 1129 (10th Cir.
2009) (internal quotation marks omitted). As discussed, this Court’s decision in Smith,
413 F.3d 1253, did not “directly address[] the . . . issue he raises,” Poe, 556 F.3d at 1129,
and Harris identifies no Supreme Court precedent that directly addresses it either. Nor
would the error have affected Harris’s substantial rights, in light of the fact that, as we
discuss next, the Government proved the existence of an association-in-fact enterprise,
and Harris shows no “reasonable probability that, but for the error claimed, the result of
the proceeding would have been different.” Fields, 516 F.3d at 944 (internal quotation
marks omitted)
12
The jury, as fact finder, has discretion to resolve all conflicting testimony, weigh
the evidence, and draw inferences from the basic facts to the ultimate facts.
However, we may not uphold a conviction obtained by piling inference upon
inference. The evidence supporting the conviction must be substantial and do
more than raise a suspicion of guilt.”
United States v. Anderson, 189 F.3d 1201, 1205 (10th Cir. 1999) (alterations, citation,
internal quotation marks omitted).
Harris contends that the indictment, which referred only to a single enterprise, “the
Crips,” was insufficient to convict him of § 1962(d) conspiracy because he alleges the
evidence adduced at trial did not show a single “enterprise” called “the Crips” but rather
showed three separate “enterprises,” namely, the Deuce Trey Crips, the Insane Crips, and
the Tre Five Seven Crips. Harris points to unrefuted expert testimony that there is no
unitary “Crips” organization; there are only “sets.” Harris argues that these sets were too
loosely affiliated to be considered an “enterprise” within the meaning of RICO, and since
“enterprise” is an element of conspiracy under Smith, 413 F.3d 1253, there can be no
conspiracy.
Harris’s argument fails. We have already rejected the argument that the
Government must prove the existence of an enterprise to sustain a conviction under
§ 1962(d). But even if such proof were required, under controlling Tenth Circuit and
Supreme Court case law, the evidence in this case was sufficient to show that these three
Crips “sets” together constituted an “association-in-fact enterprise.”
RICO provides that “[i]t shall be unlawful for any person employed by or
associated with any enterprise engaged in, or the activities of which affect, interstate or
13
foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such
enterprise’s affairs through a pattern of racketeering activity . . . .” 18 U.S.C. § 1962(c).
An “enterprise,” in turn, “includes any individual, partnership, corporation, association,
or other legal entity, and any union or group of individuals associated in fact although not
a legal entity.” Id. § 1961(4) (emphasis added).
In United States v. Turkette, the Supreme Court elaborated on the requirements of
an “enterprise” and cautioned that “enterprise” and “pattern of racketeering activity”
were distinct elements of a substantive RICO violation. See 452 U.S. 576, 583 (1981)
In order to secure a conviction under RICO, the Government must prove
both the existence of an “enterprise” and the connected “pattern of
racketeering activity.” The enterprise is an entity, . . . a group of persons
associated together for a common purpose of engaging in a course of
conduct. The pattern of racketeering activity is, on the other hand, a series
of criminal acts as defined by the statute.
Id. (emphases added). At the same time, though, the Court observed that “the proof used
to establish these separate elements may in particular cases coalesce.” See id.In Smith, this Court considered the question of how much structure an association-
in-fact “enterprise” must have to distinguish it from a “pattern of racketeering activity.”
See 413 F.3d at 1266-68. We held that the government must prove (1) the existence of
an ongoing organization with a decision-making framework or mechanism for controlling
the group; (2) that various associates function as a continuing unit; and (3) that the
enterprise exists separate and apart from the pattern of racketeering activity. See id. at
1266-67.
14
Four years later, in Boyle v. United States, the Supreme Court rejected Smith’s
narrow construction of what constitutes an association-in-fact enterprise. See 129 S. Ct.
