United States v. Antonio Simmons

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4875
UNITED STATES OF AMERICA,
Plaintiff – Appellant,
v.
ANTONIO SIMMONS, a/k/a Murdock, Doc,
Defendant – Appellee.
No. 18-4876
UNITED STATES OF AMERICA,
Plaintiff – Appellant,
v.
NATHANIEL TYREE MITCHELL, a/k/a Savage,
Defendant – Appellee.
No. 18-4877
UNITED STATES OF AMERICA,
Plaintiff – Appellant,
v.
MALEK LASSITER, a/k/a Leeko,
Defendant – Appellee.
No. 19-4269
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
NATHANIEL TYREE MITCHELL, a/k/a Savage,
Defendant – Appellant.
No. 19-4287
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MALEK LASSITER, a/k/a Leeko,
Defendant – Appellant.
No. 19-4345
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ANTONIO SIMMONS, a/k/a Murdock, a/k/a Doc,
2
Defendant – Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Mark S. Davis, District Judge. (2:16-cr-00130-MSD-LRL-1)
Argued: October 30, 2020 Decided: May 28, 2021
Amended: August 23, 2021
Before AGEE, WYNN, and RICHARDSON, Circuit Judges.
Affirmed in part, reversed in part, vacated in part, and remanded by published opinion.
Judge Agee wrote the opinion, in which Judge Wynn joined. Judge Richardson wrote an
opinion concurring in part and concurring in the judgment.
ARGUED: Teresa Ann Wallbaum, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellant/Cross-Appellee. Paul Graham Beers, GLENN,
FELDMANN, DARBY & GOODLATTE, Roanoke, Virginia; Laura Pellatiro Tayman,
LAURA P. TAYMAN, PLLC, Newport News, Virginia, for Appellees/Cross-Appellant.
ON BRIEF: Brian A. Benczkowski, Assistant Attorney General, Matthew S. Miner,
Deputy Assistant Attorney General, Criminal Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; G. Zachary Terwilliger, United States
Attorney, Daniel T. Young, Assistant United States Attorney, Alexandria, Virginia,
Andrew Bosse, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Norfolk, Virginia for Appellant/Cross-Appellee. Maureen Leigh White,
Richmond, Virginia, for Appellee/Cross-Appellant Nathaniel Mitchell.
3
AGEE, Circuit Judge:
Antonio Simmons, Nathaniel Mitchell, and Malek Lassiter (collectively,
“Defendants”) were charged in a thirty-eight count Second Superseding Indictment
(“SSI”). They were alleged to be members of a Hampton Roads, Virginia line of the Nine
Trey Gangsters (“Nine Trey”), an east coast set of the United Blood Nation.
The SSI alleged that Defendants, along with Anthony Foye and Alvaughn Davis, 1
conspired to violate the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18
U.S.C. § 1962(d); committed multiple violations of the Violent Crimes in Aid of
Racketeering (“VICAR”) statute, 18 U.S.C. § 1959; and committed multiple violations of
18 U.S.C. § 924(c), for using, brandishing, and/or possessing a firearm during the
commission of a crime of violence. After a seven-week jury trial that commenced on
February 6, 2018, a jury convicted Defendants of thirty-seven counts charged in the SSI. 2
One of those offenses, Count 30, alleged a violation of 18 U.S.C. § 924(c), with the
predicate “crime of violence” being what the Government characterizes as an “aggravated”
form of a RICO conspiracy, the charge alleged in Count One. After trial, Defendants moved
to set aside the verdict as to Count 30 and the district court granted that motion.
1
Foye and Davis were also co-defendants in the original Indictment, but they
pleaded guilty prior to Defendants’ trial. Davis cooperated with the Government and
testified in its case-in-chief against Defendants.
2
Prior to submitting the case to the jury, the district court granted Simmons’ motion
for judgment of acquittal as to Count 38, a witness tampering charge levied solely against
him. J.A. 5160–61.
4
Ultimately, Simmons received three consecutive life sentences, plus a fourth
consecutive sentence of forty years’ imprisonment; Mitchell received five consecutive life
sentences, plus a sixth consecutive sentence of fifty years’ imprisonment; and Lassiter
received thirty-five years’ imprisonment. The Government appeals the decision to set aside
the verdict as to Count 30. Defendants have cross-appealed, challenging two of the district
court’s evidentiary rulings at trial, three of its jury instructions, and the sufficiency of the
evidence underlying a host of their convictions.
As explained below, we agree with the district court that a RICO conspiracy, even
when denominated as “aggravated,” does not categorically qualify as a “crime of violence.”
As to Defendants’ cross-appeals, we find merit in two of their contentions. Specifically,
we first hold that the district court constructively amended Counts 8, 15, 18, 27, and 29 by
instructing the jury on the elements of a state law predicate offense not alleged in the SSI.
Second, we hold that the evidence was insufficient to support their convictions on one of
the VICAR attempted murder offenses, which also requires reversing their convictions for
the related § 924(c) offense. Accordingly, the district court’s judgment as to each
Defendant is affirmed in part, reversed in part, and vacated in part, and the case is remanded
for further proceedings consistent with this opinion.
I.
A.
Founded in 1993, Nine Trey was the “first of [the] original Eastside set[s]” of the
Bloods. J.A. 1856, 3998. Nine Trey required its members to act within their “line,” or chain
5
of command, establishing a hierarchy akin to the military. A new member could join Nine
Trey by either getting “beat into” the gang—i.e., getting jumped by members—or by
“putting in work”—e.g., selling drugs, committing acts of violence, or otherwise earning
money for the gang. J.A. 1629–30, 4003–04. Members generally moved up in rank based
on their reputation for violence, their loyalty to the gang, and their ability to recruit new
members and make money. Robberies and drug trafficking were two of the most common
sources of funds for Nine Trey.
Adhering to the line’s chain of command was “[v]ery important” to Nine Trey, and
transgressors could be disciplined for failing to do so. J.A. 1684–85. Punishments ranged
in severity based on the offense. Certain offenses––like snitching––called for the “death
penalty.” J.A. 1640–41. The “death penalty” for snitching applied even if the transgressor
was not a Nine Trey member.
Respect was another important Nine Trey tenet. If a Nine Trey member was ever
disrespected by another Nine Trey member, a rival gang member, or someone from the
general public, he was expected to “handle” it, as disrespect to one Nine Trey member was
viewed as disrespect to the entire gang. J.A. 1675, 1894–95. Any showing of disrespect
could have been a “death sentence.” J.A. 1896. If the member could not get to the person
that disrespected him, he would go after “the closest one to ‘em.,” i.e., their “[m]other,
wife, child, sister, aunt, brother.” J.A. 1635.
In November and December 2015, Simmons, Mitchell, Foye, and Davis were well-
established members of a Hampton Roads-based line of Nine Trey. Simmons held the rank
of “Low,” an upper-level management position in Nine Trey, “managing the daily or
6
monthly activities” of his subordinates. J.A. 1862–63, 2973, 6077. 3 In addition to his
managerial duties, Simmons engaged in narcotics trafficking. Foye was a “Three-Star
General” in Simmons’ line, who looked up to Simmons as a father figure. J.A. 2978, 6079–
80. Davis was also a “Three-Star General” who associated with Simmons’ line during those
two months, and Mitchell was a “One-Star General” in Simmons’ line. By December 2015,
based on their propensity for violence, Simmons had designated Foye, Mitchell, and Davis
as his “cleanup crew,” or his chosen squad of “shooters.” J.A. 4066–67. Lassiter, Foye’s
cousin, had not officially become a Nine Trey member by the beginning of December 2015,
but he was looking to join the gang.
B.
Between December 10 and December 27, 2015, Defendants (along with Foye and
Davis) committed a spree of robberies, murders, and attempted murders in the Hampton
Roads and Virginia Beach area that left six people dead and three more wounded. The
Government pointed to two catalysts that sparked this crime spree.
In the fall of 2015, Simmons received a disciplinary action from his Nine Trey
superior, “Dido.” Simmons and Dido had attempted to smuggle marijuana into a state jail.
The deal went awry, however, and Dido lost all of his investment for which he held
Simmons personally responsible. Dido disciplined Simmons for this debt by putting him
3
Simmons asserted at trial, and continues to assert on appeal, that he was stripped
of his rank in May 2015. Several witnesses contradicted Simmons’ claim, testifying that
he was a “Low” in December 2015. See J.A. 2973–74, 2976–77, 3587–88. We decline to
revisit this factual issue, for the resolution of the contradictory evidence is left to the jury.
United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997).
7
“on freeze.” For Nine Trey purposes, anyone put “on freeze” was to focus solely on
“rectify[ing] whatever reason you got put on freeze.” J.A. 4055. Thus, Simmons’ desire to
repay Dido and maintain good standing in Nine Trey motivated him to call on his “cleanup
crew”––Foye, Mitchell, and Davis––to help him get the cash to pay his debt.
At that same time, Mitchell was looking to increase his notoriety within the gang in
order to rise in its ranks. Mitchell knew that do so, he had to “put in work.” By December
2015, Foye had a well-known reputation for violence. In fact, Foye was known for “going
around . . . shooting people for nothing and . . . killing people.” J.A. 4155. Mitchell wanted
to prove that he was “just as much of a gangster as [Foye].” Id.
1.
By late November 2015, Foye had growing concerns that one of his childhood
friends and fellow Nine Trey members, Al-Tariq Tynes, had become a snitch. Foye began
texting multiple individuals discussing harming and robbing Tynes both because he was a
snitch and because Tynes was rumored to have money.
On December 10, 2015, at 7:28 p.m.––with Simmons still on “freeze”–– Foye was
hanging out alone with Tynes. Foye texted Davis, “Don’t call me, but I need you on deck,
bro.” J.A. 4080. Foye then texted Simmons four minutes later, saying, “20 minutes ima
kall u dad.” J.A. 5956. One minute later, at 7:34 p.m., Foye followed up with Simmons,
“Im with the meal so its guarenteed.” J.A. 5956. 4 In Nine Trey’s coded language, food
4
Our recitation of Defendants’ text messages will not alter grammatical, spelling,
or syntax errors unless necessary for clarity’s sake. Curse words have been redacted in this
opinion, but are unredacted in the original texts.
8
references like “the meal” or “being on the plate” signified that someone was a target for
violence. E.g., J.A. 1888–90. Simmons replied, “Faxtz,” which signaled confirmation. J.A.
1727, 5956.
Shortly thereafter, Foye called Davis for help. J.A. 4081. When Davis arrived, he
saw Foye in Tynes’ gold Lexus, with Tynes dead in the passenger seat. Foye told Davis
that he shot Tynes in the head. Just hours later, at 2:56 a.m., Simmons texted Foye, “Bro
I’ve been up all night i need the money by 11 this morning smh or we dead bro.” J.A. 5957.
In a subsequent post-arrest interview with law enforcement, Simmons admitted that the
money he referenced was to be used to repay Dido and get relief from the “freeze.”
2.
On December 14, 2015, Simmons, who was still in need of money to pay Dido,
instructed Davis, Foye, and Mitchell on a plan to rob a gambling spot in Norfolk, Virginia.
The four initially planned to go to the gambling house sometime after 7:00 p.m., but that
plan did not materialize. Eventually, at 8:58 p.m., Foye texted Simmons, “man we only
have two hours. if you dont hurry up ima get out and redrum somebody.” J.A. 5968.
“Redrum,” another Nine Trey code word, is “murder” spelled backwards. J.A. 4530.
Ultimately, the gambling house robbery never occurred. By 1:00 a.m., Foye and
Mitchell were passengers in Davis’ car, and Foye directed Davis to Portsmouth, Virginia.
At 1:57 a.m., Foye texted Simmons, “redrum if u kam pour me a shot of sum but ima . . .
talk to u [tomorrow].” J.A. 5969. Simmons replied, “Handle that before 7:00 5.” Id. “5” is
one of the monikers Nine Trey members called each other. J.A. 4563. Simmons then
immediately followed up, “[T]hat gambling spot still a go 5 f**k what Dognutz talking
9
about 5[.]” J.A. 5969. 5 Foye confirmed at 2:16 a.m., id., and then told Davis to stop the
car. Foye and Mitchell jumped out, and began firing at two people walking along the street,
R.F. and Vandalet Mercer. Mercer was shot dead, but R.F. was only shot in the hand. After
the shooting, Foye said to Mitchell, “man, bro, you shot that bit*h.” J.A. 4122. R.F. placed
a 911 call at 2:20 a.m. At that same time, 2:20 a.m., Foye placed a forty-seven second
phone call to Simmons.
3.
Three more murders occurred on December 20 and 21, 2015. Just after midnight on
December 20, 2015, Foye and Mitchell shot to death Linda Lassiter (“Linda”) and Wayne
Davis (“Wayne”) 6 in Portsmouth, because Foye heard that someone related to Linda was
telling police that he was involved in shooting up her house on Thanksgiving that year.
And on December 21, Mitchell shot and killed Jamesha Roberts in Norfolk, Virginia,
simply because she was walking on the same side of the street as him. Mitchell boasted to
his fellow Nine Trey members about the shooting, saying that “the bi**h shouldn’t have
been walking on my side of the street.” J.A. 4155. In fact, Brehon was present when
Mitchell told Foye after he shot Roberts, “[F]**k that bi**h, man, but you still one up on
me, bro,” which Brehon took to mean that Mitchell and Foye were competing with each
other for the most shootings. J.A. 3013, 3045–46.
5
“Dognutz” was Donte Brehon, another Nine Trey member who told Simmons that
that gambling spot was off limits because one of Brehon’s “uncles” ran it.
6
Neither victim bore any relation to Defendants.
10
4.
