United States v. Daniel Mathis

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4633
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANIEL LAMONT MATHIS, a/k/a Gunna, a/k/a Mooch, a/k/a D-Man,
Defendant - Appellant.
No. 16-4635
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MERSADIES LACHELLE SHELTON, a/k/a Lady Gunns, a/k/a Maisha Love
Uhuru,
Defendant - Appellant.
No. 16-4637
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHANTAI MONIQUE SHELTON, a/k/a Tai, a/k/a Lady Blaze, a/k/a Boss Lady,
Defendant - Appellant.
No. 16-4641
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KWELI UHURU, a/k/a Travis Leon Bell, a/k/a K. Gunns, a/k/a Black Wolf, a/k/a
Babi,
Defendant - Appellant.
No. 16-4837
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTHONY DARNELL STOKES, a/k/a Face, a/k/a Black Face, a/k/a Kenyata
Baraka,
Defendant - Appellant.
No. 16-4838
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
2
v.
HALISI UHURU, a/k/a Arthur Lee Gert Wright, a/k/a Gritty, a/k/a Bones, a/k/a Big
Homey,
Defendant - Appellant.
Appeals from the United States District Court for the Western District of Virginia, at
Charlottesville. Glen E. Conrad, District Judge. (3:14-cr-00016-GEC-JCH-1; 3:14-cr-
00016-GEC-JCH-2; 3:14-cr-00016-GEC-JCH-3; 3:14-cr-00016-GEC-JCH-4; 3:14-cr-
00016-GEC-JCH-6; 3:14-cr-00016-GEC-JCH-7)
Argued: January 24, 2018 Decided: July 31, 2019
Before KEENAN and DIAZ, Circuit Judges, and DUNCAN, Senior Circuit Judge.
Affirmed in part, vacated in part, and remanded by published opinion. Judge Keenan wrote
the opinion, in which Judge Diaz and Senior Judge Duncan joined.
ARGUED: Frederick T. Heblich, Jr., OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charlottesville, Virginia, for Appellant Daniel Lamont Mathis. Paul Graham
Beers, GLENN, FELDMANN, DARBY & GOODLATTE, Roanoke, Virginia, for
Appellant Anthony Darnell Stokes. Christopher R. Kavanaugh, OFFICE OF THE
UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee. ON BRIEF:
Larry W. Shelton, Federal Public Defender, Roanoke, Virginia, Geremy C. Kamens,
Federal Public Defender, Alexandria, Virginia, Paul G. Gill, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia;
Aaron Lee Cook, Harrisonburg, Virginia; David Anthony Eustis, Charlottesville, Virginia;
Rhonda E. Quagliana, Charlottesville, Virginia; Michael T. Hemenway, Charlottesville,
Virginia; Sherwin John Jacobs, Harrisonburg, Virginia, for Appellants. Rick A.
Mountcastle, Acting United States Attorney, Roanoke, Virginia, Ronald M. Huber,
Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Charlottesville, Virginia, for Appellee.
3
BARBARA MILANO KEENAN, Circuit Judge:
This case involves the prosecution of several members of a violent street gang
known as the Double Nine Goon Syndikate (DNGS). After a multi-week trial, a jury
convicted Halisi Uhuru (Halisi), Anthony Stokes (Stokes), Kweli Uhuru (Kweli),
Mersadies Shelton (Mersadies), Shantai Shelton (Shantai), and Daniel Mathis (Mathis)
(collectively, the defendants) of conspiracy to violate the Racketeer Influenced and Corrupt
Organizations Act (RICO), 18 U.S.C. § 1962(d), based on their activities related to the
gang.
Mathis, Shantai, Mersadies, and Kweli (collectively, the capital defendants) also
were convicted, in relation to the murder of an off-duty police officer, of violent crimes in
aid of racketeering activity in violation of 18 U.S.C. § 1959 (VICAR) by committing
kidnapping and murder under Virginia law, as well as witness tampering by means of
murder in violation of 18 U.S.C. § 1512(a). The capital defendants were sentenced to serve
terms of life imprisonment. Halisi and Stokes additionally were convicted of obstruction
of justice in violation of 18 U.S.C. § 1512(c)(1). 1
On appeal, the defendants raise several challenges concerning their trial and
sentences. Upon our review of these arguments, we vacate in part with respect to the capital
defendants’ convictions that are predicated on commission of kidnapping under Virginia
1
The other crimes of conviction include Hobbs Act robberies in violation of 18
U.S.C. § 1951(a), VICAR offenses in violation of 18 U.S.C. § 1959, and various
convictions for the use or carry of a firearm during and in relation to a violent crime in
violation of 18 U.S.C. § 924(c).
4
law. Accordingly, we also remand the capital defendants’ convictions for resentencing.
We affirm the balance of the district court’s judgments.
I.
The Bloods is a nationwide street gang. 2 Groups of Bloods are organized into “sets”
or smaller, individual groups of Bloods. One of these sets, DNGS, was founded by Halisi,
Stokes, and Kweli in 2013 during their incarceration for crimes unrelated to the present
case.
DNGS operates through a hierarchical structure. Halisi served as “high OG” or
“Double OG,” DNGS’s leader. Stokes was second in command as “low [OG].” Kweli
also held a leadership role with the rank of “OG,” “Big Homey,” or a “Low 020.” Another
DNGS leader was responsible for operations conducted by incarcerated DNGS members.
These four individuals composed DNGS’s “Roundtable,” or leadership council. Reporting
to the council were members organized by rank, including sergeant, lieutenant, and major.
New DNGS members held the title of “soldier.”
Upon gaining membership into the gang, members were given notebooks to study
that included the rules and the history of the Bloods gang and the DNGS set. Gang
members communicated using certain codes and phrases in an effort to ensure that their
communications remained incomprehensible to law enforcement authorities and others.
2
We set forth the facts in the light most favorable to the government, the prevailing
party at trial. Evans v. United States, 504 U.S. 255, 257 (1996).
5
Members outwardly reflected their association with the Bloods and DNGS by wearing red
clothing items, including red bandanas, and by obtaining tattoos reflecting gang insignia.
DNGS financed itself through the proceeds of various illegal activities undertaken
by members, including armed robberies, home invasions, and burglaries. Members were
expected to “put in work” to advance their rank in the gang, that is, to commit crimes in
order to show their commitment and loyalty. If a member refused to “put in work,” that
member likely would have been “violated,” or beaten.
Both while imprisoned and after their release, Stokes, Kweli, and Halisi began
recruiting new members to the newly formed DNGS set, including Shantai, Mersadies, and
Mathis. As the gang’s membership grew, DNGS members “put in work” committing a
series of crimes from late 2013 into early 2014. This spree of illegal activities included a
number of armed robberies of convenience stores, home invasions, burglaries, and other
crimes committed in central Virginia.