2237, 2244-45 (2009). Boyle held that an association-in-fact enterprise could be
established solely by showing that there was “[a] purpose, relationships among those
associated with the enterprise, and longevity sufficient to permit these associates to
pursue the enterprise’s purpose.” Id. at 2244. The existence of such an enterprise, the
Supreme Court held, could in some cases be inferred from the very same evidence that
showed the pattern of racketeering activity. Id. at 2245. Further, Boyle held that “an
association-in-fact enterprise is simply a continuing unit that functions with a common
purpose.” Id.
Such a group need not have a hierarchical structure or a “chain of
command”; decisions may be made on an ad hoc basis and by any number
of methods—by majority vote, consensus, a show of strength, etc.
Members of the group need not have fixed roles; different members may
perform different roles at different times. The group need not have a name,
regular meetings, dues, established rules and regulations, disciplinary
procedures, or induction or initiation ceremonies. . . . Nor is the statute
limited to groups whose crimes are sophisticated, diverse, complex, or
unique; for example, a group that does nothing but engage in extortion
through old-fashioned, unsophisticated, and brutal means may fall squarely
within the statutes reach.
Id. at 2245-46.
After Boyle, this Court revisited the question of what is necessary to establish an
association-in-fact enterprise in United States v. Hutchinson, 573 F.3d 1011 (10th Cir.
2009). Hutchinson acknowledged Boyle’s abrogation of Smith and its stricter reading of
the technical requirements of RICO, see id. at 1021-22, and recognized that “Boyle’s test
15
now governs the disposition of this and future RICO cases in our circuit,” id. at 1022.
Under Boyle and Hutchinson, then, if the Government established that the various Crips
sets shared “[a] purpose, relationships among those associated with the enterprise, and
longevity sufficient to permit these associates to pursue the enterprise’s purpose,” Boyle,
129 S. Ct. at 2244, then the Government would have proved the existence of an
“enterprise” within the meaning of 18 U.S.C. § 1962(d).
We hold that the evidence in this case established that the different Crips sets in
Wichita meet the test for an association-in-fact enterprise. As to “purpose,” the evidence
at trial showed that Harris and Knight, members of different sets, jointly operated the
houses from which various set members sold drugs, and that they provided drugs for
those lower in the chain to sell. There was also testimony that the different Crips sets
would work together by “making money, having meetings, things of that nature,”
including committing robbery, selling drugs, and prostitution. ROA v.3 at 1818-19
(testimony of Trena Ridge). As to “relationships,” the record demonstrates that the
members of the different sets saw and interacted with one another regularly, through
mandatory Crip meetings, the sharing of colors and handshakes, and socializing at the
“Crip club,” Harry and Ollie’s. As to “longevity,” the record showed that the pattern of
activity that the government alleged continued over a period of years.
Because evidence sufficient to establish the existence of an enterprise (1) did not
have to be shown at all for a § 1962(d) conspiracy, and (2) in the alternative, was shown
under the Boyle and Hutchinson approach to establishing an “association-in-fact
16
enterprise,” we conclude that the evidence was sufficient to convict Harris of conspiracy
under 18 U.S.C. § 1962(d).
C. Withdrawal from conspiracy
The third issue is whether Harris was entitled to have the jury instructed on the
affirmative defense of withdrawal in connection with the charge of conspiracy to commit
a RICO violation. We conclude that he was not.
We review the district court’s refusal to issue a requested theory-of-defense
instruction for an abuse of discretion. See United States v. Turner, 553 F.3d 1337, 1347
(10th Cir. 2009). “‘[A] defendant is entitled to an instruction as to any recognized
defense for which there exists evidence sufficient for a reasonable jury to find in his
favor.’” United States v. Randall, 661 F.3d 1291, 1295-96 (10th Cir. 2011) (quoting
Mathews v. United States, 485 U.S. 58, 63 (1988)); see United States v. Visinaiz, 428
F.3d 1300, 1308 (10th Cir. 2005) (“Criminal defendants are entitled to jury instructions
upon their theory of defense provided there is evidentiary and legal support.”). “For the
purposes of determining the sufficiency of the evidence to raise the jury issue, the
testimony most favorable to the defendant should be accepted.” United States v. Al-
Rekabi, 454 F.3d 1113, 1121 (10th Cir. 2006) (internal quotation marks omitted). “[I]t is
essential that the testimony given or proffered meet a minimum standard as to each
element of the defense so that, if a jury finds it to be true, it would support an affirmative
defense . . . .” United States v. Bailey, 444 U.S. 394, 415 (1980).