By December 27, 2015, word of Simmons’ “freeze” had reached a rival Nine Trey
“Low” named “Skino,” who led a Nine Trey line based in Virginia Beach. At that time,
Simmons and Skino were in an intra-gang dispute because Simmons allowed one of
Skino’s men to “jump” from Skino’s line to Simmons’ line. Line-jumping often caused
such rivalries within Nine Trey because it was seen as a sign of disrespect to their former
superior. Thus, while Simmons’ “freeze” was supposed to stay secret, Skino decided to
make it public knowledge to get back at Simmons. In response, Simmons decided to take
over Skino’s line by whatever means necessary.
On December 27, 2015, Mitchell, Foye, Lassiter, and Davis went to a meeting at
Simmons’ house. Lassiter was wearing a red bandana, which is a common apparel item for
Nine Trey members. Because Lassiter was not yet a Nine Trey member, Davis questioned
Foye about it. Foye then handed Lassiter a .38 caliber handgun and told Davis that Lassiter
was “about to make his way home.” J.A. 4151. Someone “making their way home” was
gang code for their becoming a member of Nine Trey by “putting in work.” J.A. 4004.
Simmons also questioned why Lassiter was there and wearing red. Foye again said that
Lassiter was “about to make his way home.” J.A. 4152–53.
During the meeting, the men discussed Simmons’ dispute with Skino, and Simmons
remarked, “yo, can’t none of [Skino’s] scraps bang out here no more.” J.A. 4153. Simmons
instructed that Blacko and Lanez, two of Skino’s Generals, “got a vest on,” because to his
knowledge, they were going to “jump lines” and fall under Simmons. J.A. 4153–54.
Simmons then directed, “[A]nybody else they a green light on them. If they ain’t trying to
11
flip, if they ain’t trying to flip, mash the gas on them.” J.A. 4153. Under Nine Trey’s coded
language, being “vested” means you are “bulletproof.” J.A. 4154. “Mash[ing] the gas,” on
the other hand, means to kill, J.A. 1660, or “go hard at” someone, J.A. 2969.
The four men left together in one car, first heading to the apartment where Nino,
another of Skino’s Generals, lived. Mitchell, Foye, and Lassiter got out of the car with
loaded guns, and knocked on Nino’s door. Davis estimated that the men waited by the door
for less than ten minutes. After getting no answer, they left. Shortly thereafter, Nino called
Mitchell and remarked, “[B]ro, I just saw you all leave my house, like what you all got
going on?” J.A. 4158. Mitchell responded that they were “just coming to check you out.”
J.A. 4158–59. Nino replied that he had heard from Blacko that “[Simmons] be pushing the
button on us” for “fall back from you all.” J.A. 4159. Blacko had also told Nino that Skino
wanted his men to “get [their] guns up” in preparation. Id. Mitchell then tried to “soothe”
Nino, saying, “you know, Blacko supposed to be falling up under [Simmons], we were
trying to see if you all were trying to make the same move.” Id. Once Mitchell ended the
call, Foye said, “[M]an, f**k that vest, f**k Blacko and that vest.” J.A. 4160.
The men then drove to a Virginia Beach neighborhood where Mitchell believed that
Lanez lived. Davis believed that if they found Lanez, “they was gonna kill him. More than
likely.” J.A. 4162. When they got to Lanez’ house, it “looked[] like it was empty.” J.A.
4162. Mitchell “didn’t want to go up and knock on the door, so [the men] pulled around”
back, where he then saw people who he recognized as knowing Lanez. Id. He got out of
the car and asked them if they had seen Lanez, but they had not. They then drove back to
Portsmouth.
12
5.
Proceeding down the list of Skino’s Generals, Foye next called Blacko on their drive
back to Portsmouth. Foye pretended to have an interest in purchasing guns from Blacko,
in an effort to figure out where he lived. Blacko told Foye that he was living in Norfolk.
Nonetheless, Foye directed Davis through Portsmouth to a house that Foye believed to be
Blacko’s residence. When they arrived at the house, they could see someone was there.
Foye said, “yo, I know that ni**a was lying.” J.A. 4165. Davis pulled up past the house,
and “parked like further down the street almost around the curve.” Id. Mitchell, Lassiter,
and Foye got out of the car, and walked towards the house. Mitchell and Foye approached
the door, while Lassiter stood watch just down the street.
That house actually belonged to S.M., a woman who had dated Blacko in high
school and had remained friends with him. At around 8:45 p.m., Mitchell and Foye
knocked on her door and S.M., who was home alone at the time, could see a third man
about twenty to twenty-five feet down the street, facing away from her house. Just minutes
later, Mitchell shot her six times at point-blank range in the doorway. As Mitchell and Foye
began to run back to the car, Foye and Lassiter fired four to five shots at neighbors who
were gathered outside their homes and had witnessed the shooting.
After hearing of the shooting, Simmons called Davis “screaming at the top of his
lungs,” telling Davis that Blacko and Skino were looking for Davis. J.A. 4171–72. Davis
testified that, in his view, Simmons was “[n]ot necessarily” upset that S.M. had been shot,
but more so at “how everything came back on him.” J.A. 4173–74.
13
II.
Based on Defendants’ December 2015 conduct, the SSI alleged three primary
categories of offenses. First, Count One alleged that Defendants conspired to violate the
RICO statute, 18 U.S.C. § 1962(d). Following Count One was a separate “Notice of Special
Sentencing Factors,” which alleged that Simmons murdered Tynes and Mercer, and that
Mitchell murdered Mercer, Roberts, Wayne, and Linda, in violation of section 18.2-32 of
the Virginia Code.
Second, the SSI alleged a host of VICAR offenses stemming from Defendants’
murders and attempted murders. For each attempted murder, the SSI alleged that Simmons,
Mitchell, and/or Lassiter committed both “Attempted Murder in Aid of Racketeering
Activity” and “Assault with a Dangerous Weapon in Aid of Racketeering Activity.” These
assault with a dangerous weapon counts, Counts 8, 15, 18, 27, and 29 (“the VICAR Assault
Counts”) were based on two state predicate offenses: violations of Va. Code Ann. §§ 18.2-
53.1 and 18.2-282.
Finally, for each murder and attempted murder victim, the SSI alleged a related
charge under 18 U.S.C. § 924(c) for using, brandishing, and/or possessing a firearm during
a crime of violence. For each § 924(c) count, the predicate “crimes of violence” were: (1)
the “aggravated” RICO conspiracy alleged in Count One, and (2) the VICAR count(s)
associated with that victim. Of particular relevance here is Count 30, which alleged that
Defendants knowingly possessed, brandished, and discharged a firearm during two crimes
of violence: the “aggravated” RICO conspiracy alleged in Count One and the VICAR
Assault offense set forth in Count 29, which alleged that Defendants assaulted S.M.’s
14
unidentified neighbors. Defendants never moved to dismiss any count for failure to state
an offense under Federal Rule of Criminal Procedure 12(b).
The jury convicted Defendants of all thirty-seven counts submitted to them, and
found each of the RICO conspiracy “Special Sentencing Factors” alleged as to Simmons
and Mitchell. After trial, Defendants moved to set aside the verdict pursuant to Federal
Rules of Criminal Procedure 29(c) and 33. They argued for the first time that under
Sessions v. Dimaya, 138 S. Ct. 1204 (2018), decided during Defendants’ trial, each 18
U.S.C. § 924(c) count (including Count 30) was invalid, because none of the predicate
offenses was categorically a crime of violence. After briefing on these motions, the trial
court sua sponte asked the parties to brief a separate issue regarding the legal sufficiency
of one of the state law predicates alleged in support of the VICAR Assault Counts: “[D]oes
a violation of [Va. Code Ann.] § 18.2-282 reach conduct that does not correspond in
substantial part to the generic crime of ‘assault with a deadly weapon’?” Order at 2, United
States v. Simmons, No. 2:16-cr-130 (E.D. Va. filed Oct. 19, 2018), ECF 496.
On November 16, 2018, the district court granted Defendants’ motion to set aside
the verdict as to Count 30, and denied the balance of their claims. First, as to the issue the
court raised sua sponte, it found that Defendants waived any claim of error as to whether
§ 18.2-282 supported the VICAR Assault Counts, because that argument should have been
raised in a Rule 12(b)(3) motion to dismiss. United States v. Simmons, No. 2:16-cr-130,
2018 WL 6012368, at *3–4 (E.D. Va. Nov. 16, 2018). Second, the court concluded that
Defendants’ convictions on Count 30 should be vacated because neither the “aggravated”
15
RICO conspiracy in Count One nor the VICAR Assault offense in Count 29 was a “crime
of violence.” Id. at *4–10.
The Government timely appealed the district court’s ruling to set aside the verdict
as to Count 30. Defendants timely cross-appealed their convictions. We have jurisdiction
under 18 U.S.C. § 3731 and 28 U.S.C. § 1291.
III.
We begin with the Government’s appeal of the district court’s ruling to set aside the
verdict as to the 18 U.S.C. § 924(c) offense alleged in Count 30. As noted, the district court
held that both the “aggravated” RICO conspiracy in Count One and the VICAR Assault
offense in Count 29 were not crimes of violence. The Government expressly limits its
appeal on Count 30 “to the argument that a RICO conspiracy with aggravating factors
qualifies as a crime of violence when those aggravating factors are themselves crimes of
violence.” Opening Br. 32 n.12. We review this question de novo. United States v. Mathis,
932 F.3d 242, 263 (4th Cir. 2019).
A.
Pursuant to 18 U.S.C. § 924(c)(1)(A), it is a crime to use, carry, or possess a firearm
“during and in relation to any crime of violence.” Section 924(c)(3) sets forth two
definitions of “crime of violence.” The only one that remains valid, § 924(c)(3)(A) (“the
force clause”), defines a “crime of violence” as any crime that “has as an element the use,
attempted use, or threatened use of physical force against the person or property of
16
another.” 7 To determine whether an offense is such a “crime of violence,” we continue to
be confined to apply the “categorical approach” or, in a “narrow range of cases,” the
“modified categorical approach.” Mathis, 932 F.3d at 264 (quoting Descamps v. United
States, 570 U.S. 254, 261–62 (2013)).
The categorical approach applies to “indivisible” statutes, those that set out a single
set of elements defining the crime. United States v. Bryant, 949 F.3d 168, 172 (4th Cir.
2020). It asks whether the elements of the offense “necessarily require the use, attempted
use, or threatened use of force.” Id. (citations omitted).
The “modified categorical approach” applies to “divisible” statutes, those that list
“potential offense elements in the alternative,” and thus include “multiple, alternative
versions of the crime.” Id. at 173 (quoting Descamps, 570 U.S. at 257). Because of the
statute’s divisibility, it is not possible to determine by reference to the statute alone if the
defendant was convicted of a crime of violence. United States v. Cabrera-Umanzor, 728
F.3d 347, 350 (4th Cir. 2013); see also Descamps, 570 U.S. at 260. Accordingly, the
modified categorical approach allows us to look to certain documents like the indictment
and jury instructions (“Shepard documents”) 8 solely to determine “which of the statute’s
alternative elements formed the basis” of the defendant’s conviction. Bryant, 949 F.3d at
7
Section 924(c)(3)(B), the “residual clause,” has been invalidated as
unconstitutionally vague. United States v. Davis, 139 S. Ct. 2319, 2326–32 (2019).
8
544 U.S. 13 (2005).
17
173 (citation omitted). From there, we apply the categorical approach analysis to that
offense to determine whether it is a crime of violence. Id.In Mathis v. United States, the Supreme Court clarified that to determine whether
an “alternatively phrased statute” is indivisible (thus permitting only use of the categorical
approach) or divisible (requiring use of the modified categorical approach), we must
determine whether the alternative statutory factors are “means” or “elements.” 136 S. Ct.
2243, 2256 (2016); see Ham v. Breckon, 994 F.3d 682, 688–89 (4th Cir. 2021). Statutory
factors are “means,” and do not create a divisible statute, if they are merely “‘alternative
methods’ of committing one offense.” Mathis, 136 S. Ct. at 2256. (citation and alteration
omitted). Statutory factors are elements, and thereby create a divisible statute, if their
presence increases the statutory maximum punishment. Id.
B.
1.
To determine whether Mitchell’s and Simmons’ RICO conspiracy convictions were
crimes of violence, we must first consult the text of the RICO statute to determine whether
a RICO conspiracy is a divisible or indivisible crime of conviction. In its entirety, § 1962(d)
reads: “It shall be unlawful for any person to conspire to violate any of the provisions of
subsection (a), (b), or (c) of this section.” 9 We have said that there are only three essential
9
Generally, § 1962(a) to (c) make it unlawful to engage in a pattern of racketeering
activity through an enterprise that is engaged in, or affects, interstate or foreign commerce;
and to use proceeds from such activity to acquire control of, or establish, some other entity
that affects interstate or foreign commerce.
18
elements in any § 1962(d) prosecution: (1) “that an enterprise affecting interstate
commerce existed”; (2) “that each defendant knowingly and intentionally agreed with
another person to conduct or participate in the affairs of the enterprise” and (3) “that each
defendant knowingly and willfully agreed that he or some other member of the conspiracy
would commit at least two racketeering [activities].” United States v. Mouzone, 687 F.3d
207, 218 (4th Cir. 2012) (citations and internal quotation marks omitted). “[R]acketeering
activity” includes “any act or threat involving murder” or a host of other state law offenses
“which is chargeable under State law and punishable by imprisonment for more than one
year,” as well as myriad enumerated federal criminal offenses. 18 U.S.C. § 1961(1).
The foregoing elements follow from the Supreme Court’s directive in Salinas v.
United States that a defendant can complete the requisite § 1962(d) conspiracy without
ever “commit[ting] or agree[ing] to commit the two or more” racketeering acts that are
otherwise necessary to complete a substantive violation of the RICO statute. 522 U.S. 52,
65–66 (1997). The Court explained:
A conspirator must intend to further an endeavor which, if completed, would
satisfy all of the elements of a substantive criminal offense, but it suffices
that he adopt the goal of furthering or facilitating the criminal endeavor. He
may do so in any number of ways short of agreeing to undertake all of the
acts necessary for the crime's completion.