On the night of January 31, 2014, the capital defendants attacked Kevin Quick
(Quick), an off-duty reserve captain with the Waynesboro, Virginia, Police Department, as
he was departing his vehicle. The four defendants compelled Quick back into his vehicle
at gunpoint, drove him to a nearby ATM, and forced him to withdraw money from his
account. After learning that Quick was a police officer, and realizing that Quick had
“already seen their face[s],” the capital defendants decided that “it was too late . . . to let
[Quick] go.” They drove Quick to a remote area off the main roadway, removed Quick
6
from the car, and fired a single shot into Quick’s head, killing him and leaving his body
behind. 3
The next day, the capital defendants met with Halisi and Stokes in Manassas,
Virginia. The defendants rented two hotel rooms to host a “B-House,” or a meeting of
DNGS members. Throughout that day, the defendants and other DNGS members
discussed potential drug trafficking plans and engaged with other drug dealers in
transactions involving the distribution of quantities of drugs, including crack cocaine.
The capital defendants left the hotel the next morning and drove in Quick’s vehicle
to Front Royal, Virginia. Concerned that the vehicle could link them to the murder, the
capital defendants bought bleach, rubber gloves, and a jug to hold gasoline for setting the
vehicle on fire. Leaving Kweli behind, Mathis, Shantai, and Mersadies drove the vehicle
to a friend’s house where they cleaned the vehicle with bleach.
Later that day, Mathis and Mersadies committed a robbery. During the robbery,
Mathis fired one shot from his pistol. Investigators later recovered a bullet and a cartridge
from the scene of this robbery and matched these items through forensic testing to the
weapon used in Quick’s murder and a previous robbery.
Mathis and Mersadies quickly left the scene of the robbery in Quick’s vehicle,
which malfunctioned shortly thereafter. They pushed the disabled vehicle to a nearby
driveway and doused the vehicle with additional bleach. After receiving a call from
Mersadies asking for help, Halisi and Stokes decided that Stokes would drive to meet
3
The record does not show which of the capital defendants fired the fatal shot.
7
Mersadies and Mathis, as well as Shantai, who had reunited with Mersadies and Mathis.
Once Stokes reached the group, Mathis and Shantai told him that Quick’s vehicle needed
to be destroyed, but Stokes stated that they would “find a way to get rid of it the next day.”
Stokes and Halisi later obtained a hotel room in which Mersadies, Mathis, and
Shantai could “hide out.” 4 As Quick’s disappearance became publicized, Mersadies,
Mathis, and Shantai discussed absconding to Montana to avoid being arrested. Mersadies
informed Kweli of these discussions through frequent text messages.
While Kweli was attempting to have Quick’s vehicle destroyed, law enforcement
officers located the abandoned vehicle. Evidence technicians recovered the following
evidence from the vehicle: Kweli’s fingerprint on Quick’s driver’s license, which was
found in Quick’s wallet inside the vehicle; fingerprints belonging to Mathis, Shantai, and
Mersadies on the vehicle or on items within the vehicle; Mersadies’ DNA on a piece of
chewing gum left in the vehicle’s ashtray; and Mathis’ DNA on rubber gloves left in the
vehicle.
Once news media reported that Quick’s vehicle had been recovered, the defendants
planned their escape to Montana and destroyed other evidence related to their crimes.
Halisi ordered Leslie Casterlow (Casterlow), who frequently acted as a drug courier for
DNGS, to “get rid of” Quick’s ATM card. Kweli ordered the other defendants to delete
any incriminating text messages. Also, Shantai and one other DNGS member
disassembled the gun used to kill Quick and placed the gun components in a pillowcase.
4
At this time, the defendants were spread out over various locations in Northern
Virginia.
8
A day after Quick’s vehicle was recovered, Mathis, Shantai, and Mersadies were
arrested at the hotel. After hearing news of the arrest, Halisi had his girlfriend destroy both
his and Casterlow’s phones. Casterlow, who still had possession of the murder weapon
parts, hid those items behind a dumpster at their hotel.
During this time, Stokes was traveling to Washington, D.C. and Maryland to
purchase narcotics with an associate, Jamar Rice (Rice), who later became a government
witness. After receiving information from an unidentified caller that law enforcement had
raided the hotel 5 to which Stokes was returning after his trip with Rice, Stokes told Rice
that his “homies” had carjacked and killed a police officer, and had left his body in the
woods.
Stokes returned to Virginia to pick up Halisi, Halisi’s girlfriend, and Casterlow.
Stokes told Casterlow to retrieve the murder weapon components from behind the
dumpster and to drive the group to a nearby interstate highway. As Casterlow drove along
the highway, Stokes threw the murder weapon parts over the wall bordering the road.
Thereafter, Halisi, Stokes, and Casterlow were arrested at the hotel. Law enforcement
officers later recovered the weapon parts with Casterlow’s assistance.
The defendants were charged in a 36-count indictment with conspiring to participate
in a racketeering enterprise that included the commission of assaults, robberies, burglaries,
kidnapping, carjacking, murder, drug trafficking, and obstruction of justice. After the jury
was sworn during the first trial, the district court was informed that Kweli had removed
5
During this raid, law enforcement officers arrested Mathis, Mersadies, and Shantai.
9
from the courtroom a jury list containing identifying information about the jury panel
members and their families. The district court thereafter granted the defendants’ motion
for a mistrial.
A second trial was held in the Roanoke Division of the Western District of Virginia
following a request by some of the defendants to change venue. The district court also
granted the government’s request to empanel an anonymous jury. At the close of the
second trial, a jury found the defendants guilty on all counts. The district court later
sentenced the capital defendants each to serve a term of life imprisonment. Halisi and
Stokes received sentences of 144 and 160 months’ imprisonment, respectively. Several
other sentences were imposed on the various defendants. This appeal followed.
II.
A.
The defendants first argue that the district court committed reversible error in
deciding to empanel an anonymous jury. According to the defendants, there was no
evidence supporting the district court’s finding that the defendants had the capacity to harm
or to intimidate the jurors.
We review a district court’s decision to empanel an anonymous jury for abuse of
discretion. United States v. Dinkins, 691 F.3d 358, 371 (4th Cir. 2012). In a capital case,
a district court may empanel an anonymous jury only after determining “by a
preponderance of the evidence that providing the [juror] list . . . may jeopardize the life or
safety of any person.” Id. at 372 (citing 18 U.S.C. § 3432). We choose to apply this strict
10
standard to both the capital defendants and the non-capital defendants, because the test is
satisfied for both groups.