17
Each member of a conspiracy, while the conspiracy exists, is liable for the
reasonably foreseeable crimes of his co-conspirators. See Pinkerton v. United States, 328
U.S. 640, 646-47 (1946); United States v. Russell, 963 F.2d 1320, 1322 (10th Cir. 1992).
A conspirator can be held liable for those acts of co-conspirators undertaken “until the
conspiracy accomplishes its goals or that conspirator withdraws.” United States v.
Brewer, 983 F.2d 181, 185 (10th Cir. 1993) (citing Hyde v. United States, 225 U.S. 347,
369 (1912)). But simply ceasing participation in the conspiracy does not constitute
“withdrawal.” United States v. Hughes, 191 F.3d 1317, 1321 (10th Cir. 1999). And it is
the defendant’s burden to establish withdrawal. See United States v. Powell, 982 F.2d
1422, 1435 (10th Cir. 1992).
“[T]o withdraw from a conspiracy[,] an individual must take affirmative action,
either by reporting to the authorities or communicating his intentions to his
coconspirators.” Id. In Randall, this Court recently held that Powell’s reporting-or-
communicating test for withdrawal from a conspiracy applies in the context of
withdrawing from a conspiracy involving a gang. See 661 F.3d at 1294. In Randall we
adopted, see id. at 1294-95, the reasoning of the Eleventh Circuit in United States v.
Starrett, which held that even where a gang member had added an “out date” to his gang
tattoo, sold his motorcycle, joined a church, got a job, moved away, and cut off virtually
all contact with other gang members, the jury was nevertheless entitled to find that he had
not sufficiently withdrawn from the gang-related conspiracy, using a “reporting or
18
communicating” test similar to Powell’s. See Starrett, 55 F.3d 1525, 1550-51 (11th Cir.
1995).
In Randall we held that the defendant’s statement to a Department of Corrections
official that he was no longer part of a gang was insufficient to meet the “reporting”
option for withdrawal. See 661 F.3d at 1295. We also held that “maturing out” of the
gang, alone, does not meet the “communicating” option. Id. Randall requires that a gang
member who seeks to establish that he withdrew from a gang-related conspiracy must
communicate his withdrawal directly to his coconspirators in a manner that
reasonably and effectively notifies the conspirators that he will no longer be
included in the conspiracy, in this case the gang,8 in any way.
Communicating such an intent to coconspirators, however, requires more
than implied dissociation. It must be sufficiently clear and delivered to
those with authority in the conspiracy such that a jury could conclude that it
was reasonably calculated to make the dissociation known to the
organization. Simply not spending time with coconspirators is not enough
to satisfy this standard.
8
We pause to clarify this language in Randall. Randall and Harris were co-defendants in
the trial below, charged in the same indictment. That indictment equated the Crips gang
with an “‘enterprise’ as defined by [18 U.S.C. § 1961(4)] . . . , that is, a group of
individuals associated in fact.” ROA v. 1 at 64 (Fifth Superseding Indictment at ¶ 6).
Despite the language in Randall, however, we do not mean to suggest that the RICO
conspiracy in this case was necessarily coterminous with the overall Crip organization or
any one Crip set. Rather, the conspiracy involved participation in the affairs of a criminal
enterprise (the Crips), and other language in Randall confirms that the conspiracy
involved certain gang activities, as opposed to membership in the gang. See 661 F.3d at
1295 (“The record does not even reveal that Randall told the [authorities] what gang he
was in or what, if any, illegal activity the gang was involved in . . . .” (emphasis added));
id. (“[T]here is no evidence that Randall conveyed to the Crips organization that he
would no longer be any part of the gang or of the gang’s activities.” (emphasis added)).