Id. at 65. In fact, the Court explicitly recognized that a § 1962(d) conspiracy exists even if
no co-conspirator completes any of the agreed-upon racketeering acts. Id. at 63.
In the ordinary case, a defendant who “violates any provision of section 1962” may
receive a sentence of up to twenty years’ imprisonment. 18 U.S.C. § 1963(a). However, if
a violation of the RICO statute is “based on a racketeering activity for which the maximum
19
penalty includes life imprisonment,” then the maximum penalty for the RICO offense
increases to life imprisonment. Id. For example, a violation of 21 U.S.C. § 841 for
manufacturing, distributing, or dispensing controlled substances, if certain drug quantity
thresholds are met, is a racketeering act that carries a penalty of up to life imprisonment.
See 18 U.S.C. § 1961(1)(D); 21 U.S.C. § 841(a)(1), (b)(1)(A).
The Government argues that because § 1963(a) provides a factor that increases the
statutory maximum punishment for a RICO conspiracy, the RICO conspiracy statute is
divisible into two kinds of conspiracies: ones in which the § 1963(a) sentencing
enhancement does not apply, and ones in which it does––the latter of which the
Government refers to as “aggravated” RICO conspiracies. So, the Government insists, we
must apply the modified categorical approach.
Mitchell and Simmons counter that the RICO conspiracy statute is indivisible
because there is only one substantive RICO conspiracy offense. They assert that there is
“no authority for [the Government’s] argument that the special sentencing factors
enumerated after Count One convert the charged RICO conspiracy into [a] new crime
which is an aggravated form of the offense.” Cross-Opening Br. 89. According to Mitchell
and Simmons, the Special Sentencing Factors are merely “factors affecting the sentence
rather than elements of the offense.” Id.
There is some force to both arguments. For the Government’s part, there is case law
that seems to indicate that the inclusion of any statutory factor increasing the maximum
punishment in effect creates “aggravated” forms of that crime. In Jones v. United States,
for example, the Supreme Court held that 18 U.S.C. § 2119(2) and (3), which set forth
20
increasing statutory maximum punishments for carjacking based on whether “serious
bodily injury” or “death” result, both are “aggravated” forms of carjacking. 526 U.S. 227,
233–36 (1999). Just one year later, in Apprendi v. New Jersey, the Court went further,
explaining that at the time of our country’s founding the Framers did not distinguish
between “an ‘element’ of a felony offense and a ‘sentencing factor.’” 530 U.S. 466, 478
(2000). Instead, in the Framers’ eyes, “facts that expose[d] a defendant to a punishment
greater than that otherwise legally prescribed were by definition ‘elements’ of a separate
legal offense.” Id. at 483 n.10. Since Apprendi, both the Supreme Court and this Court have
said, in certain circumstances, that when Congress enumerates facts that increase the
statutory maximum penalty, it has effectively created “aggravated” forms of that crime.
See, e.g., Ring v. Arizona, 536 U.S. 584, 605 (2002) (“[W]hen the term ‘sentence
enhancement’ is used to describe an increase beyond the maximum authorized statutory
sentence, it is the functional equivalent of an element of a greater offense than the one
covered by the jury's guilty verdict.” (quoting Apprendi, 530 U.S. at 494 n.19)); United
States v. Promise, 255 F.3d 150, 156 (4th Cir. 2001) (en banc) (“Apprendi dictates in order
to authorize the imposition of a sentence exceeding the maximum allowable without a jury
finding of a specific threshold drug quantity [under 21 U.S.C. § 841], the specific threshold
quantity must be treated as an element of an aggravated drug trafficking offense[.]”).
Indeed, Mathis cited Apprendi for the notion that statutory factors carry differing
punishments “must be elements.” Mathis, 136 S. Ct. at 2256 (citing Apprendi, 530 U.S. at
490).
21
Under the Government’s logic, then, the completion of some racketeering activity
carrying a maximum penalty of life imprisonment under state law, see 18 U.S.C. § 1963(a),
would be an “element” rendering § 1962(d) divisible. Thus, for purposes of the “crime of
violence” analysis, there would be two types of RICO conspiracies––what we will term
here “generic” and “aggravated RICO conspiracies.”
Mitchell’s and Simmons’ position also carries merit. All of the decisions cited
above, except Mathis, were decisions based on constitutional principles. Apprendi and its
progeny “rest[] entirely on the Sixth Amendment’s jury-trial guarantee, a provision that
has nothing to do with the range of conduct a State may criminalize.” Schriro v. Summerlin,
542 U.S. 348, 353 (2004); see also, e.g., United States v. Cornette, 932 F.3d 204, 210 (4th
Cir. 2019) (explaining that Alleyne v. United States, 570 U.S. 99 (2013), which held that
all facts that increase mandatory minimums are “elements,” “created a new prospective
procedural right within the context of sentencing” (emphases added)); United States v.
Sanders, 247 F.3d 139, 147 (4th Cir. 2001) (noting that Apprendi only “dictates what fact-
finding procedure must be employed to ensure a fair trial”). So there is a clear argument to
be made that Apprendi eliminated the distinction between an “element” and a “sentencing
enhancement,” but only insofar as the question was “‘who decides,’ judge or jury” under
the Fifth Amendment’s Due Process Clause and the Sixth Amendment’s right to a jury
trial. Ring, 536 U.S. at 604–05. Indeed, one can reasonably read Mathis as preserving the
distinction between an “element” and a “sentencing enhancement” for purposes of deciding
which elements comprise the underlying crime of conviction.
22
If this latter view prevailed, then the RICO conspiracy statute would be deemed
indivisible, because § 1963(a) only functions as a sentencing enhancement. The crime of
conviction, § 1962(d), is completed as soon as two or more defendants agree to commit
two or more racketeering acts in furtherance of a RICO enterprise. See Mouzone, 687 F.3d
at 218. While in this case Apprendi required the jury to find that Simmons and Mitchell
committed the alleged murders for each to have received a life sentence on Count One, that
was irrelevant to the jury’s determination of guilt or innocence on the charged conspiracy.
A peek at the Shepard documents confirms this point, as the SSI, jury instructions, and
verdict forms do not define the substantive murder offenses as substantive elements of the
RICO conspiracy conviction. See J.A. 172–73 (SSI); J.A. 5248–49 (Jury Instructions); J.A.
6313–14, 6321–22 (Verdict Forms); cf. Mathis, 136 S. Ct. at 2256–57 (noting that courts
may “peek at the record documents . . . for the sole and limited purpose of determining
whether the listed items are elements of the offense” (citation, alterations, and internal
quotation marks omitted)). We would thus apply the categorical approach to just the three
elements that appear in § 1962(d).
Ultimately, we need not definitively decide this thorny divisibility issue. Whether
the RICO conspiracy statute is divisible or indivisible, we conclude that Mitchell’s and
Simmons’ RICO conspiracy convictions are not categorically a crime of violence.
2.
We proceed first under Mitchell’s and Simmons’ construct. This approach would
treat the RICO conspiracy statute as indivisible and thus solely require implementation of
23
the categorical approach to determine whether § 1962(d)’s three elements necessarily entail
the use, attempted use, or threatened use of physical force. See Bryant, 949 F.3d at 172.
Every circuit to consider whether a RICO conspiracy is a “crime of violence” has
held, under the categorical approach, that it is not. See United States v. Green, 981 F.3d
945, 951–52 (11th Cir. 2020); United States v. Jones, 935 F.3d 266, 271 (5th Cir. 2019)
(per curiam); United States v. Davis, 785 F. App’x 358, 360–61 & n.2 (9th Cir. 2019) (per
curiam). We could reach the same result here despite the presence of the § 1963(a)
sentencing enhancement. As noted, the § 1962(d) offense is complete once the agreement
is reached, see Salinas, 522 U.S. at 63, 65, because “the object of a RICO conspiracy is ‘to
engage in racketeering,’ not to commit each predicate racketeering act.” United States v.
Gutierrez, 963 F.3d 320, 343 (4th Cir. 2020) (citation omitted), cert. denied, 141 S. Ct.
1112 (2021); accord Green, 981 F.3d at 952 (“[T]he elements of a RICO conspiracy focus
on the agreement to commit a crime[.]”). Just as with a conspiracy to commit Hobbs Act
robbery, reaching the agreement to violate the RICO statute through some future pattern of
racketeering activity “does not invariably require the actual, attempted, or threatened use
of physical force.” United States v. Simms, 914 F.3d 229, 233–34 (4th Cir. 2019) (en banc);
accord Green, 981 F.3d at 951–52.
In sum, assuming that a statutory factor that enhances a sentence is not necessarily
an “element” of the underlying crime of conviction, we could hold that Simmons’ and
Mitchell’s RICO conspiracy convictions are not categorically crimes of violence, despite
their subsequent commission of first-degree murder in furtherance of the conspiracy.
24
3.
Conversely, assuming that the Government is correct that the RICO conspiracy
statute is divisible between (1) “generic” conspiracies in which racketeering acts not
punishable by life imprisonment, or no racketeering acts at all, were actually committed,
and (2) “aggravated” conspiracies in which a racketeering act punishable by life
imprisonment was committed, we would need to employ the modified categorical approach
before proceeding further.
Importantly, the modified categorical approach does not permit a conduct-specific
analysis in determining whether a particular crime is a crime of violence under 18 U.S.C.
§ 924(c). See Mathis, 136 S. Ct. at 2251 (noting the Court’s “mantra” that in categorical
analyses, courts “may only look to the elements of the [offense], not to the facts of [the]
defendant’s conduct” (alterations in original) (internal quotation marks omitted));
Descamps, 570 U.S. at 261 (“The key . . . is elements, not facts.”). Rather, it “is simply ‘a
tool for implementing the categorical approach.’” Bryant, 949 F.3d at 173 (quoting
Descamps, 570 U.S. at 262). We employ the modified categorical approach “for the sole
purpose of determining ‘which of the statute’s alternative elements formed the basis of the
defendant’s prior conviction.’” Id. (quoting Descamps, 570 U.S. at 262); accord Mathis,
136 S. Ct. at 2253 (“[T]he modified [categorical] approach serves—and serves solely—as
a tool to identify the elements of the crime of conviction when a statute's disjunctive
phrasing renders one (or more) of them opaque.”). So, “once a court has isolated the
specific crime of conviction, it must apply the traditional categorical approach . . . to
determine whether that crime constitutes a ‘crime of violence’ under § 924(c)’s force
25
clause.” Bryant, 949 F.3d at 173 (citing Mathis, 136 S. Ct. at 2249, 2256; and then citing
Mathis, 932 F.3d at 265 & n.23)).
Following that strict guidance, we consult the Shepard documents solely to
determine for which of the two types of RICO conspiracies Simmons and Mitchell were
convicted. In doing so, the special verdict forms show that they were convicted of an
“aggravated” RICO conspiracy, in the Government’s parlance. The jury specifically found
(1) that Simmons and Mitchell were guilty of a RICO conspiracy, and (2) that both were
guilty of committing several murders under Virginia law “as part of the racketeering
conspiracy.” J.A. 6313–14 (Simmons’ Verdict Form); J.A. 6321–22 (Mitchell’s Verdict
Form). And first-degree murder is punishable by life imprisonment in Virginia. See Va.
Code Ann. §§ 18.2–10, –32.
According to the Government, we must now apply the categorical approach to that
fact specific aggravated RICO conspiracy––a RICO conspiracy in which the racketeering
acts of Virginia first-degree murder were committed––to determine the crime of violence
factor. Since first-degree murder under Virginia law is itself a crime of violence, the
Government argues that Simmons’ and Mitchell’s RICO conspiracy convictions must also
be a “crime of violence.” However, as explained below, that is not a faithful application of
the modified categorical approach. Applying that approach as Descamps and Mathis
demand, even an aggravated RICO conspiracy is not categorically a “crime of violence.”
Once we utilize the modified categorical approach to determine the crime of
conviction at issue, we “must apply the traditional categorical approach” to that crime’s
26
elements. Bryant, 949 F.3d at 173 (citations omitted). There are four required elements in
an aggravated RICO conspiracy prosecution:
(1) “that an enterprise affecting interstate commerce existed”;
(2) “that each defendant knowingly and intentionally agreed with another
person to conduct or participate in the affairs of the enterprise”;
(3) “that each defendant knowingly and willfully agreed that he or some
other member of the conspiracy would commit at least two
racketeering acts”; and
(4) the defendant committed a “racketeering activity,” as that term is
defined in 18 U.S.C. § 1961, that carries a maximum statutory penalty
of life imprisonment.
Mouzone, 687 F.3d at 218 (citations and internal quotation marks omitted) (describing the
first three elements); 18 U.S.C. § 1963(a) (providing the fourth element). As explained
above, the first three elements do not require any use, attempted use, or threatened use of
physical force. Our task is to then determine whether the “minimum conduct necessary” to
satisfy the final element––the commission of a racketeering act carrying a maximum
statutory penalty of life imprisonment–– necessarily entails the use, attempted use, or
threatened use of force. Bryant, 949 F.3d at 172 (citation and internal quotation marks
omitted).
The RICO statute is somewhat unique in that the Government would satisfy its
burden on the final element of an aggravated RICO conspiracy by proving not the presence
of just one fact, but instead that the elements of another criminal offense are satisfied.
Indeed, § 1961(1) lists a number of crimes which can serve as the means for satisfying that
element of an aggravated RICO conspiracy as they authorize the imposition of a life
27
sentence. See Mathis, 136 S. Ct. at 2256. So to prevail here, the Government must show
that the minimum conduct necessary to complete any racketeering act qualifying for an
aggravated RICO conspiracy includes the use, attempted use, or threatened use of physical
force. The Government cannot meet that burden as a matter of law as three nonexhaustive
examples demonstrate.