A district court must base its decision to empanel an anonymous jury on evidence
in the record, rather than solely on the allegations in the indictment. Id. at 373. Use of an
anonymous jury is appropriate “only in rare circumstances when two conditions are met:
(1) there is strong reason to conclude that the jury needs protection from interference or
harm, or that the integrity of the jury’s function will be compromised absent anonymity;
and (2) reasonable safeguards have been adopted to minimize the risk that the rights of the
accused will be infringed.” Id. at 372 (citations omitted).
To determine whether there are “strong reason[s]” for empaneling an anonymous
jury, we consider five factors:
(1) the defendant’s involvement in organized crime, (2) the defendant’s
participation in a group with the capacity to harm jurors, (3) the defendant’s
past attempts to interfere with the judicial process, (4) the potential that, if
convicted, the defendant will suffer a lengthy incarceration and substantial
monetary penalties, and (5) extensive publicity that could enhance the
possibility that jurors’ names would become public and expose them to
intimidation or harassment.
Id. at 373 (citing United States v. Ross, 33 F.3d 1507, 1520 (11th Cir. 1994)). These factors
are not exhaustive but are meant to provide guidance in the district court’s fact-specific
inquiry. Id.
In the present case, during the first trial, the district court raised the question whether
use of an anonymous jury would be appropriate. When the defendants stated their
opposition, the court took no further action. However, as noted above, the court later
received information that Kweli had removed the jury panel list containing the members’
11
personal information and had kept the list overnight in the jail. After the court informed
the jury members that the jury list had been retained by a defendant overnight, some of the
defendants moved for a mistrial, which the court granted.
In view of these events, the government filed a motion at the beginning of the second
trial requesting an anonymous jury. The district court granted the government’s motion.
Applying the standards outlined in Dinkins and reviewing the district court’s
reasoning, we conclude for several reasons that the district court did not abuse its discretion
in having the case heard by an anonymous jury. First, the indictment alleged that the
defendants were members of a violent street gang and were involved in a number of violent
criminal offenses, including witness tampering by murder. The record contained sworn
statements by various cooperating witnesses and DNGS members corroborating these
allegations. This evidence strongly suggested that the defendants had associates who were
not incarcerated and could intimidate or harm the jurors. See Ross, 33 F.3d at 1520.
Second, FBI special agent Scott Cullins expressed to the court concerns about juror
safety given the gang’s “history of not only retribution, but also preventative actions.”
Moreover, Deputy United States Marshal Mark Haley informed the court that at least two
defendants, Kweli and Halisi, had continued their DNGS recruitment efforts from jail while
awaiting trial. The circumstances leading to the mistrial thus more than justified the court’s
concern for juror safety. And third, if convicted, several of the defendants faced lengthy
incarceration and substantial penalties that may have induced them to intimidate the jury
in an attempt to influence the outcome of the trial. See id. at 1520–21.
12
We also observe that the district court adopted reasonable safeguards to minimize
the risk that the defendants’ constitutional rights would be infringed by the use of an
anonymous jury. Dinkins, 691 F.3d at 378. The court provided the venire members with
a neutral, non-prejudicial explanation of its decision that minimized the danger of prejudice
to the defendants. See United States v. Hager, 721 F.3d 167, 188 (4th Cir. 2013). And the
court’s decision did not interfere with the defendants’ ability to conduct a thorough voir
dire examination. Counsel were given full access to all juror information, and the
defendants were permitted to review redacted juror questionnaires. Accordingly, upon our
consideration of all the facts and circumstances before the district court, we hold that the
court’s decision to empanel an anonymous jury was supported by a preponderance of the
evidence and, thus, was not an abuse of discretion.
B.
Before the jury heard evidence in the case, the court considered pretrial motions
seeking the admission of a number of inculpatory co-conspirator statements. The court
ultimately overruled the defendants’ objections and received the statements into evidence
during the trial. The defendants argue that the district court erred in admitting three of
these statements, because they were not made in furtherance of the charged RICO
conspiracy, and their admission violated the defendants’ rights under the Confrontation
Clause as detailed in Crawford v. Washington, 541 U.S. 36 (2004). We disagree with the
defendants’ arguments.
1.
13
We review the district court’s decision to admit co-conspirator statements for abuse
of discretion. United States v. Graham, 711 F.3d 445, 453 (4th Cir. 2013). To introduce
a co-conspirator’s statements under Federal Rule of Evidence 801(d)(2)(E), the
government was required to show by a preponderance of the evidence that (1) a conspiracy
existed, (2) the conspiracy included both the declarants and the defendants against whom
the statements were offered, and (3) the statements were made during the course of and in
furtherance of the conspiracy. Bourjaily v. United States, 483 U.S. 171, 175 (1987).
The government proffered that it would establish that the statements were made
during and in relation to the broader DNGS racketeering conspiracy, which included
Quick’s murder and the ensuing actions to avoid detection and arrest. 6 Shantai made the
first challenged statement the morning after Quick’s murder, giving Anthony White
(White), another DNGS member, a detailed account of the kidnapping and murder. This
statement included the fact that the capital defendants killed Quick, because “they found
out he was a cop.” Both White and Shantai were members of the conspiracy. Although
White had not participated in Quick’s murder, the statement provided information to White
on the status of the DNGS criminal enterprise, of which he was a member. See United
States v. Mandell, 752 F.3d 544, 552 (2d Cir. 2014) (noting that statements made between
co-conspirators to “inform each other as to the progress or status of the conspiracy” are
6
We find no merit in the defendants’ argument that Quick’s kidnapping and murder
and the later cover-up of those crimes were not part of the DNGS racketeering conspiracy.
As noted, the government’s proffer alleged that Quick’s murder was one of many
racketeering acts done on behalf of the broader DNGS conspiracy. And our review of the
record evidence, discussed more fully below in Section II.E., leads us to conclude that
Quick’s kidnapping and murder were part of the larger-scale DNGS conspiracy.
14
statements made in furtherance of that conspiracy). Accordingly, Shantai’s statement to
White was admissible as a statement of a co-conspirator made “in furtherance of the
conspiracy.”