Clearly, as we discuss further, infra, one could be a member of the Crips gang but not
guilty of the § 1962(d) conspiracy in this case, and vice-versa.
19
Id. (emphasis added).
Harris bases his withdrawal defense on the following evidence: Harris had become
a Muslim and rejected the gang lifestyle as antithetical to his faith; Harris cooperated
with police after a 2007 search of his house and told a police detective that he used to be
a member of the Insane Crips, but that he had left the organization in the early 1990s;
Mary Dean, the girlfriend of a leader of the Insane Crips, testified that Harris was
“always clean and wasn’t doing everything everybody else was doing,” ROA v.3 at 702;
Harris was an infrequent visitor to the Crip bar, Harry and Ollie’s; Harris was not seen at
the park for the required Crip meetings; and he was “[a]t best . . . seen on a couple of
occasions at houses where drugs were later found.” Aplt. Br. at 26-28.
Like the defendant in Randall, Harris argues that withdrawal from a gang “is not
done so much by words as by actions.” Aplt. Br. at 28. But also like the defendants in
Randall and Starrett, Harris fails to establish that he either reported to law enforcement
about the conspiracy with particularity or adequately communicated his withdrawal to his
co-conspirators. First, Harris’s mentioning to a Wichita Police detective, after his house
was searched, that he used to be in the Insane Crips but got out in the 1990s does not
qualify as “giv[ing] authorities information with sufficient particularity to enable the
authorities to take some action to end the conspiracy.” Randall, 661 F.3d at 1294-95.
Although the detective was undoubtedly the type of “official who has some ability to act
on the information given in an attempt to end the conspiracy,” id. at 1295, there was no
particularity to Harris’s statement that might have enabled authorities to end the
20
conspiracy. Second, Harris presented no evidence that he communicated his withdrawal
to anyone in the Crips organization “unambiguous[ly] and effective[ly].” Id. at 1295.
Indeed, evidence adduced at trial suggested that even if Harris no longer
considered himself a member of the Insane Crips, and even if other Crips believed Harris
was no longer an Insane Crip, Harris nevertheless remained associated with other Crips
and, critically to this charge, remained a part of the conspiracy to sell drugs. The
substantive RICO provision Harris was charged with conspiring to violate criminalizes
certain acts by persons who are simply “employed by or associated with any enterprise.”
18 U.S.C. § 1962(c). By its plain terms, the statute does not require formal membership
in the enterprise. And, in this case, at least, membership in the gang is not legally
equivalent to participation in the conspiracy. See supra n.8. To the extent the indictment
equated the Crips gang with anything, it alleged only that the Crips constituted the
“enterprise.” But even an acknowledged and self-professed Crip would not be guilty of
participating in this alleged § 1962(d) conspiracy unless he deliberately joined that
conspiracy with knowledge of its purpose, and unless that purpose involved someone
committing at least two predicate racketeering acts. Likewise, a person could be guilty of
the § 1962(d) conspiracy in this case without being a Crip, so long as he or she
deliberately joined the conspiracy, knowing that its purpose was to conduct or participate
in the affairs of an enterprise, and agreeing that someone would commit the requisite
predicate racketeering acts. Cf. Salinas, 522 U.S. at 65.
21
Because Harris failed to present sufficient evidence for a reasonable jury to find
that he had withdrawn from the alleged conspiracy, even if he had withdrawn from the
gang, the district court did not abuse its discretion by refusing to instruct the jury on the
affirmative defense of withdrawal.
D. Sentence
On appeal Harris raises five challenges to the 188-month sentence he received for
his RICO conspiracy conviction under 18 U.S.C. § 1962(d). Four of his challenges go to
the calculation of his sentence and are procedural in nature, while one challenge is to the
substantive reasonableness of the sentence. See United States v. Haley, 529 F.3d 1308,
1311 (10th Cir. 2008) (“Reasonableness review is comprised of a procedural component
and a substantive component.”). In light of Harris’s wire fraud conviction and the 188-
month concurrent sentence he received for that conviction, neither of which he challenges
on appeal, we exercise our discretion under the concurrent-sentence doctrine and decline
to review his challenges to his RICO conspiracy sentence.