First, Mitchell and Simmons could have engaged in racketeering activity involving
the distribution of controlled substances. Distributing more than one kilogram of heroin
and more than 50 grams of methamphetamine are two such acts, see 18 U.S.C.
§ 1961(1)(D), both of which can be punished by life imprisonment, 21 U.S.C. § 841(a)(1),
(b)(1)(A)(i), (viii). These completed distribution acts would justify the imposition of a life
sentence for the aggravated RICO conspiracy under 18 U.S.C. § 1963(a); however, drug
distribution does not require the use, attempted use, or threatened use of physical force. 10
Second, an aggravated RICO conspiracy may lie where the defendants committed
acts of sex trafficking by force, fraud, or coercion. See 18 U.S.C. §§ 1591(a), 1961(1)(B),
1963(a). But because sex trafficking “may be committed nonviolently––i.e., through
10
Typically if a firearm is involved in a drug distribution offense, the Government
will prosecute that offense under 18 U.S.C. § 924(c)(1)(A)’s tandem provision prohibiting
the use or carry of a firearm “in relation to any . . . drug trafficking crime,” which has a
different statutory definition than the term at issue here, “crime of violence,” compare
§ 924(c)(2) (defining “drug trafficking crime”), with id. § 924(c)(3) (defining “crime of
violence”). While § 924(c)(1)(A) convictions readily lie for drug distribution offenses
because they are “drug trafficking crime[s],” that does not inform us if a drug distribution
offense is also a “crime of violence.”
28
fraudulent means,” United States v. Fuertes, 805 F.3d 485, 499 (4th Cir. 2015), such an
aggravated RICO conspiracy would not be a categorically violent one.
Third, an “act or threat involving murder” that is “chargeable under State law”
necessarily includes not only first-degree murder, but also conspiracy to commit first-
degree murder. United States v. Fernandez, 388 F.3d 1199, 1259 (9th Cir. 2004) (“It is a
well-established principle of RICO law that . . . predicate racketeering acts that are
themselves conspiracies may form the basis for a . . . § 1962(d) [conviction].”). In some
states, like Maryland, 11 conspiracy to commit first-degree murder is punishable by life
imprisonment, which again would justify an aggravated RICO conspiracy conviction. See
Md. Code Ann., Crim. Law §§ 1-202, 2-201; Gary v. State, 671 A.2d 495, 520–21 (Md.
1996) (holding that Maryland’s conspiracy statute authorized a life imprisonment sentence
for conspiring to commit first-degree murder). But because “conspiracy alone does not
necessarily implicate the use of force,” United States v. Runyon, 994 F.3d 192, 203 (4th
Cir. 2021) (citing Simms, 914 F.3d at 234), such an aggravated RICO conspiracy would
not be a crime of violence, either.
In sum, given the number of readily apparent, statutorily provided means by which
a defendant may complete the final element of an aggravated RICO conspiracy without
using, attempting to use, or threatening to use physical force, we hold that an aggravated
RICO conspiracy is not categorically a crime of violence.
11
We use Maryland as a representative example instead of Virginia because
Virginia law only provides a ten-year statutory maximum penalty for conspiracies to
commit murder. See Va. Code Ann. §§ 18.2–10(e), –22(a)(2), –32.
29
The Government’s argument to the contrary suffers from two fatal flaws. First, it
arbitrarily assumes that our categorical analysis must look only to the particular
racketeering acts that Simmons and Mitchell committed in this particular case. That
approach improperly injects an extra level of divisibility into the crime of violence analysis
that neither the categorical nor modified categorical approach permits. Section 1961(1)
creates an entire category of offenses that can give rise to an aggravated RICO conspiracy
conviction, but critically, a defendant can be sentenced for life whether his aggravated
RICO conspiracy was based on Virginia first-degree murder or the distribution of over one
kilogram of heroin. Thus, § 1961(1) lists the means––the “alternative methods”––of
committing an aggravated RICO conspiracy, not additional elements for committing that
offense. Mathis, 136 S. Ct. at 2256 (alteration and quotation marks omitted); see also
Cabrera-Umanzor, 728 F.3d at 351, 353 (holding that a Maryland child abuse statute’s
definition of “sexual molestation or sexual exploitation” to include the crimes of incest,
rape, and sodomy (among others) did not render the statute divisible because the
enumerated crimes were simply the “means by which the elements of sexual molestation
or sexual exploitation can be committed”). Mathis thus requires that our categorical
analysis consider the entire class of qualifying racketeering acts, not just the specific ones
that Simmons and Mitchell committed in this case.
Second, and relatedly, the cases that the Government relies upon, principally
Burrage v. United States, 571 U.S. 204 (2014), Runyon, 994 F.3d 192, and United States
v. Tsarnaev, 968 F.3d 24 (1st Cir. 2020), cert. granted on other grounds, No. 20-443, 141
S. Ct. 1683 (U.S. Mar. 22, 2021), are inapposite. The element that made the offenses in
30
those cases crimes of violence required proof of just a single fact: a death resulting from
the conspiracy. See Burrage, 571 U.S. at 209–10 (quoting and discussing 21 U.S.C.
§ 841(b)(1)(A)–(C)); Runyon, 994 F.3d at 201–02 (quoting and discussing 18 U.S.C.
§ 1958(a)); Tsarnaev, 968 F.3d at 103–04 (quoting and discussing 18 U.S.C. §§ 2332a(a)).
In other words, unlike the broader category of aggravated RICO conspiracies here, the
category in those cases was limited only to offenses where death resulted. As we noted in
Runyon, “an act that results in death obviously requires ‘physical force.’” 994 F.3d at 203
(citation omitted). But aggravated RICO conspiracies are different, for defendants can
satisfy the final element of that crime by committing some other crime, as specified in
§ 1961(1). Some cases, like this one, may result in death; in others, as explained in detail
above, no utilization of physical force need occur. That factor plainly distinguishes the
statutes at issue in Burrage, Runyon, and Tsarnaev from the aggravated RICO conspiracy
here.
In essence, what the Government attempts to do is inject into the “crime of violence”
inquiry a conduct-specific analysis. It seeks to have courts look only at the precise
racketeering acts completed to determine whether the defendant’s particular aggravated
RICO conspiracy is a crime of violence instead of just one of many available means in that
category of offenses. While Simmons’ and Mitchell’s conspiracy conviction may have
been a crime of violence in a colloquial sense under the facts of this specific case, the
Supreme Court bars utilizing such a fact-specific approach. Indeed, the Government’s
“case-specific reading” here would make the force clause “apply to conduct [it has] not
previously been understood to reach: categorically nonviolent felonies committed in
31
violent ways.” Davis, 139 S. Ct. at 2332 (citing Simms, 914 F.3d at 256–57 (Wynn, J.,
concurring)); see also United States v. Barrett, 937 F.3d 126, 129–30 (2d Cir. 2019)
(explaining that Davis explicitly rejected any reliance on the “particular murderous
violence of [the defendant’s] robbery conspiracy” under both § 924(c)(3)(A) and (B)). Just
as the Supreme Court has done time and again, we reject such a reading.
In sum, we hold that both generic and aggravated RICO conspiracies are not
“crime[s] of violence” under 18 U.S.C. § 924(c)(3)(A). Accordingly, we affirm the district
court’s decision to vacate Simmons’ and Mitchell’s convictions as to Count 30.
IV.
We turn now to Defendants’ cross-appeals, which assert three categories of error.
Initially, they take issue with two of the district court’s evidentiary rulings, which allowed
the jury to consider as substantive evidence: (1) charts containing combined summaries of
cell site location information (“CSLI”) data, text messages, and Virginia Department of
Transportation (“VDOT”) license plate reader data; and (2) the alleged hearsay statements
of Nino and Skino during a phone call.
Next, Defendants claim three separate errors in the trial court’s jury instructions.
First, they argue that the trial court reversibly erred in declining to give the jury a “multiple
conspiracies” instruction. Second, they assert that the trial court’s formulation of the co-
conspirator liability instruction, which essentially mirrored United States v. Pinkerton, 328
U.S. 640 (1946), was plain error. Third, they posit that the trial court constructively
amended the VICAR Assault Counts through its jury instructions on those counts.
32
Finally, Defendants challenge the sufficiency of the evidence underlying various
findings of guilt.
We consider each argument in turn.
A.
We review a district court’s decision to admit or exclude evidence for an abuse of
discretion. United States v. Smith, 451 F.3d 209, 217 (4th Cir. 2006). A trial court abuses
its discretion if it applies the wrong law, if its decision “rests upon a clearly erroneous
factual finding,” or if we are otherwise left with a “definite and firm conviction that the
court below committed a clear error of judgment in the conclusion it reached upon a
weighing of the relevant factors.” Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261
(4th Cir. 1999) (citations and internal quotation marks omitted). But even if the trial court
made such an evidentiary error, it is subject to harmless error review. Fed. R. Civ. P. 61;
United States v. Johnson, 587 F.3d 625, 637 (4th Cir. 2009).
1.
At trial, the district court admitted, over Defendants’ objections, certain summary
charts created by the Government’s CSLI expert witness. See J.A. 6030–68. These charts
compiled summaries of CSLI data obtained from Defendants’, Foye’s, and Davis’ phones
and placed them on a map to provide a visual representation of their movements on a given
night. Some charts also contained excerpts from Defendants’ phones’ text message logs,
and/or license plate pictures captured by VDOT cameras at toll plazas in the Virginia Beach
and Norfolk areas. See, e.g., J.A. 6051.
33
The Federal Rules of Evidence provide two ways for a party to use summary charts
at trial. Rule 1006 permits summary charts to be admitted into evidence “as a surrogate for
underlying voluminous records that would otherwise be admissible into evidence.” United
States v. Janati, 374 F.3d 263, 272 (4th Cir. 2004). And Rule 611 permits the admission of
summary charts “to facilitate the presentation and comprehension of evidence already in
the record.” Id. at 273; see also United States v. Johnson, 54 F.3d 1150, 1159 (4th Cir.
1995). 12
The only potentially meritorious argument that Defendants raise is that the trial
court impermissibly instructed the jurors that they could consider all the summary charts
as independent evidence, and “give them such weight or importance, if any, as you feel
they deserve.” J.A. 5226. In the ordinary case, Defendants might have a colorable argument
that this instruction conflicts with our precedent stating that district courts should give a
limiting instruction for charts admitted under Rule 611 in order to ensure that the jury does
12
In Johnson, we expressly disagreed with other circuits that appeared to suggest
that summary charts introduced under Rule 611(a) may not be formally admitted into
evidence. 54 F.3d at 1159. But later we suggested in dicta that Rule 611(a) summary charts
may not be admitted as substantive evidence and are permitted solely to facilitate the jury’s
understanding of the evidence. See Janati, 374 F.3d at 273 (“Whenever pedagogical charts
are employed [under Rule 611(a)], however, the court should make clear to the jury that
the charts are not evidence themselves, but are displayed to assist the jury’s understanding
of the evidence.”). That dictum was endorsed by a 2019 panel in United States v. Oloyede,
933 F.3d 302, 310–11 (4th Cir. 2019).
But even if we were to consider Oloyede’s endorsement of Janati essential to its
holding, “one panel cannot overrule a decision issued by another panel.” McMellon v.
United States, 387 F.3d 329, 332 (4th Cir. 2004) (en banc). And if two decisions conflict,
the earlier controls. Id. at 333. For that reason, reliance on Janati is misplaced. Johnson
governs this question—summary charts may be admitted into evidence under Rule 611(a).
54 F.3d at 1159.
34
not “rely[] on that chart as ‘independent’ evidence,” but instead focuses its deliberations
on “the evidence upon which that chart is based.” Johnson, 54 F.3d at 1159; see also United
States v. Loayza, 107 F.3d 257, 264 (4th Cir. 1997). 13 But Defendants, along with the
Government, jointly proposed this instruction to the trial court. See Prop. Jury Instr. No.
17, Simmons, No. 2:16-cr-130 (E.D. Va. filed Mar. 15, 2018), ECF 388-1. We fail to see
how the trial court abused its discretion based on this allegedly prejudicial instruction when
Defendants asked for it and thus invited the error. See Mathis, 932 F.3d at 257–58 (refusing
to find error in a jury instruction that the defendant proposed, and the court gave, because
the defendant “invited the claimed error”); see also United States v. Mark, 943 F.2d 444,
449 (4th Cir. 1991) (holding that no error occurs if a trial court “fail[s] to give a limiting
instruction for a defendant where one was never requested,” even in situations where such
an instruction is warranted). Accordingly, we decline to vacate Defendants’ convictions on
this ground. 14
13
No limiting instruction is required for summary charts admitted under Rule 1006
because Rule 1006 summaries are independent evidence, see Janati, 374 F.3d at 273, while
Rule 611 charts are only a summary of otherwise admitted evidence, see Johnson, 54 F.3d
at 1159.
14
As a final note, Defendants take issue with the district court’s decision to allow
the Government to recall its CSLI expert witness. After the Government called its CSLI
expert, but well before closing its case-in-chief, it noticed that the CSLI summary charts
already admitted did not include CSLI data for Davis’ phone. The court allowed the
Government to recall the expert over Defendants’ objections. When the court learned of
the issue, it adjourned court at 12:21 p.m. that day, at Defendants’ counsels’ request, so
that they could analyze the updated charts and prepare for additional cross-examination of
the Government’s expert. And the expert was in fact subjected to additional cross-
examination on the updated charts. Thus, to the extent that Defendants claim prejudice
from the Government being allowed to recall this expert, we believe that the district court
(Continued)
35
2.