Kweli made the second challenged statement while he and Halisi were arranging for
someone to destroy Quick’s vehicle. Kweli called Shiquan Jackson (Jackson), a DNGS
member, to inform him of the situation. Kweli told Jackson that “[Kweli] just did
something bad,” and that he and the other capital defendants “just peter-rolled [i.e. killed]
a cop” and had to “lay low.” During this conversation, Kweli asked Jackson and Jackson’s
brother, Devante Jackson, also a DNGS member, to contact Halisi, find the vehicle, and
quickly dispose of it. Again, all parties to this statement were members of the conspiracy,
and Kweli’s comments to Jackson were made in furtherance of the conspiracy. Not only
was Kweli providing Jackson information regarding the status of the conspiracy, but he
also sought to “induce a coconspirator’s assistance” to destroy evidence for the purpose of
evading detection and arrest. Id. Thus, because Kweli’s statement to his fellow DNGS
member was intended to “prolong the unlawful activities” of the DNGS enterprise, United
States v. Altomare, 625 F.2d 5, 8 n.9 (4th Cir. 1980), this statement was admissible under
Rule 801(d)(2)(E).
The third challenged statement involves comments Mathis made to his girlfriend,
Dierra Lloyd (Lloyd), who was not a DNGS member. After Quick’s murder, Mathis
confessed to Lloyd that he and the other capital defendants “killed a cop.” Mathis also
15
asked Lloyd if she “knew a place where [he] could get rid of [Quick’s vehicle].” 7 Although
this statement was not made to a member of the DNGS enterprise, we have recognized that
“even casual relationships to the conspiracy” will satisfy the nexus requirement of Rule
801(d)(2)(E). United States v. Smith, 441 F.3d 254, 262 (4th Cir. 2006) (citation omitted).
This statement also was made “in furtherance of the conspiracy” because Mathis sought
Lloyd’s assistance in disposing of Quick’s vehicle. See Mandell, 752 F.3d at 552 (citation
omitted). Therefore, Mathis’ statement likewise was admissible under Rule 801(d)(2)(E).
2.
We turn to address the defendants’ contention that the admission of the co-
conspirator statements violated their rights under the Confrontation Clause. We review de
novo this question of law. United States v. Lighty, 616 F.3d 321, 376 (4th Cir. 2010).
The Confrontation Clause protects a defendant’s right to cross-examine a declarant
making a “testimonial” statement. Davis v. Washington, 547 U.S. 813, 821 (2006).
Although the Supreme Court has not articulated a precise definition of the term
“testimonial,” the Court has provided concrete examples of testimonial evidence. At a
minimum, such evidence includes testimony given at a preliminary hearing, before a grand
jury, and at a formal trial, as well as statements made during a police interrogation. See
Crawford, 541 U.S. at 68. More recently, the Court has explained that a statement is
testimonial in nature if the statement was made or procured with the “primary purpose” of
7
It is not clear from the trial record whether Lloyd helped Mathis and the other
members destroy the vehicle following Mathis’ request.
16
creating an “out-of-court substitute for trial testimony.” Ohio v. Clark, 135 S. Ct. 2173,
2180 (2015) (quoting Michigan v. Bryant, 562 U.S. 344, 358 (2011)).
We conclude that the challenged co-conspirator statements were not testimonial in
nature. The defendants made the challenged statements to co-conspirators and to Lloyd
about criminal activities related to the DNGS criminal enterprise. Moreover, all the
statements were made in furtherance of that criminal conspiracy and were not intended to
be used as a substitute for trial testimony. Accordingly, the admission of the challenged
statements did not violate the defendants’ rights under the Confrontation Clause. 8 See
United States v. Jordan, 509 F.3d 191, 194, 201 (4th Cir. 2007) (holding that statements
made by declarant and alleged co-conspirator to the declarant’s friend describing events
related to the murder of a drug courier were non-testimonial and, thus, did not violate the
Confrontation Clause).
C.
The defendants next contend that the indictment was defective because it charged
that Quick was prevented from communicating “to a law enforcement officer,” rather than
“to a law enforcement officer . . . of the United States,” as provided in the language of 18
U.S.C. § 1512(a)(1)(C). The district court did not reach the merits of this argument,
determining that the defendants’ motion to dismiss the witness tampering count and related
8
Given that admission of the co-conspirator statements did not violate the
Confrontation Clause, we reject the defendants’ additional claim under Bruton v. United
States, 391 U.S. 123 (1968). United States v. Dargan, 738 F.3d 643, 651 (4th Cir. 2013)
(“Statements that do not implicate the Confrontation Clause, a fortiori, do not implicate
Bruton.”).
17
Section 924(c) count was untimely and that they failed to establish “good cause” to excuse
their untimely filing.
The defendants concede that their motion to dismiss was untimely but argue that
they had good cause for the untimely filing, because some of the defendants’ attorneys
were unaware of the alleged defect in the indictment. The defendants alternatively
maintain that despite their untimely motion, this Court may review the merits of their
argument for plain error, and conclude under that standard that the indictment was
defective. We conclude that the defendants failed to show good cause and that, in any
event, there was no defect in the indictment.
We review the district court’s finding of lack of good cause for abuse of discretion.
United States v. Soto, 794 F.3d 635, 655 (6th Cir. 2015); cf. United States v. Cowley, 814
F.3d 691, 698 (4th Cir. 2016) (reviewing for abuse of discretion the district court’s finding
that defendant did not establish good cause to rebut the presumption of untimeliness under
the Innocence Protection Act). Under Federal Rule of Criminal Procedure 12, a challenge
to a defect in an indictment “must be raised by pretrial motion if the basis for the motion
is then reasonably available and the motion can be determined without a trial on the
merits.” 9 Fed. R. Crim. P. 12(b)(3)(B). If a party fails to meet this deadline, the motion is
9
This version of Rule 12 took effect on December 1, 2014, a few weeks after the
indictment was returned by the grand jury. The defendants do not argue that the prior
version of Rule 12 applies. In any event, we determine that the current version of Rule 12
applies, because this case was pending at the time the Rule took effect and the Rule’s
application is “just and practicable.” See S. Ct. Order Amending Fed. R. Crim. P. at ¶ 2
(Apr. 25, 2014) (providing that the new rules “shall govern in all proceedings in criminal
cases thereafter commenced and, insofar as just and practicable, all proceedings then
pending”).
18
untimely. Id. 12(c)(3). A district court “may consider” an untimely motion only if the
moving party “shows good cause” for its delayed action. Id.
We conclude that the district court did not abuse its discretion in finding that the
motion was untimely, and that the defendants failed to show good cause for their delayed
challenge. Mathis’ counsel informed the court that he had “held onto” the perceived defect
in the indictment “for quite [awhile]” because of his “hope that [he] would get into serious
plea negotiations with the government, and that if [he] did get in serious plea negotiations
with the government, that [he] could get some mileage out of it.” Counsel further admitted
that he “could have filed [the motion to dismiss] right before trial, [he] could have filed it
before the jury was picked, [he] could have filed it any of those times, and [he] didn’t.”