The concurrent-sentence doctrine, prior to the Supreme Court’s decision in Ray v.
United States, 481 U.S. 736 (1987) (per curiam), provided generally that where a
defendant has been sentenced concurrently on multiple counts and challenges his
underlying convictions, but a reviewing court has upheld at least one conviction as valid,
the court need not consider the validity of other convictions carrying equal or lesser
concurrent sentences. See Benton v. Maryland, 395 U.S. 784, 789 (1969). But concern
for the adverse collateral consequences that flow from a potentially invalid conviction
22
generally counseled that reviewing courts should consider each challenged conviction
notwithstanding the existence of concurrent sentences on other, unchallenged or affirmed
convictions. See id. at 790; United States v. Montoya, 676 F.2d 428, 432 (10th Cir.
1982).
In Ray, however, the Supreme Court held that where a defendant is convicted on
multiple counts, sentenced concurrently on those counts, and challenges his conviction or
convictions, the court must review each challenged conviction notwithstanding the
concurrent nature of the sentences, because the imposition of a special assessment per
count of conviction renders the sentences not truly “concurrent.” Ray, 481 U.S. at 737(“Since petitioner’s liability to pay this total depends on the validity of each of his three
convictions, the sentences are not concurrent.” (emphasis added)). Thus, Ray effectively
abolished the concurrent-sentence doctrine in cases where a defendant challenges one or
more of multiple federal convictions, because every such conviction carries its own
special assessment. See 18 U.S.C. § 3013.
Ray’s holding, however, does not eliminate the applicability of the doctrine in
cases where a defendant challenges only the length of his sentence, or where, as here, the
defendant challenges his conviction and his sentence, but the court has already upheld the
conviction. In such cases, the appellate court may still exercise its discretion under the
concurrent-sentence doctrine, see United States v. Brown, 996 F.2d 1049, 1053 (10th Cir.
1993) (“[T]he concurrent sentence doctrine is discretionary rather than jurisdictional . . .
.”), to decline to review the length of a concurrent sentence, because the defendant suffers
23
neither prejudice nor collateral consequence as a result of the sentence. See United States
v. Segien, 114 F.3d 1014, 1021 (10th Cir. 1997) (applying doctrine where defendant
challenged his 36-month sentence on one count, but still had a valid, concurrent, 105-
month sentence on another count) (“Here, even if we reversed the district court, the
conviction would stand, albeit perhaps with a reduced sentence, as would the special
assessment. Thus, our application of the doctrine causes Mr. Segien no prejudice.”),
abrogated on other grounds by United States v. Hathaway, 318 F.3d. 1001, 1006 (10th
Cir. 2003); United States v. Olunloyo, 10 F.3d 578, 581 (8th Cir. 1993) (“To the extent
that Olunloyo’s . . . argument may be read as a challenge to the 36-month concurrent
sentence imposed for the [unchallenged conviction], we find that a ruling in Olunloyo’s
favor would not reduce the time he is required to serve nor does the imposition of this
sentence prejudice him in any way. . . . We thus apply the concurrent-sentence doctrine
and decline to address any issue concerning the 36-month concurrent sentence.”).
Here, we conclude that there is no reason to opine on Harris’s challenges to his
RICO sentence. Even if we were to reverse the district court on these sentence-specific
issues, Harris would still stand convicted of RICO conspiracy and would still have to
serve his 188-month wire fraud sentence. Because Harris will, accordingly, suffer no
24
prejudice, we decline to address his challenge to his RICO sentence. See Segien, 114
F.3d at 1021; Olunloyo, 10 F.3d at 581.9
III. CONCLUSION
For the foregoing reasons, we AFFIRM Harris’s conviction and sentence.
9
Nevertheless, we have considered Harris’s procedural and substantive challenges to his
RICO sentence and we find no apparent error.
25