The district court also permitted the jury to hear, as substantive evidence, a phone
call between Skino and Nino. Defendants claim that this was prejudicial error, because the
contents of that call were inadmissible hearsay. We review for plain error because the
phone call was admitted without objection. J.A. 2161–62. 15 To demonstrate plain error,
Defendants must show that: (1) there was error; (2) the error was plain; and (3) the error
affected their substantial rights. Olano, 507 U.S. at 732–34. But because our plain error
review is discretionary, the Supreme Court has instructed that we “should not exercise” our
discretion to recognize a plain error unless Defendants make a fourth showing: that the
plain error affecting substantial rights also “seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings,” id. at 732, 736 (quoting United States v.
Atkinson, 297 U.S. 157, 160 (1936)). We find no error, let alone plain error, in the call’s
admission.
During the challenged December 23, 2015, phone call, Skino (the leader of a
Virginia Beach-based Nine Trey line and Simmons’ rival) and Nino (one of Skino’s
Generals) discussed Skino’s ongoing “beef” with Simmons. Mitchell was present with
adequately deployed the trial management mechanisms at its disposal to mitigate that
concern.
15
When the Government later tried to replay a part of the call, one of the defendants’
counsel objected on the grounds that the call had not been properly authenticated. J.A.
4592. It was only during this sidebar that the Government explained that the previously
admitted call was not hearsay. J.A. 4598.
36
Nino during the call, and Nino enabled the speaker phone setting on his cell phone so that
Mitchell could hear everything that Skino said.
This call was not “hearsay,” see Fed. R. Evid. 801(c), as the Government did not
offer it for the truth of the matters asserted therein. For example, the Government did not
wish to prove that Skino did in fact say that “the button’s pushed on [Simmons].” J.A.
6226. Rather, the Government used this phone call to prove the effect that Skino’s words
had on their eventual listener, Simmons. Stated differently, the focus here was not to prove
as true the reasons for the “beef” as stated on the call, but to prove how those reasons
caused Simmons to react just days later. Thus, the trial court did not err in admitting the
statements in the call as non-hearsay.
B.
We turn next to the claimed errors in the district court’s jury instructions. We review
these challenges for an abuse of discretion. United States v. Kivanc, 714 F.3d 782, 794 (4th
Cir. 2013). Defendants “face[] a heavy burden, for ‘we accord the district court much
discretion’ to fashion the charge.” Noel v. Artson, 641 F.3d 580, 586 (4th Cir. 2011)
(citation omitted). We review each challenged instruction “holistically” to determine
whether it “adequately informed the jury” of the law, without misleading or confusing the
jury. Id. (citation and internal quotation marks omitted). If a defendant claims that the
district court improperly failed to give a proposed instruction, we will reverse only if it is
shown that the proposed instruction: “(1) was correct; (2) was not substantially covered by
the court's charge to the jury; and (3) dealt with some point in the trial so important, that
failure to give the requested instruction seriously impaired that party's ability to make its
37
case.” Id. at 586–87 (internal quotation marks omitted) (quoting United States v. Lighty,
616 F.3d 321, 366 (4th Cir. 2010)).
1.
Defendants first argue that the district court was required to give their requested
“multiple conspiracies” instruction, because the December 23 call between Skino and Nino
allegedly “established that Skino’s line, including Blacko, Lanez, and Nino, were a
separate enterprise with competing objectives from the RICO conspiracy charged in Count
One.” Cross-Opening Br. 83–84.
A multiple conspiracies instruction is appropriate where “the proof at trial
demonstrates that [Defendants] were involved only in separate conspiracies unrelated to
the overall conspiracy charged in the indictment.” United States v. Cannady, 924 F.3d 94,
101 (4th Cir. 2019) (quoting United States v. Kennedy, 32 F.3d 876, 884 (4th Cir. 1994)).
Such an instruction is designed to abate the risk that a jury will “imput[e] guilt to [a
defendant] as a member of one conspiracy because of the illegal activity of members of
[an]other conspiracy.” United States v. Roberts, 262 F.3d 286, 294 (4th Cir. 2001).
The trial court did not abuse its discretion in refusing to give a multiple conspiracies
instruction. At most, the evidence showed that Simmons and Skino were rivals within the
same RICO enterprise. “To the extent that [D]efendants seek to establish a legal principle
that members of warring factions within an umbrella conspiracy necessarily lack the unity
of interest to be conspirators in the umbrella conspiracy, we reject that principle.” United
States v. Marino, 277 F.3d 11, 25 (1st Cir. 2002). As several of our sister circuits have
aptly reasoned, “[t]he existence of an internal dispute does not signal the end of an
38
enterprise, particularly if the objective of, and reason for, the dispute,” like here, “is control
of the enterprise.” United States v. Orena, 32 F.3d 704, 710 (2d Cir. 1994); see also United
States v. Fernandez, 388 F.3d 1199, 1222–23 (9th Cir. 2004) (holding that despite the
presence of two warring factions, a single conspiracy existed, because the factions “still
identified themselves as members” of the gang, “invoked the reputation and power of the
group” when dealing with outsiders, “and expected the entire organization to endure
beyond the ‘war’”), as amended, 425 F.3d 1248 (9th Cir. 2005); Marino, 277 F.3d at 25–
26; United States v. Coonan, 938 F.2d 1553, 1560–61 (2d Cir. 1991) (holding that a gang
was a single enterprise despite “violent in-fighting,” because the gang’s “power structure
endured and its members functioned as a unit”). Thus, there is no error here.
2.
Next, Defendants claim that the district court reversibly erred in instructing the jury
on the principles of co-conspirator liability, because the instruction was largely modeled
on the Supreme Court’s decision in Pinkerton. They contend that such an instruction is
incompatible with Virginia law because Virginia has not adopted a Pinkerton theory of co-
conspirator liability. Again, we disagree.
The final version 16 of the co-conspirator liability instruction, Instruction 39, read:
There are two ways that the government can prove a particular defendant
guilty of the substantive crimes charged in the second superseding
indictment. The first is by proving that a particular defendant personally
16
This was not the first version of Instruction 39 read to the jury. The initial version
of the instruction, the Government later conceded, potentially imposed a broader basis of
co-conspirator liability than allowed by law. Accordingly, the Government proposed
narrowing the scope of the instruction, to which no Defendant objected.
39
committed, participated in or aided and abetted the individual crime . . . .
Second is based on the legal rule that all members of a conspiracy are
responsible for the acts committed by the other members, as long as those
acts are committed to help advance the conspiracy and are within the
reasonably foreseeable scope of the agreement. In other words, under certain
circumstances, the act of one conspirator may be treated as the act of all. This
means that all the conspirators may be convicted of a crime committed by
only one of them, even though they did not all personally participate in that
crime themselves. In other words, a member of a conspiracy who commits a
crime during the existence or life of the conspiracy and commits the crime in
order to further or somehow advance the goals or objectives of the conspiracy
may be considered by you to be acting as the agent of the other members of
the conspiracy. The illegal actions of this conspirator in committing the
substantive crime may be attributed to other individuals who are at the time
members of the conspiracy, so long as the commission of that substantive
crime was reasonably foreseeable to those other individuals. Under certain
conditions, therefore, a defendant may be found guilty of a substantive crime
even though he did not participate directly in the acts constituting that
offense.
J.A. 5343–44.
Because Defendants never objected to this instruction, see J.A. 5340–41, we review
their challenge for plain error, Fed. R. Crim. P. 52(b); Olano, 507 U.S. at 731–32. Our
plain error review ends at the first step, for we can divine no error in the trial court’s co-
conspirator liability instruction. Instead, the trial court’s instruction is wholly consistent
with Virginia law governing co-conspirator liability. See, e.g., Brown v. Commonwealth,
107 S.E. 809, 811 (Va. 1921) (“All those who assemble themselves together with an intent
to commit a wrongful act, the execution whereof makes probable, in the nature of things,
a crime not specifically designed, but incidental to that which was the object of the
confederacy, are responsible for such incidental crime.” (citation and internal quotation
marks omitted)); Owens v. Commonwealth, 675 S.E.2d 879, 881 (Va. Ct. App. 2009) (“[A]
co-conspirator may be criminally liable for an act of another member of the conspiracy if
40
the act is ‘done in the furtherance of the conspiracy’ and can ‘be reasonably foreseen as a
necessary or natural consequence of the’ conspiracy.” (quoting Pinkerton, 328 U.S. at 647–
48)). We therefore reject Defendants’ argument as to Instruction 39.
C.
Defendants assert that the district court’s third and final claimed instructional error
resulted in a constructive amendment of the VICAR Assault Counts. We agree, and
therefore reverse Defendants’ respective convictions on these counts.
1.
The SSI predicated the VICAR Assault Counts on two state law offenses: violations
of Va. Code Ann. §§ 18.2-53.1 and 18.2-282. Section 18.2-53, which was not charged in
the SSI, deems it unlawful for any person committing or attempting to commit a felony to
“unlawfully shoot, stab, cut or wound another person.” But section 18.2-53.1 more harshly
punishes a different category of conduct, deeming it “unlawful for any person to use or
attempt to use any pistol, shotgun, rifle, or other firearm or display such weapon in a
threatening manner while committing or attempting to commit” a specified list of felonies,
including murder. Section 18.2-282, Virginia’s general brandishing statute, deems it
unlawful “for any person to point, hold or brandish any firearm or any air or gas operated
weapon or any object similar in appearance, whether capable of being fired or not, in such
manner as to reasonably induce fear in the mind of another.”
The instructions that the parties jointly proposed to the district court did not
accurately track the SSI. Those proposed instructions correctly referenced section 18.2-282
as one of the two state law predicates supporting the VICAR Assault Counts, but
41
incorrectly referenced section 18.2-53 (not section 18.2-53.1, as stated in the SSI) as the
second state law predicate offense. See Prop. Instr. Nos. 74, 76, Simmons, No. 2:16-cr-130,
ECF 388-1. 17 And when it came to explaining to the jury the elements of the two state law
offenses undergirding the VICAR Assault Counts, Proposed Instruction 80 correctly
defined the elements of section 18.2-282, but incorrectly referenced and explained the
elements of section 18.2-53, not section 18.2-53.1. See Prop. Instr. No. 80. 18
These errors permeated the court’s final jury instructions on all of the VICAR
Assault Counts. Just like the proposed instructions, the district court correctly referenced
and explained to the jury the elements of section 18.2-282 as one of the two state law
predicates. J.A. 5298; see Kelsoe v. Commonwealth, 308 S.E.2d 104, 104 (Va. 1983) (per
curiam) (setting forth section 18.2-282’s elements). However, the court incorrectly
explained and referenced section 18.2-53 as the other state law predicate, instead of the
actual predicate charged in the SSI, section 18.2-53.1.
17
The lone exception was Count 8, which the parties correctly identified in one
proposed instruction as being predicated upon a violation of section 18.2-53.1. Prop. Instr.
No. 76, Simmons, No. 2:16-cr-130, ECF 388-1. The other proposed instructions relating to
Count 8, however, incorrectly referenced section 18.2-53. See Prop. Instr. Nos. 74, 80.
18
A criminal defendant is often not entitled to reversal of his conviction where he
invites the error he complains of on appeal. See, e.g., United States v. Herrera, 23 F.3d 74,
75–76 (4th Cir. 1993). That is especially true on plain error review, for “an error that was
invited by the appellant ‘cannot be viewed as one that affected the fairness, integrity, or
public reputation of judicial proceedings.’” United States v. Lespier, 725 F.3d 437, 450
(4th Cir. 2013) (quoting United States v. Gomez, 705 F.3d 68, 76 (2d Cir. 2013)). The
Government has not raised this argument on appeal, and we offer no view on whether this
occurred or any consequence of it.
42
Neither Defendants nor the Government brought this mistake to the attention of the
district court. In fact, it was the district court that first noticed it in ruling on Defendants’
final post-trial motions. But the court did not address the legal significance of it, observing
that “perhaps for their own valid reasons, neither party has raised such apparent incongruity
before this Court.” Simmons, 2018 WL 6012368, at *5 n.6.
Ultimately, the jury convicted Defendants of the VICAR Assault Counts, but did so
on a general verdict form for each defendant. Thus, the jurors were not asked to specify if
they found either, or both, of the Virginia state law predicates underlying those counts
satisfied. All the verdict form asked was whether the jury found Defendants guilty of the
VICAR Assault Offense alleged in the relevant count.
2.
Because Defendants did not object to the trial court’s instructions on the VICAR
Assault Counts, we review only for plain error. See Fed. R. Crim. P. 52(b); Olano, 507
U.S. at 731–32. It appears uncontested, and we agree, that a “clear” and “obvious” error
occurred here. Olano, 507 U.S. at 734. The trial court should not have instructed the jury
on Va. Code Ann. § 18.2-53, which proscribes a different criminal offense than the one
charged in the SSI, section 18.2-53.1. Before proceeding to the third Olano prong, whether
the error affected Defendants’ substantial rights, we pause to determine what kind of error
occurred, for the characterization of that error significantly impacts the analysis.
Defendants argue that the instructional error amounted to a constructive amendment
of the VICAR Assault Counts. Because section 18.2-53 proscribes a wider range of conduct
than section 18.2-53.1, they posit that the district court impermissibly broadened the basis
43
for their convictions. Therefore, Defendants contend, we must correct the error, even on
plain error review, because in our circuit constructive amendments are “error per se.”
United States v. Floresca, 38 F.3d 706, 714 (4th Cir. 1994) (en banc).
The Government counters that there was no constructive amendment, and instead
posits that we should view this case as a species of “alternative theory” instructional error.
It asserts that the error here “affected just one of two alternative state-law predicates
presented to the jury,” thereby concerning only “the predicate, not the count.” Cross-
Response Br. 18, 23 (emphases in original). As a result, the Government concludes, we
should assess the error “under the rubric of harmlessness to determine whether the count
survives in view of the strength of the evidence on any still-valid theories of conviction.”