A party’s affirmative decision to delay filing a motion in an attempt to gain a
strategic advantage at trial does not amount to good cause for purposes of Rule 12. See
United States v. Ramirez, 324 F.3d 1225, 1228 (11th Cir. 2003) (holding that defense tactic
of “sandbagging” is not good cause for failure to file motion to dismiss (citation omitted));
see also United States v. Oldfield, 859 F.2d 392, 397 (6th Cir. 1988) (noting that one
purpose of Rule 12 is to “restrict[] the defense tactic of ‘sandbagging’” (citation omitted)).
Accordingly, we affirm the district court’s denial of the defendants’ untimely motion to
dismiss the witness tampering charge and the related Section 924(c) counts of the
indictment. 10
10
We are not persuaded by the defendants’ argument that there was good cause for
the untimely motion because some attorneys for the other defendants were unaware of the
alleged defect. See United States v. Ruhe, 191 F.3d 376, 386–87 (4th Cir. 1999) (holding
(Continued)
19
More fundamentally, there was no defect, plain or otherwise, in the indictment.
Generally, an indictment is sufficient if it “(1) indicate[s] the elements of the offense and
fairly inform[s] the defendant of the exact charges and (2) enable[s] the defendant to plead
double jeopardy in subsequent prosecutions for the same offense.” United States v.
Williams, 152 F.3d 294, 299 (4th Cir. 1998) (citation omitted). The fact that the language
at issue in the indictment did not track the precise language of the statute did not constitute
error under these circumstances. Id. The indictment detailed the factual basis for the
witness tampering charge and cited to the correct statute, fairly apprising the defendants of
the crime charged and its required elements. Id. Therefore, we reject the defendants’ claim
of error.
D.
The defendants next argue that the district court violated their Fifth Amendment
rights by amending the indictment through the court’s instructions to the jury. According
to the defendants, although the indictment alleged that the Bloods gang was the criminal
enterprise underlying the RICO charge, the court instead instructed the jury that DNGS
was the alleged enterprise.
We do not address the merits of this argument because the defendants invited the
claimed error. United States v. Herrera, 23 F.3d 74, 75 (4th Cir. 1994) (“[A] court can not
be asked by counsel to take a step in a case and later be convicted of error, because it has
complied with such request.” (quoting Shields v. United States, 273 U.S. 583, 586 (1927))).
that there was no good cause to raise an untimely suppression motion when the defendant
could have with due diligence discovered the information necessary to raise the issue).
20
At the charging conference near the end of the trial, the defendants argued that the jury
should be instructed that the alleged enterprise was only the Bloods, and did not include
DNGS. The government noted that the indictment referred to the Bloods and DNGS
interchangeably and ultimately offered, with the district court’s approval, that the exact
language contained in the indictment be used in the jury instructions. Nonetheless, the
defendants declined this proposed course of action and requested that the instructions
naming only DNGS be used. Thus, even if the court’s instruction was improper, the
defendants could have cured any such error but did not. 11 See United States v. Lespier, 725
F.3d 437, 445–46, 449–51 (4th Cir. 2013) (holding that the invited error doctrine applies
when the defendant opposed provision of a particular instruction and then argued on appeal
that it was error for instruction not to have been given).
E.
The defendants challenge the sufficiency of the evidence to convict them of the
RICO conspiracy under 18 U.S.C. § 1962(d). 12 The capital defendants also argue that their
federal witness tampering convictions under 18 U.S.C. § 1512(a)(1)(C) are not supported
11
The defendants do not argue that an exception to the invited error doctrine is
applicable in this case. See United States v. Lespier, 725 F.3d 437, 450–51 (4th Cir. 2013).
12
The defendants also challenge the sufficiency of the evidence underlying their
numerous VICAR convictions under 18 U.S.C. § 1959(a)(3), and violations of 18 U.S.C.
§ 924(c), based on the underlying VICAR offenses. VICAR imposes criminal liability on
an individual who commits a crime of violence “for the purpose of gaining entrance to or
maintaining or increasing position in an enterprise engaged in racketeering activity.” 18
U.S.C. § 1959(a). As Section 1959(a) incorporates the same definition of “enterprise” as
RICO, 18 U.S.C. § 1959(b), our analysis of the defendants’ challenge to the RICO
conspiracy convictions applies equally to the VICAR and related Section 924(c)
convictions.
21
by the evidence. Additionally, Halisi and Stokes challenge the sufficiency of the evidence
to support their convictions for obstruction of justice under 18 U.S.C. § 1512(c)(1).
We will sustain a jury’s verdict when there is substantial evidence, construed in the
light most favorable to the government, supporting the verdict. United States v. Hackley,
662 F.3d 671, 678 (4th Cir. 2011). We address the defendants’ arguments in turn, setting
forth additional facts as necessary to decide each argument.
1.
The defendants each were convicted of conspiracy to participate in a racketeering
enterprise in violation of 18 U.S.C. § 1962(d). To obtain a conviction under this statute,
the government was required to prove “that an enterprise affecting interstate commerce
existed; that each defendant knowingly and intentionally agreed with another person to
conduct or participate in the affairs of the enterprise; and . . . that each defendant knowingly
and willfully agreed that he or some other member of the conspiracy would commit at least
two racketeering acts.” United States v. Mouzone, 687 F.3d 207, 218 (4th Cir. 2012)
(citations and internal quotation marks omitted).
a.
The defendants argue that: (1) DNGS was not an “enterprise,” as the term is used in
the RICO statute; and (2) their crimes were “unplanned, disorganized, and spontaneous”
and, thus, did not constitute a pattern of racketeering activity. We find no merit in either
argument.
The RICO statute defines the term “enterprise” as “any . . . group of individuals
associated in fact although not a legal entity.” 18 U.S.C. § 1961(4). A RICO enterprise
22
“is proved by evidence of an ongoing organization, formal or informal, and by evidence
that the various associates function[ed] as a continuing unit.” United States v. Turkette,
452 U.S. 576, 583 (1981). The Supreme Court has explained that an “association-in-fact
enterprise” must have “at least three structural features: a purpose, relationships among
those associated with the enterprise, and longevity sufficient to permit these associates to
pursue the enterprise’s purpose.” Boyle v. United States, 556 U.S. 938, 946 (2009).
Here, the government presented sufficient evidence from which a reasonable jury
could conclude that DNGS was an “enterprise,” within the meaning of the RICO statute.
DNGS members received tattoos and wore red clothing signifying their membership in the
gang, congregated regularly at membership meetings, and had a set of governing rules that
members were expected to follow. Members shared a common function and purpose,
namely, to enrich members of the gang by “putting in work” through the commission of
violent crimes and selling drugs. DNGS members also agreed to provide, and did provide,
protection for one another. Although an “enterprise” “need not have a hierarchical
structure or chain of command,” id. at 948, the presence of such organizational features
provides additional evidence of a functioning “enterprise.” And here, the government’s
evidence established that DNGS had a clearly delineated leadership structure.
Although the RICO statute does not define the phrase “pattern of racketeering
activity,” see 18 U.S.C. § 1962, the statute specifies that proof of a “pattern of racketeering
activity” requires evidence of “at least two acts of racketeering activity” committed within
a ten-year period, 18 U.S.C. § 1961(5). The Supreme Court further has explained that to
establish a pattern of racketeering activity, the racketeering predicate acts must be related
23
to each other (the “relatedness prong”), and must amount to, or pose a threat of, continued
criminal activity (the “continuity prong”). H.J. Inc. v. N.W. Bell Tel. Co., 492 U.S. 229,
239 (1989) (“It is this factor of continuity plus relationship which combines to produce a
pattern.” (citation omitted)).
At issue here is the relatedness prong of the pattern analysis. 13 Racketeering acts
are related if they “have the same or similar purposes, results, participants, victims, or
methods of commission, or otherwise are interrelated by distinguishing characteristics and
are not isolated events.” Id. at 240 (citation omitted). In making this determination, we
employ the “commonsense, everyday understanding” of the statutory language. Id. at 241.
We conclude that the government sufficiently established a “pattern of racketeering
activity.” The government introduced evidence of twelve racketeering acts leading up to
Quick’s kidnapping and murder. Various combinations of DNGS members committed
these crimes together. Those crimes shared the common purpose of enriching DNGS
13
While the defendants have not, apart from a single conclusory statement, raised a
continuity argument, we determine that the continuity prong is satisfied here. H.J. Inc.,
492 U.S. at 241–42 (holding that the continuity prong can be met by showing that related
predicate offenses continued over a substantial period of time or posed a threat of
continuing activity). Although the predicate acts established at trial were committed over
the span of five months, the racketeering offenses were part of an ongoing criminal
enterprise and were committed to enrich DNGS members and to facilitate future criminal
acts. See id. at 242–43 (noting that “the threat of continuity is sufficiently established
where the predicates can be attributed to a defendant operating as part of a long-term
association that exists for criminal purposes”). DNGS also worked to protect its members
from apprehension by law enforcement authorities. See United States v. Aulicino, 44 F.3d
1102, 1111 (2d Cir. 1995) (holding that “in cases where the acts of the defendant or the
enterprise were inherently unlawful, such as murder or obstruction of justice, and were in
pursuit of inherently unlawful goals . . . courts generally have concluded that the requisite
threat of continuity was adequately established”).
24
members, bolstering the gang’s reputation for violence, or evading law enforcement
authorities. In committing these crimes, the defendants employed firearms, threats of
physical force, and actual physical force. The jury could conclude, based on this
evidence, that the defendants had engaged in a “pattern of racketeering activity.”
b.
Halisi and Stokes separately argue that the government failed to prove that either of
them agreed to the commission of at least two of the charged racketeering acts. The
government offered evidence of three categories of racketeering acts: drug trafficking,
obstruction of justice, and robbery, in violation of state and federal law. 14 Although Halisi
and Stokes do not dispute that they conspired to distribute narcotics, they argue that these
activities were not related to DNGS and, thus, were not part of the RICO conspiracy. Halisi
and Stokes also claim that their acts of obstruction did not constitute racketeering acts,
because those acts occurred after the completion of the RICO conspiracy. We disagree
with these arguments.
“[A] defendant can conspire to violate RICO and violate [Section] 1962(d) without
himself committing or agreeing to commit the two or more acts of racketeering activity.”
Mouzone, 687 F.3d at 218 (internal brackets and quotation marks omitted) (citing Salinas
v. United States, 522 U.S. 52, 65 (1997)). He need only “agree to pursue the same criminal
objective” as that of the enterprise. Salinas, 522 U.S. at 63–64. This agreement is apparent
from Halisi and Stokes’ role within DNGS. Both men were the enterprise’s founders and
leaders. Both defendants had a central role in directing the enterprise, which required its
14
Because we conclude that Halisi and Stokes participated in the racketeering acts
of drug trafficking and obstruction of justice, we need not decide whether there was
sufficient evidence to prove that they also participated in the other racketeering activities
alleged in the indictment, including robbery.
25
members to commit crimes for the gang’s welfare and support. These facts strongly
support the jury’s conclusion that Halisi and Stokes were actively involved in the RICO
conspiracy conducted by DNGS, including the robberies committed by the capital
defendants and others.
Abundant evidence showed that DNGS members distributed controlled substances
and discussed arrangements for expanding their drug distribution networks at DNGS
meetings. Other evidence showed that drug trafficking was done for the benefit of DNGS,
and copies of DNGS-related documents introduced at trial reflected a detailed code used
by DNGS members to disguise their intended language when discussing narcotics. DNGS
members also sought to invest money obtained from robberies and theft into the gang’s
drug distribution network. Thus, the jury could conclude from the evidence that the
distribution of controlled substances was a centerpiece of the DNGS criminal enterprise.
The government also produced substantial evidence that the acts of obstruction
committed by Halisi and Stokes were done during and in furtherance of the conspiracy.
Halisi and Stokes ordered the destruction of, or directly destroyed, evidence related to
Quick’s murder, including Quick’s ATM card, the murder weapon, and the phones
belonging to DNGS members. Halisi and Stokes took these actions not only to “cover up”
the crimes that had been committed, but also to prolong the unlawful activities of the DNGS
enterprise and to protect the DNGS members from being arrested. Accordingly, the jury
could conclude from this evidence that the obstructive acts committed by Halisi and Stokes
constituted acts of racketeering. Altomare, 625 F.2d at 8 n.9 (explaining that defendant’s
attempt to obstruct was “not merely an attempt to cover up a previously completed crime,
26
but was an effort to prolong the unlawful activities of the enterprise in which he and his
co-conspirators were engaged”).
2.
The capital defendants argue that the evidence was insufficient to prove that they
engaged in witness tampering by murder to prevent Quick from reporting a carjacking
offense. In particular, they assert that their witness tampering convictions cannot stand,
because the government failed to prove the underlying crime of carjacking. We find no
merit in this argument.