Cross-Response Br. 23.
By instructing on the broader section 18.2-53 unalleged predicate instead of the
narrower section 18.2-53.1 alleged predicate, the district court’s jury instructions
broadened the possible basis for conviction on each of the VICAR Assault Counts. Further,
without a special jury verdict form, we cannot know whether the jury convicted Defendants
based on the properly-indicted, properly-instructed section 18.2-282 predicate, or the
unindicted, improper section 18.2-53 predicate. Under our binding precedent, we are
constrained to find that a constructive amendment occurred and that Defendants’
convictions on the VICAR Assault Counts must be reversed even on plain error review.
a.
The Fifth Amendment’s Grand Jury Clause “guarantees that a criminal defendant
will be tried only on the charges in a grand jury indictment,” so “only the grand jury may
44
broaden or alter the charges in the indictment.” United States v. Randall, 171 F.3d 195, 203
(4th Cir. 1999) (citation and internal quotation marks omitted). “A constructive amendment
to an indictment occurs when either the [G]overnment (usually during its presentation of
evidence and/or its argument), the court (usually through its instructions to the jury), or
both, broadens the possible bases for conviction beyond those presented by the grand jury.”
Floresca, 38 F.3d at 710 (emphasis added). As the Supreme Court has explained: “court[s]
cannot permit a defendant to be tried on charges that are not made in the indictment against
him.” Stirone v. United States, 361 U.S. 212, 217 (1960). Thus, the resulting incongruity
between the indictment and the conviction that a constructive amendment causes
“destroy[s] the defendant’s substantial right to be tried only on charges presented in [the]
indictment.” Id.Stirone is not materially distinguishable from the case before us. There, the grand
jury indicted Stirone under the Hobbs Act for unlawfully obstructing interstate commerce,
to wit the movement of sand. Id. at 213–14. But at trial, the Government introduced
evidence that he also interfered with steel shipments, and the district court instructed the
jury that the interstate commerce element of his Hobbs Act charge could be satisfied “either
on a finding that” Stirone obstructed the movement of sand or steel. Id. at 214 (emphasis
added). This, the Supreme Court held, amounted to a constructive amendment, in violation
of the Fifth Amendment’s Grand Jury Clause. “[W]hen only one particular kind of
commerce is charged to have been burdened[,] a conviction must rest on that charge and
not another[.]” Id. at 218. By allowing the jury to convict Stirone based on the uncharged
allegations of interfering with steel, “the basic protection the grand jury was designed to
45
afford is defeated,” for one “cannot know whether the grand jury would have included in
its indictment a charge that commerce in steel . . . had been interfered with.” Id. at 218–19.
Because interference with steel “might have been the basis” for Stirone’s conviction, the
district court committed a “fatal,” reversible error. Id. at 219.
The same principles apply here. In Stirone terms, section 18.2-282 is our “sand,”
and section 18.2-53 is our “steel.” The jury’s convictions on the VICAR Assault Counts
could have rested “either on a finding” that in furtherance of a RICO enterprise, Defendants
committed assault with a dangerous weapon, as that offense is defined by section 18.2-53
(an unindicted predicate) or brandishment under section 18.2-282 (one of the indicted
predicates). Id. at 214; see 18 U.S.C. § 1959(a)(3). But we have no way of knowing the
basis for conviction. “[W]e cannot know whether the grand jury would have included
[section 18.2-53] in its indictment” as a third alternative predicate charge, yet because of
the district court’s jury instruction and the use of a general verdict form, “this might have
been the basis upon which the trial jury convicted [Defendants].” Stirone, 361 U.S. at 219.
Because section 18.2-53 provided the jury with a broader basis for a VICAR Assault
conviction than the predicate offenses alleged in the indictment (sections 18.2-53.1 and
18.2-282), the district court’s instruction on section 18.2-53 resulted in a constructive
amendment of the SSI. 19 See id.; see also Randall, 171 F.3d at 210 (holding that where the
19
By its terms, section 18.2-53 is not a lesser-included offense of section 18.2-53.1.
See Commonwealth v. Dalton, 524 S.E.2d 860, 862 (Va. 2000) (“[A]n offense is not a
lesser-included offense if it contains an element that the charged offense does not
contain.”).
46
Government specified a particular predicate offense in support of an 18 U.S.C. § 924(c)
charge, “the district court was not allowed[,] through its jury instructions, to broaden the
bases of conviction to include [a] different § 924(c) predicate offense”); Floresca, 38 F.3d
at 711 (holding that a constructive amendment occurred because “[t]he jury was allowed
to return a guilty verdict upon finding that Floresca approached Lopez with the intent to
affect either his cooperation in the investigation or his testimony at trial”).
Whether or not the Government’s effort to read this case through our line of
“alternative theory” instructional error cases is persuasive is of no consequence because
precedent forecloses that argument. The Government has failed to distinguish our binding
caselaw––Stirone, Randall, and Floresca––from the situation before us. Those cases make
clear that the improper section 18.2-53 predicate instruction gave the jurors a broader basis
to find Defendants guilty of each VICAR Assault Count than the section 18.2-53.1
predicate alleged in the SSI. So it is irrelevant that the court correctly instructed on the
alternative predicate offense, section 18.2-282, for “it is the broadening [of the indictment]
itself that is important––nothing more.” Floresca, 38 F.3d at 711.
b.
Having determined that the trial court constructively amended the VICAR Assault
Counts, we return to our plain error analysis under Olano. Sitting en banc in Floresca, this
Court held that constructive amendments are structural errors, meaning that even under
plain error review, constructive amendments must be considered “per se” prejudicial. Id.at 711–14. Stated differently, in our circuit, constructive amendments always affect a
defendant’s substantial rights, such that Olano’s third prong is satisfied. Id. at 712–14.
47
Further, Floresca mandates that we exercise our discretion under the fourth Olano prong
to correct that error under Rule 52(b), because the possibility of “convicting a defendant of
an unindicted crime affects the fairness, integrity, and public reputation of federal judicial
proceedings in a manner most serious.” Id. at 714. 20 We therefore follow that binding
20
In a footnote, the Government “maintains that Floresca was wrongly decided and
that an unpreserved claim of constructive amendment must satisfy the standards for plain
error.” Cross-Response Br. 20 n.1. There is a legitimate question as to whether Floresca’s
per se reversal rule in plain error constructive amendment cases remains doctrinally sound
in the wake of the Supreme Court’s post-Olano plain error jurisprudence, most prominently
the decisions in Johnson v. United States, 520 U.S. 461 (1997), United States v. Cotton,
535 U.S. 625 (2002), and United States v. Marcus, 560 U.S. 258 (2010). After all, while
some courts treat the issue of prejudice for purposes of Olano’s third prong differently, we
are the only circuit that requires a panel to exercise its discretion to notice and correct
constructive amendments on plain error review. See United States v. Brandao, 539 F.3d
44, 57, 62–63 (1st Cir. 2008); United States v. Thomas, 274 F.3d 655, 671–72 (2d Cir.
2001) (en banc); United States v. Syme, 276 F.3d 131, 154 n.9 (3d Cir. 2002) (en banc);
United States v. Daniels, 252 F.3d 411, 413–14 & n.8 (5th Cir. 2001); United States v.
Russell, 595 F.3d 633, 643–44 (6th Cir. 2010); United States v. Remsza, 77 F.3d 1039,
1044 (7th Cir. 1996); United States v. Gavin, 583 F.3d 542, 546–47 (8th Cir. 2009); United
States v. Hugs, 384 F.3d 762, 766–68 (9th Cir. 2004); United States v. Brown, 400 F.3d
1242, 1253–55 & n.6 (10th Cir. 2005); United States v. Madden, 733 F.3d 1314, 1319–20
(11th Cir. 2013); United States v. Hall, 610 F.3d 727, 743–44 (D.C. Cir. 2010).
A panel of this Court cannot overrule a prior precedential decision, let alone an en
banc ruling. See McMellon, 387 F.3d at 332. But if our prior decision “rests on authority
that subsequently proves untenable,” United States v. Williams, 808 F.3d 253, 261 (4th Cir.
2015) (citation omitted), or the Supreme Court “specifically reject[s] the reasoning on
which” it is based, Etheridge v. Norfolk & W. Ry. Co., 9 F.3d 1087, 1090–91 (4th Cir.
1993), we are not bound by it.. The Government has not made that argument––that
Floresca is no longer good law in light of the Supreme Court’s opinions in Johnson,
Cotton, and Marcus––before us. So we decline to take a position on whether that
intervening precedent compels us to abandon parts of Floresca’s holding and apply the
decision as it stands.
48
precedent today and hold that Defendants’ respective convictions on the VICAR Assault
Counts, Counts 8, 15, 18, 27, and 29, must be reversed. 21
D.
Lastly, we address Defendants’ remaining sufficiency claims. Criminal convictions
“must be upheld” if, when viewing the evidence and all reasonable inferences therefrom
“in the light most favorable to the Government,” there is “substantial evidence” to support
them. United States v. Moye, 454 F.3d 390, 394 (4th Cir. 2006) (en banc) (citation and
internal quotation marks omitted). “[S]ubstantial evidence is evidence that a reasonable
finder of fact could accept as adequate and sufficient to support a conclusion of a
defendant’s guilt beyond a reasonable doubt.” United States v. Burgos, 94 F.3d 849, 862
(4th Cir. 1996) (en banc). In this analysis, “[w]e also assume that the jury resolved all
contradictions in testimony in favor of the [G]overnment,” and if there are two or more
reasonable interpretations of the evidence, the jury decides which one controls. Moye, 454
F.3d at 394. We also defer to the jury’s credibility findings. United States v. Kelly, 510
F.3d 433, 440 (4th Cir. 2007). Ultimately, Defendants’ burden is “heavy,” because reversal
of the conviction is only appropriate “where the prosecution’s failure is clear.” United
21
Reversing these convictions does not require reversing the related § 924(c) counts
(Counts 9, 16, 19, and 28). The verdict forms for each Defendant asked the jury to specify
which of the predicate offenses the jury found satisfied for each § 924(c) count, and for
Counts 9, 16, 19, and 28, the jury found that the Government proved at least one valid
predicate offense other than the VICAR Assault offenses. J.A. 6316–19, 6323–30, 6334.
However, our holding here does mean that we need not address Defendants’ alternative
argument that section 18.2-282 is a legally insufficient predicate for a VICAR Assault
offense. See Cross-Opening Br. 31–37.
49
States v. Foster, 507 F.3d 233, 244–45 (4th Cir. 2007) (citation and internal quotation
marks omitted).
Defendants collectively argue that the evidence was insufficient, as a matter of
Virginia law, to show that they “attempted” to murder Lanez or Nino. Simmons argues that
the evidence was insufficient to prove that he was vicariously liable for any murders or
attempted murders committed by his subordinates. Mitchell claims that the Government
insufficiently proved that the murders and attempted murders he was involved in were in
furtherance of the RICO enterprise. And Lassiter asserts that the evidence did not
adequately prove that he was a member of the RICO conspiracy. We address each
contention in turn.
1.
We begin with Defendants’ challenges to their VICAR attempted murder
convictions in Counts 22 (Lanez) and 24 (Nino), which respectively alleged that
Defendants attempted to murder two of Skino’s Generals, Lanez and Nino. In any VICAR
prosecution, the Government must prove, beyond a reasonable doubt:
(1) there was a RICO enterprise; (2) it was engaged in racketeering activity
as defined in RICO; (3) the defendant in question had a position in the
enterprise; (4) the defendant committed the alleged crime of violence; and
(5) his general purpose in so doing was to maintain or increase his position
in the enterprise[.]
United States v. Zelaya, 908 F.3d 920, 926–27 (4th Cir. 2018) (internal quotation marks
omitted) (quoting United States v. Fiel, 35 F.3d 997, 1003 (4th Cir. 1994)). The challenges
here to Counts 22 and 24 only address the fourth element, the commission of the
substantive attempted murder offense.
50
Because the SSI only alleges that the attempted murders violated Virginia law, we
look only to Virginia law in determining whether the attempted crime occurred. Cf. Mathis,
932 F.3d at 264–67 (determining whether various VICAR offenses were “crimes of
violence” under 18 U.S.C. § 924(c) by reference to the state law predicate offense alleged
in the indictment). First-degree murder under Virginia law includes “[m]urder . . . by any
willful, deliberate, and premeditated killing.” Va. Code Ann. § 18.2-32. Accordingly, there
are two essential elements to an attempted murder prosecution under Virginia law: (1) a
“specific intent to kill the victim”; and (2) some overt act in furtherance of that intent.
Commonwealth v. Herring, 758 S.E.2d 225, 235 (Va. 2014) (internal quotation marks
omitted) (quoting Sizemore v. Commonwealth, 243 S.E.2d 212, 214 (Va. 1978)). The
question of intent is a factual one for the jury. Epps v. Commonwealth, 216 S.E.2d 64, 69
(Va. 1975).
a.
Defendants first posit that there was insufficient evidence of an intent to kill either
Nino or Lanez. To the contrary, the record provides ample evidence for the jury’s factual
finding of intent. On December 27, 2015, Simmons gave his men the order to “mash the
gas” on anyone in Skino’s line who refused to jump to Simmons’ line. J.A. 4153. Based
on the testimony that “mash[ing] the gas” on someone meant to kill them, J.A. 1660, the
jury was entitled to interpret Simmons’ order as one to kill that his men were bound to
follow under Nine Trey’s tenets. Indeed, the fact that Simmons’ men immediately left his
house and went to Nino’s apartment to carry out the order underscores their adoption of it.