The federal witness tampering statute prohibits “kill[ing] another person, with intent
to . . . prevent the communication by any person to a law enforcement officer . . . of the
United States” of “information relating to the . . . possible commission of a Federal
offense.” 18 U.S.C. § 1512(a)(1)(C) (emphasis added). Section 1512 does not require that
the government prove the completion of an underlying federal offense to establish witness
tampering. 15 Instead, inclusion of the word “possible” in the statutory language reflects
that a conviction under Section 1512 requires only that a witness was prevented from
communicating to the authorities information about a possible or actual federal offense.
3.
15
For the same reason, we reject the capital defendants’ more specific argument that
the government failed to adduce evidence establishing the federal nexus required by the
carjacking statute. See 18 U.S.C. § 2119 (prohibiting the taking of “a motor vehicle that
has been transported, shipped, or received in interstate or foreign commerce” (emphasis
added)). For the purposes of the witness tampering conviction, the government was not
required to proffer evidence proving the elements of the underlying crime of carjacking,
including the federal nexus requirement.
27
Halisi and Stokes contend that the evidence was insufficient to support their
convictions for obstruction of justice under 18 U.S.C. § 1512(c)(1), which, in relevant part,
prohibits a person from “corruptly . . . alter[ing], destroy[ing], mutilat[ing], or conceal[ing]
a record, document, or other object, or attempt[ing] to do so, with the intent to impair the
object’s integrity or availability for use in an official proceeding.” We consider their
separate arguments in turn.
Halisi argues that, because he only instructed other individuals to destroy evidence
and did not directly destroy any evidence himself, he did not commit the crime of
obstruction of justice. 16 We disagree.
Under the doctrines of vicarious liability and co-conspirator liability, a defendant is
liable for the substantive offenses committed by a co-conspirator when the commission of
the acts is reasonably foreseeable and is done in furtherance of the conspiracy. United
States v. Ashley, 606 F.3d 135, 143 (4th Cir. 2010). The jury properly was instructed on
both these theories of liability. 17 The evidence at trial established that Halisi ordered
Casterlow to destroy Quick’s ATM card, instructed his girlfriend to destroy his and
Casterlow’s phones, and gave Stokes the disassembled murder weapon in order for Stokes
to discard the component parts. Thus, the jury reasonably could determine under a theory
of either vicarious or co-conspirator liability that Halisi was responsible for destroying
16
The indictment alleged that Halisi was involved “in directing the efforts of the
enterprise in the destruction of documents and evidence associated with” Quick’s murder.
17
These theories of liability need not be charged in the indictment. See Ashley, 606
F.3d at 143.
28
evidence by commanding others to do so on his behalf. Accordingly, we affirm his
conviction for obstruction of justice.
Stokes advances a separate challenge to his conviction for obstruction of justice. He
argues that: (1) his conviction is invalid because a federal grand jury had not been convened
to consider the crimes charged at the time that he purportedly obstructed justice; and (2)
the government failed to prove that, at the time of his actions, he contemplated an official
proceeding that was federal in nature. We reject both these arguments, which are
foreclosed by the plain language of Section 1512.
Section 1512(f)(1) provides, in relevant part, that “[f]or the purposes of this section
. . . an official proceeding need not be pending or about to be instituted at the time of the
offense.” And Section 1512(g)(1) provides that “[i]n a prosecution for an offense under
this section, no state of mind need be proved with respect to the circumstance . . . that the
official proceeding . . . is before a judge or court of the United States, a United States
magistrate judge, . . . a Federal grand jury, or a Federal Government agency.”
Despite this plain language, however, Stokes maintains that the Supreme Court’s
decision in Arthur Andersen LLP v. United States, 544 U.S. 696 (2005), clarified that the
government was required to prove that Stokes contemplated a particular and foreseeable
federal grand jury or federal court proceeding. The Supreme Court held in Arthur Andersen
that certain other provisions of the witness tampering statute, Section 1512(b)(2)(A) and
(B), require that the government prove a “nexus” between the defendant’s conduct and a
foreseeable official proceeding. 544 U.S. at 698, 707–08. We will assume, without
deciding, that Section 1512(c)(1) imposed the same burden on the government in the
29
present case, requiring the government to establish a “nexus” between Stokes’ obstructive
action and a foreseeable official proceeding. See United States v. Young, 916 F.3d 368,
386 (4th Cir. 2019) (holding that the “nexus” requirement applies to Section 1512(c)(2)).
The evidence before us easily satisfied such a requirement.
Rice, who was with Stokes days after Quick’s murder, testified that Stokes received
a call that “the fed—the police had kicked in the door to [the DNGS members’ hotel].”
Stokes responded to Rice that the murder weapon was still in Casterlow’s possession, and
that Stokes was “concerned” the gun could be traced “back to the murder” and link him to
the crime. The evidence further established that Stokes later took action to dispose of the
murder weapon. The jury could conclude from this evidence that Stokes thought that his
acts likely would affect a foreseeable official proceeding. See Arthur Anderson, 544 U.S.
at 707.
Nor was the government required to establish that Stokes contemplated an official
proceeding that was federal in nature in order to secure a conviction under Section 1512(c).
As quoted above, the language of Section 1512(g)(1) plainly refutes such a contention. See
United States v. Phillips, 583 F.3d 1261, 1264–65 (10th Cir. 2009) (holding that in a
prosecution under Section 1512(c), “the government need not prove [that] the defendant
knew that the official proceeding at issue was a federal proceeding such as a grand jury
investigation”). Accordingly, we conclude that the evidence was sufficient to support
Stokes’ conviction for obstruction of justice under Section 1512(c)(1).
F.
30
The defendants next challenge a number of their convictions under 18 U.S.C. §
924(c) for use of a firearm during a crime of violence. They argue that the predicate
offenses underlying their Section 924(c) convictions do not qualify as crimes of violence
under the statute’s “force clause,” 18 U.S.C. § 924(c)(3)(A). With respect to the statute’s
“residual clause,” id. § 924(c)(3)(B), the defendants argue that the clause is
unconstitutionally vague in light of the Supreme Court’s decision in Johnson v. United
States, 135 S. Ct. 2551 (2015) (Johnson II).
We review de novo the question whether an offense qualifies as a crime of violence.
See United States v. McNeal, 818 F.3d 141, 151 (4th Cir. 2016). An offense under Section
924(c) arises when a defendant uses or carries a firearm during or in relation to a “crime of
violence.” 18 U.S.C. § 924(c)(1)(A). Subsection (c)(3) defines the term “crime of
violence” as a felony offense that:
(A) has as an element the use, attempted use, or threatened use of physical
force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against
the person or property of another may be used in the course of committing
the offense.