That the order was conditional––only “mash the gas” if Skino’s men refused to jump lines–
51
–is of no moment. Under the common law, the “specific intent to commit a wrongful act
may be conditional”; “[a]n intent to kill, in the alternative, is nevertheless an intent to kill.”
Holloway v. United States, 526 U.S. 1, 9–11 (1999) (citations and internal quotation marks
omitted); see also Nobles v. Commonwealth, 238 S.E.2d 808, 810 (Va. 1977) (explaining
that a conditional threat—that the defendant would kill the victim if she moved—was
probative evidence of an intent to kill). Once Simmons’ men learned that no one within
Skino’s line intended to abandon Skino, the jury could reasonably infer that Simmons and
his subordinates intended to kill any of Skino’s men that they encountered, including Nino
and Lanez. Since no one was willing to switch lines, they were to “mash the gas” on all of
them. See, e.g., J.A. 4162 (Davis’ testimony that if the men found Lanez that day, they
“was gonna kill him. More than likely.”). We therefore find the element of intent satisfied.
b.
Defendants’ more weighty challenge is to the sufficiency of the evidence underlying
the jury’s finding that they took an “overt act” in furtherance of their intent to murder either
Nino or Lanez. They assert that driving to Nino’s apartment and knocking on his door were
merely preparatory actions, and cannot constitute an “overt act.” Similarly, they argue that
driving to an empty house where they thought Lanez lived, and then leaving, was also a
merely preparatory act. As explained below, only the argument regarding Lanez is
meritorious.
Virginia follows the common law of attempt. Jones v. Commonwealth, 826 S.E.2d
908, 913 (Va. Ct. App. 2019) (en banc). At common law, an act is an “attempt” if it
“possess[es] four characteristics: first, it must be a step toward a punishable offense;
52
second, it must be apparently (but not necessarily in reality) adapted to the purpose
intended; third, it must come dangerously near to success; [and] fourth, it must not
succeed.” Id. (citation and internal quotation marks omitted). This case hinges on the third
prong, whether Defendants came “dangerously near” to the completion of murder. Id. An
act comes “dangerously near” to the completion of the substantive crime when the
defendant takes a “direct, but ineffectual, act to accomplish the crime,” also known as an
“overt act.” Id. at 914 (citations and internal quotation marks omitted). In other words, the
act must reach “far enough toward the accomplishment of the desired result to amount to
the commencement of the consummation” of the substantive crime. Id. (quoting Jay v.
Commonwealth, 659 S.E.2d 311, 320 (Va. 2008)).
How “far” is “far enough,” however, “is often a difficult [question],” so courts must
engage in a highly fact-specific, case-by-case analysis. Id. (quoting Jay, 659 S.E.2d at 320).
Over the years, Virginia’s courts have developed two general guiding principles regarding
this aspect of an attempted crime. First, an overt act giving rise to criminal liability “need
not be the last proximate act[] necessary to the consummation of the crime.” Id. at 916
(quoting Jay, 659 S.E.2d at 320). And second, an act of mere preparation, consisting of
“arranging the means necessary for the commission of the crime,” cannot serve as the
requisite “overt act.” Id. at 918 (quoting West v. Commonwealth, 157 S.E. 538, 539 (Va.
1931)).
The en banc Virginia Court of Appeals in Jones addressed Virginia’s “overt act”
jurisprudence, stating that whenever the Commonwealth proves that a defendant intended
to commit a crime, “slight acts done in furtherance of this design will constitute an
53
attempt.” Id. at 915 (quoting Lee v. Commonwealth, 131 S.E. 212, 214 (Va. 1926)). The
Attorney General of Virginia had argued in Jones that “an overt act is established if the
prosecution proves any ‘slight act’ done in furtherance of a defendant’s criminal intent.”
Id. at 914–15. The court rejected this reading, reasoning that it would turn acts historically
viewed as preparatory, like “driving to the location of the crime” or “walking toward the
entrance of the location of the robbery with a gun and/or mask in a pocket,” into “overt
acts.” Id. at 920. Instead, the court clarified that an overt act can be “slight,” id. at 917, but
only if it is one that begins the commission of at least one of the elements of the crime, id.
at 920. In other words, “preparation ends and attempt begins once an overt act commencing
an element of the intended crime is initiated with the requisite intent.” Id. at 918.
With those principles in mind, we look to guidance from other Virginia case law to
determine if the facts here show that Defendants commenced an element of attempted
murder regarding either Lanez or Nino. We find highly persuasive the rulings of the
Virginia Court of Appeals in Bottoms v. Commonwealth, 470 S.E.2d 153 (Va. Ct. App.
1996), and Rogers v. Commonwealth, 683 S.E.2d 311 (Va. Ct. App. 2009).
In Bottoms, the defendant parked his car on the shoulder of I-95, where a state
trooper had pulled over an unrelated third party. 470 S.E.2d at 155. Bottoms then held a
loaded and cocked revolver in between the driver and passenger seats, out of the trooper’s
sight, and made several attempts to “lure [the state trooper] into shooting range, intending
to kill him.” Id. The court upheld Bottoms’ attempted murder conviction because his
“active conduct” was “aimed at the accomplishment of the crime,” and thus “constituted
an overt act ‘adapted to produce’ the commission of murder.” Id. at 156.
54
In Rogers, the defendant and two other men planned an armed robbery of certain
occupants at an apartment. 683 S.E.2d at 312. Carrying their weapons, the men walked up
to the apartment and rang the doorbell. Id. at 312–13. The men knocked two more times
on the door, but the occupant, G.V., never opened it. Id. at 312. Rogers and his men knew
after the third ring that someone was home, but fearing detection, they returned to their car
and drove away. Id. at 312–13.
Rogers appealed his conviction for attempted robbery and, like Defendants here,
argued that it could not stand because “he and his companions merely planned the robbery
and went to the scene,” none of which were overt acts. Id. at 314. The Virginia Court of
Appeals disagreed, holding that the actions of obtaining weapons, driving to the apartment,
and knocking on the door to gain entry to the apartment “clearly moved beyond the
planning stage and into the realm of commencing the robbery and the use of the firearms.”
Id. The court further rejected the notion that G.V.’s refusal to open the door negated the
fact that Rogers and his men took an overt act towards the commission of the robbery. “If
the victims had opened the door, then [Rogers] and his companions would have committed
robbery and used firearms in the commission of that robbery. . . . G.V. simply prevented
[Rogers’] conviction for actual robbery and use of a firearm in the commission of an actual
robbery.” Id. at 316.
55
Applying the principles of these cases to Defendants’ actions here, 22 we hold that
the evidence was sufficient to show that as to Nino, Defendants took an overt act that
“commenc[ed] an element” of murder “with the requisite intent.” Jones, 826 S.E.2d at 918.
Just like in Rogers, Mitchell, Foye, Davis, and Lassiter “took [the] preparatory steps” of
obtaining firearms and driving to Nino’s apartment, “and then actually began following
through with their plan.” 683 S.E.2d at 315. Specifically, when Mitchell, Foye, and Lassiter
“knocked on [Nino’s] door with guns in hand, they were taking steps in the commission of
a [murder].” Id. The evidence, when viewed in the light most favorable to the Government,
similarly allows for the reasonable inference that “[i]f [Nino] had opened the door, then
[Mitchell, Foye, and Lassiter] would have committed [the murder].” Id. at 316. We are also
convinced that, like the acts of the defendant in Bottoms, the act of knocking on Nino’s
door was Defendants’ chosen means of commencing the murder by drawing Nino out of
his apartment to be shot. See 470 S.E.2d at 155–56. Though the act of knocking may be
“slight,” Jones instructs that a “slight” act is an “overt” one if it commences an element of
the intended offense, 826 S.E.2d at 917–18, and the jury was entitled to make that finding
here to establish the attempted murder of Nino.
22
Our reference to “Defendants’ actions” necessarily encompasses Simmons. We
note that Simmons was not present for any of the actions taken by Mitchell, Foye, Lassiter,
and Davis, but is still fully liable for them under Virginia’s principles of co-conspirator
liability. See Carter v. Commonwealth, 348 S.E.2d 265, 267–68 (Va. 1986) (“[T]he law is
well settled in Virginia that each co-actor is responsible for the acts of the others, and may
not interpose his personal lack of intent as a defense.”); Owens, 675 S.E.2d at 881.
56
We reach the opposite conclusion, however, regarding Lanez. Even when reading
the evidence in a light most favorable to the Government, we do not see that Defendants
commenced an element of murder. Defendants simply drove to a Virginia Beach
neighborhood where Mitchell believed Lanez lived. But since the house “looked[] like it
was empty,” Mitchell did not “want to go up and knock on the door.” J.A. 4162. Mitchell
only got out of the car to ask some people nearby if they had seen Lanez. They had not, so
Defendants left Virginia Beach and headed to Portsmouth to find Blacko. There is no
evidence that anyone else exited the vehicle or undertook any other acts regarding Lanez.
Citing the Virginia Supreme Court’s decision in Lee, 131 S.E. at 215, the
Government attempts to frame this as a case in which an “extraneous event,” Lanez’
absence from his house, thwarted Defendants’ completion of the murder. Gov’t Cross-
Response Br. 44–45. But this case is wholly unlike Lee, where the intended victim thwarted
the defendant’s murder plot by fighting off the defendant and, in the course of that physical
altercation, broke the defendant’s gun, making it impossible for the murder to occur. 131
S.E. at 214–15. To accept the Government’s view that Defendants’ unsuccessful efforts
here to find their victim’s house “commenc[ed] an element” of murder would dissolve the
distinction that Virginia courts have drawn between a “preparatory” and “overt” act.
Accordingly, we affirm Defendants’ conviction on Count 24 (the VICAR Attempted
Murder of Nino), but reverse their convictions as to Count 22 (the VICAR Attempted
Murder of Lanez). And because we reverse Defendants’ convictions as to Count 22, that
leaves only the RICO conspiracy alleged in Count One to support the 18 U.S.C. § 924(c)
57
offense in Count 23. But since that RICO conspiracy is not categorically a “crime of
violence,” see supra Part III, we must also reverse Defendants’ convictions as to Count 23.
2.
Simmons separately challenges the sufficiency of his VICAR convictions stemming
from the murders of Tynes and Mercer, and the attempted murders of R.F. and S.M. He
first argues that he lacked the requisite intent to murder these individuals. Second, he posits
that the evidence insufficiently connected these murders and attempted murders to Nine
Trey’s purposes. We discern no merit in either claim.
As noted, any VICAR offense requires the Government to prove that the defendant’s
“general purpose” in committing the substantive violent crime “was to maintain or increase
his position in the enterprise.” Zelaya, 908 F.3d at 927. The Government need not prove a
specific “nexus between the act of violence and the racketeering activity.” Fiel, 35 F.3d at
1005. Instead, “the motive requirement [is] satisfied if the jury could properly infer that the
defendant committed his violent crime because he knew it was expected of him by reason
of his membership in the enterprise or that he committed it in furtherance of that
membership.” Id. at 1004 (citation and internal quotation marks omitted). The conduct
satisfying the “purpose” element “could occur before [the] commission of a violent crime
covered by the statute––for example, if a mafia boss instructed a member to commit murder
or else be cast out of the organization,” or after, “for example, if the member returned to
mafia headquarters to boast about his exploits with a mind toward advancement.” United
States v. Umaña, 750 F.3d 320, 335 (4th Cir. 2014).
58
First, we find the evidence sufficiently demonstrated Simmons’ intent to murder
Tynes, and the connection of that shooting to his position in Nine Trey. At that time,
Simmons was still under a disciplinary “freeze” from his superior, Dido. Simmons was in
direct communication with Foye, the actual shooter, in the moments leading up to Tynes’
murder. Foye kept Simmons apprised that he was with Tynes, who Foye referred to as the
“meal,” or the target of the robbery. J.A. 1888–90, 5956. Just hours after the robbery, at
2:56 a.m., Simmons implored Foye that he needed the money before 11:00 a.m., “or we
dead bro.” J.A. 5957. And in a post-arrest interview, Simmons admitted that that money
was going to be used to repay Dido and get relief from the freeze. Because it is “well settled
in Virginia” that both Foye’s use of a firearm during a planned robbery and the resulting
death are reasonably foreseeable consequences of the robbery, Carter, 348 S.E.2d at 267–
68, both of Simmons’ arguments fail as to Tynes.
The evidence is also sufficient to prove Simmons’ connection to the murder of
Mercer and attempted murder of R.F. in the early morning hours of December 15, 2015:
the same night as the failed robbery plot of a gambling house, when Simmons still needed
money to repay Dido. Foye twice asked Simmons about “redrum,” or murder, that night.
Simmons eventually told Foye at 2:00 a.m. to “[h]andle that before 7:00,” which Foye did
just twenty minutes later. J.A. 5968–69. Whatever Foye’s own alleged personal
motivations were, based on Simmons’ directive to Foye to “handle” the “redrum” before
7:00, a jury could reasonably infer Simmons’ intent to have Mercer and R.F. murdered.
That order, Nine Trey’s requirement that subordinates follow the orders of their line’s
superiors, and Simmons’ continued need for money to repay Dido, all sufficiently connect
59
the murder and attempted murder to the purposes of Nine Trey. See Umaña, 750 F.3d at
335–36.
Finally, the evidence supports the jury’s findings of an intent to murder S.M., and
that it was in furtherance of Nine Trey’s purposes. S.M. was a victim of Simmons’
December 27, 2015 directive to “mash the gas” on Skino’s men. This internal struggle for
power within Nine Trey easily satisfies VICAR’s purpose requirement. And there was
ample evidence for the jury to conclude that Simmons intended to have anyone murdered
who did not wish to fall under his command. Once Simmons’ men learned that Blacko
would not fall under Simmons’ line, the jury was entitled to infer that Simmons intended
for the “mash the gas” order to extend to him, too, despite Blacko initially being “vested.”
Given Nine Trey’s tenet that if the target of violence cannot be reached, then the closest
person to that target would be harmed, there was also sufficient evidence for the jury to
find that the attempted murder of S.M. was a reasonably foreseeable consequence of
Simmons’ directive. While Simmons claims to have been enraged by S.M.’s shooting,
there was video evidence at trial showing him reenacting the shooting and his apparent
approval of it. Davis also testified that in his view, Simmons appeared to be more upset
about the fact that his name was tied to the shooting than any injury to S.M. We respect the
jury’s resolution of that evidence. See Kelly, 510 F.3d at 440.
In sum, we conclude that the Government produced sufficient evidence for a
reasonable jury to conclude that Simmons intended to murder Tynes, Mercer, R.F., and
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S.M., and that each shooting was committed in furtherance of Simmons’ membership in
Nine Trey. Thus, we affirm his VICAR convictions on Counts 3, 5, 7, 8, 26, and 27. 23
3.
Mitchell, largely adopting Simmons’ arguments, also asserts that the evidence failed
to sufficiently prove that any of the shootings in which he was involved with––the murders
of Mercer, Linda, Wayne, and Roberts and the attempted murders of R.F., Nino, and S.M.
––were done to further the purposes of Nine Trey.
We find no merit in Mitchell’s arguments. In December 2015, Mitchell was
motivated to “put in work” and compete with Foye to be just as violent, if not more violent,
than Foye in order to improve his chances of gaining rank within Nine Trey. The jury could
properly connect this motive to each of his murders and attempted murders. Regarding the
murders of Linda and Wayne, the jury was further entitled to conclude that his participation
was expected of him based on his membership in Nine Trey, because Nine Trey’s tenets
called for “snitches,” or the closest person that could be reached, to be killed. See Zelaya,
908 F.3d at 927. Additionally, Mitchell’s bragging to Foye and Brehon about his senseless
killing of Roberts for walking on his side of the street also connects that murder to his
membership in Nine Trey. See Umaña, 750 F.3d at 335–36. Thus, we do not hesitate to
affirm Mitchell’s VICAR convictions on Counts 5, 7, 8, 10, 11, 23, 26, and 27.
23
Simmons also challenges the sufficiency of the evidence supporting two of his
§ 924(c) convictions in Counts 34 and 36, which stem from his possession of a firearm
during his drug trafficking conduct. Having reviewed the record, we summarily reject these
claims.
61
4.
Next, Lassiter argues that there was insufficient evidence to support his conviction
on Count One, the RICO conspiracy offense, because there was no evidence to show that
he became a Nine Trey member. Lassiter’s argument is foreclosed by our recent ruling in
United States v. Cornell, 780 F.3d 616 (4th Cir. 2015).
Wearing Nine Trey’s colors at Simmons’ house, Lassiter “was present at the
meeting[] planning” the attempted murders of Nino and S.M., and “directly participated”
in those racketeering acts. Id. at 630–31. “From these facts, the jury could infer that
[Lassiter] understood the [murders] to constitute [gang] activities, and that by joining in
them, he agreed to advance the enterprise. Under our precedent, nothing more is required.”
Id. (citations omitted). Indeed, we emphasized in Cornell that “[o]utsiders who help the
enterprise accomplish its illicit goals, thereby evidencing their agreement to advance the
cause, are fully liable under § 1962(d).” Id. at 631. That is precisely Lassiter’s involvement
with Nine Trey here. Thus, we affirm Lassiter’s conviction on Count One.
V.
For the foregoing reasons, in the Government’s lead appeal, we affirm the district
court’s holding that a RICO conspiracy, “aggravated” or not, is not categorically a crime
of violence. As to Defendants’ cross-appeal, we hold that the district court’s jury
instructions constructively amended the VICAR Assault Counts, and that there was
insufficient evidence supporting their convictions for the VICAR attempted murder of
Lanez and the related § 924(c) count. Accordingly, we reverse Defendants’ convictions on
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Counts 8, 15, 18, 22, 23, 27, and 29, vacate their respective sentences, and remand for
further proceedings consistent with this opinion. In all other aspects, however, we affirm.
Nos. 18-4875, 18-4876, & 18-4877:
AFFIRMED
Nos. 19-4269, 19-4287, & 19-4345:
AFFIRMED IN PART, REVERSED IN PART,
VACATED IN PART, AND REMANDED
63
RICHARDSON, Circuit Judge, concurring in part and concurring in the judgment:
I happily join my good colleague’s opinion in all but its analysis finding the charged
racketeering conspiracy was not a crime of violence (Part III). I agree with that conclusion
but take a different path.
Simmons and Mitchell were charged and convicted of possessing a firearm in
furtherance of a “crime of violence.” 18 U.S.C. § 924(c). The crime-of-violence predicate
was the charged racketeering conspiracy. To qualify as a “crime of violence,” that
conspiracy must satisfy the “force clause,” meaning that it must have “as an element the
use, attempted use, or threatened use of physical force against the person or property of
another.” Id. § 924(c)(3)(A); cf. United States v. Davis, 139 S. Ct. 2319, 2336 (2019)
(finding § 924(c)(3)’s residual clause unconstitutionally vague).
We apply the “categorical approach” to determine whether an offense satisfies the
“force clause” when the offense statute defines a single crime with an indivisible set of
elements. United States v. Mathis, 932 F.3d 242, 264, 267 (4th Cir. 2019). Under that
approach, we ask “whether the statutory elements of the offense necessarily require the
use, attempted use, or threatened use of physical force.” United States v. Simms, 914 F.3d
229, 233 (4th Cir. 2019) (en banc). But if the statute is divisible into “multiple, alternative
versions of the crime” with potential offense elements listed in the alternative, we use
a “modified” categorical approach. Descamps v. United States, 570 U.S. 254, 262–63
(2013). The modified-categorical approach permits looking beyond the statute to certain
documents to see which of the alternative elements formed the basis of the conviction.
United States v. Bryant, 949 F.3d 168, 173 (4th Cir. 2020). If those documents identify the
64
crime of conviction from the alternatives, we consider whether it categorically satisfies the
force clause. Id.Under either approach, generic conspiracies face a significant hurdle to being
classified as a “crime of violence” under the force clause. See Simms, 914 F.3d at 233–34.
For a conspiracy is an “inchoate offense, the essence of which is an agreement to commit
an unlawful act.” Iannelli v. United States, 420 U.S. 770, 777 (1975). And an agreement
alone does not require “the actual, attempted, or threatened use of physical force.” Simms,
914 F.3d at 233–34.
A racketeering conspiracy requires proof of an agreement to commit a substantive
racketeering offense, one of which is conducting an enterprise through a pattern of
racketeering activity. United States v. Mouzone, 687 F.3d 207, 217–18 (4th Cir. 2012); 18
U.S.C. § 1962(c), (d). The object of the agreement is the commission of a pattern of
racketeering activity. But, like other conspiracies, a conviction does not require that the
co-conspirators take any action in furtherance of their agreement, much less commit any
of the identified racketeering activities. Salinas v. United States, 522 U.S. 52, 63 (1997).
It is the agreement to engage in racketeering activity that forms the basis of the racketeering
conspiracy.
But here, the indictment charged that the racketeering conspiracy involved five
actual murders under Virginia state law. And the jury found that those murders were
committed as part of the racketeering conspiracy. In Virginia, those murders are
punishable by a maximum term of life in prison. See Va. Code Ann. § 18.2-10 (1998); id.§ 18.2-32 (2017). Under the racketeering statute, establishing that the racketeering
65
conspiracy was “based on” at least one of the murders—as an offense punishable by life in
prison—increases the maximum sentence from 20 years to life imprisonment. 18 U.S.C.
§ 1963(a).
This “aggravated” racketeering conspiracy based on the charged murders, the
government argues, is categorically a crime of violence. Under Virginia law, first-degree
murder necessarily involves the actual, attempted, or threatened use of physical force.
Mathis, 932 F.3d at 265 (holding that first-degree murder under Virginia law, Va. Code
Ann. § 18.2-32, is a crime of violence under the force clause). So, in the government’s
view, this aggravated racketeering conspiracy—that is, one based on murder—is an
alternative crime that constitutes a crime of violence.
I agree that the racketeering-activity murders that increase the statutory-maximum
punishment are “elements” of the charged racketeering conspiracy. The Supreme Court
has made clear that “[i]f statutory alternatives carry different punishments, then under
Apprendi they must be elements.” Mathis v. United States, 136 S. Ct. 2243, 2256 (2016)
(citations omitted). In that vein, in Burrage v. United States, the Court held that a “death
results” enhancement that increased a defendant’s minimum and maximum sentence was
“an element that must be submitted to the jury and found beyond a reasonable doubt.” 571
U.S. 204, 210 (2014) (citing Alleyne v. United States, 570 U.S. 99, 115–16 (2013);
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)). And the “elements” of a criminal
offense required to be submitted to the jury under Alleyne and Apprendi are the same as
the “elements” used to determine whether we employ a modified-categorical approach in
a crime-of-violence inquiry. See United States v. Runyon, 994 F.3d 192, *202 (4th Cir.
66
2021); see also United States v. Tsarnaev, 968 F.3d 24, 105 (1st Cir. 2020), petition for
cert. granted on other grounds, No. 20-443 (U.S. Mar. 22, 2021). So the racketeering
statute is divisible into at least two offenses: (1) a racketeering conspiracy that is not “based
on a racketeering activity for which the maximum penalty includes life imprisonment” and
(2) a racketeering conspiracy that is “based on a racketeering activity for which the
maximum penalty includes life imprisonment.” § 1963(a).
Given that our precedent dictates that the racketeering statute is divisible, we must
determine which of the two alternative crimes it includes was the crime of conviction. To
do so, we may “consult[] the trial record[,] including charging documents . . . and verdict
forms.” Johnson v. United States, 559 U.S. 133, 144 (2010). Those documents tell us that
the “crime of violence” on which Simmons and Mitchell’s § 924(c) convictions were
predicated was a racketeering conspiracy that was in turn “based on a racketeering activity
for which the maximum penalty includes life imprisonment” (murder). § 1963(a). The
jury’s special verdict forms thus make clear that they were convicted of the aggravated
conspiracy. And those jury findings allowed the judge to sentence Simmons and Mitchell
to life imprisonment on the racketeering-conspiracy charge.
So does an aggravated racketeering conspiracy qualify, categorically, as a “crime of
violence”? It does not.
First, it is of no consequence that the jury found the murders, instead of only an
agreement to commit the murders, occurred. For once we identify the crime of conviction,
in this case an aggravated racketeering conspiracy, we look only to the crime’s elements to
67
determine whether it satisfies the force clause. See Bryant, 949 F.3d at 173. The facts of
the case and the specific allegations and jury findings are irrelevant.
Second, the aggravating element—that the conspiracy is “based on” a life-sentence-
eligible racketeering activity—does not necessarily require “the actual, attempted, or
threatened use of physical force.” Simms, 914 F.3d at 233–34. The essence of a conspiracy
is the agreement, not the completion of the agreed-upon offense. And that agreement is
criminal when its object—what it is based on—is a pattern of racketeering activity. So a
racketeering conspiracy is “based on” the charged racketeering activities regardless
whether those racketeering activities are eventually completed. See Salinas, 522 U.S. at
63; see also United States v. Fernandez, 388 F.3d 1199, 1259 (9th Cir. 2004). It is enough
that the agreement contemplated the eventual occurrence of the charged racketeering
activities, even if they do not ultimately take place. Nothing in § 1963(a)’s enhancement
changes the Supreme Court’s directive that the object of a racketeering conspiracy need
not be completed. See Salinas, 522 U.S. at 63. *
*
The government must prove that the agreed-to racketeering activity was subject to
a life sentence if completed. So an allegation that the object of the agreement was somehow
limited to “attempted murder” instead of an agreement to commit murder would not subject
the Defendants to the increased statutory maximum. Nor would it be enough for the
government to allege that the racketeering activity agreed to was circularly limited to a
“conspiracy to commit murder.” See United States v. Warneke, 310 F.3d 542, 549–50 (7th
Cir. 2002). But where the charged object of the conspiracy was first-degree murder, then
the conspiracy is “based on” first-degree murder, which carries a life sentence under state
law, and the increased statutory penalty would apply even if the murder was not completed.
68
Certainly, the increased maximum penalty would apply if the defendants committed
the charged murders as part of their agreement. But it would also apply if the defendants
had merely agreed to commit the murders, without later carrying out that agreement by
killing someone. As an aggravated racketeering conspiracy may be committed by merely
agreeing to commit murder, it does not categorically satisfy the force clause because such
an agreement “does not invariably require the actual, attempted, or threatened use of
physical force.” Simms, 914 F.3d at 233–34. So even an “aggravated” racketeering
conspiracy is not a crime of violence under the force clause.
The cases the Government identifies—Runyon, 994 F.3d 192, Tsarnaev, 968 F.3d
24, and In re Hall, 979 F.3d 339 (5th Cir. 2020)—do not advise a different result. In those
cases, the increased statutory penalty applied when “death results,” which necessarily
requires completing the charged offense. Runyon, 994 F.3d at *203 (An “act that results
in death obviously requires ‘physical force.’ And the death resulting from a conspiracy to
commit murder for hire has the ‘requisite mens rea’ to constitute a use of physical force.”
(citations and emphasis omitted)); see also Tsarnaev, 968 F.3d at 104; In re Hall, 979 F.3d
at 344. But the increased statutory maximum for a racketeering conspiracy applies when
it is “based on” charged racketeering activity whether or not it is completed.
For these reasons, I would affirm the district court’s decision to vacate Simmons
and Mitchell’s convictions on the § 924(c) charge in Count 30. Accordingly, I concur in
the judgment on that issue while fully joining the rest of the Court’s opinion.
69