18 U.S.C. § 924(c)(3). We refer to Section 924(c)(3)(A) as the “force clause,” and to Section
924(c)(3)(B) as the “residual clause” or the “924(c) residual clause.” United States v. Fuertes,
805 F.3d 485, 498 (4th Cir. 2015).
The Supreme Court recently agreed with the defendants’ argument that the 924(c)
residual clause is unconstitutionally vague. United States v. Davis, 139 S. Ct. 2319, 2336
(2019). The Court held that like similarly worded residual clauses struck down in Johnson
31
II, 135 S. Ct. at 2557, and Sessions v. Dimaya, 138 S. Ct. 1204, 1223 (2018), the 924(c)
residual clause improperly required the sentencing judge’s “estimation of the degree of risk
posed by a crime’s imagined ‘ordinary case.’” Davis, 139 S. Ct. at 2325-26, 2336. 18 Our
analysis therefore is limited to considering whether the defendants’ prior convictions qualify
as crimes of violence under the force clause.
To determine whether an offense qualifies as a crime of violence under Section
924(c)(3)(A), we apply the categorical approach or the modified categorical approach,
depending on the nature of the offense. Id. The categorical approach focuses “on the
elements of the prior offense rather than the conduct underlying the conviction.” United
States v. Cabrera-Umanzor, 728 F.3d 347, 350 (4th Cir. 2013) (citation omitted). Thus,
we do not inquire “whether the defendant’s conduct could support a conviction for a crime
of violence” but instead inquire “whether the defendant was in fact convicted of a crime
that qualifies as a crime of violence.” Id.
In a “narrow range of cases,” involving statutes that are comprised of “multiple,
alternative versions of the crime,” we apply the modified categorical approach. Descamps
v. United States, 570 U.S. 254, 261–62 (2013) (citing Taylor v. United States, 495 U.S.
575, 602 (1990)). When confronted with such a “divisible” statute, we review certain
underlying documents, including the indictment, “to determine what crime, with what
18
The Supreme Court rejected the government’s argument that unlike the residual
clauses at issue in Johnson II and Dimaya, the 924(c) residual clause permits a case-specific
approach allowing consideration of the defendant’s actual conduct in the predicate crime,
rather than the crime in the “ordinary” sense. Davis, 139 S. Ct. at 2327−33. The Court
reasoned that the statutory language and historical context of the 924(c) residual clause did
not permit a “case-specific reading.” Id.
32
elements,” formed the basis of a defendant’s conviction. Mathis v. United States, 136 S.
Ct. 2243, 2249 (2016) (citations omitted).
With this framework in mind, we turn to consider each predicate offense underlying
the defendants’ Section 924(c) convictions. These predicate offenses are: (1) VICAR in
violation of 18 U.S.C. § 1959 by committing murder in violation of Virginia law, Virginia
Code § 18.2-32; (2) witness tampering by means of murder in violation of 18 U.S.C. §
1512(a); (3) Hobbs Act robbery in violation of 18 U.S.C. § 1951(a); and (4) VICAR by
committing kidnapping in violation of Virginia law, Virginia Code § 18.2-47.
1.
We begin by addressing whether the capital defendants’ Section 924(c) convictions,
which involve (1) commission of VICAR by committing first-degree murder under
Virginia law 19 and (2) federal witness tampering by means of murder under federal law,
qualify as crimes of violence under the force clause. The capital defendants contend that
Virginia’s definition of first-degree murder, 20 prohibited under Virginia Code § 18.2-32,
does not require the use or threatened use of force against another, because a defendant can
violate the statute by using non-violent, indirect means, such as “poison[ing]” a victim.
19
Neither party contests the applicability of the categorical approach to the VICAR-
murder, agreeing that Virginia’s murder statute is indivisible.
20
Virginia Code § 18.2-32 specifies “[a]ll murder other than capital murder and
murder in the first degree is murder of the second degree.” Although the indictment did
not specify whether the VICAR conviction was predicated on a first-degree or second-
degree murder, the district court instructed the jury on first-degree murder. The parties do
not dispute that the capital defendants’ VICAR convictions stem from commission of first-
degree murder under Virginia law.
33
Advancing the same rationale, the capital defendants also assert that federal witness
tampering by murder, under 18 U.S.C. § 1512(a)(1)(C), is not categorically a crime of
violence.
This line of reasoning, however, is foreclosed by the Supreme Court’s decision in
United States v. Castleman, in which the Court held that “physical force is simply force
exerted by and through” human action and that, therefore, a person need not “directly”
touch his victim to exert “physical force.” 572 U.S. 157, 170−71 (2014) (citations and
internal quotation marks omitted). Accordingly, so long as an offender’s use of physical
force, whether direct or indirect, could cause a violent result, the force used categorically
is violent. See id. at 1415; see also In re Irby, 858 F.3d 231, 236, 238 (4th Cir. 2017)
(holding that second-degree retaliatory murder is a crime of violence under Section
924(c)’s force clause and noting that the “distinction . . . between indirect and direct
applications of force . . . no longer remains valid in light of Castleman’s explicit rejection
of such a distinction”) (citations and internal quotation marks omitted).
A conviction for first-degree murder under Virginia law requires the “willful,
deliberate, and premeditated” killing of another. Va. Code § 18.2-32. Murder “requires
the use of force capable of causing physical pain or injury to another person” irrespective
whether that force is exerted directly or indirectly by a defendant. See In re Irby, 858 F.3d
at 236, 238. Therefore, we conclude that the crime of first-degree murder under Virginia
law qualifies categorically as a crime of violence under the force clause, and we affirm the
capital defendants’ Section 924(c) convictions that are based on the commission of this
Virginia offense.
34
Likewise, because federal witness tampering by murder also requires the unlawful
killing of another, which may be accomplished by force exerted either directly or indirectly,
we find no merit in the capital defendants’ challenge to their federal witness tampering
convictions under 18 U.S.C. § 1512(a)(1)(C). 21 See In re Irby, 858 F.3d at 236.
Accordingly, we affirm the Section 924(c) convictions predicated on the capital
defendants’ convictions for federal witness tampering by murder, in violation of Section
1512(a)(1)(C).
2.
We next consider the defendants’ argument that their Section 924(c) convictions
based on Hobbs Act robbery do not qualify as crimes of violence. 22 The defendants argue
that because Hobbs Act robbery can be committed by placing a victim in fear of injury, the
offense does not necessarily include as an element the “use, attempted use, or threatened
21
Because this offense can be committed in various ways, the statute is divisible.
See Descamps, 570 U.S. at 262. However, we need not apply the modified categorical
approach here, because the parties agree and the record establishes that the capital
defendants were convicted of witness tampering by means of murder under Section
1512(a)(1)(C). See United States v. Carthorne, 726 F.3d 503, 512 (4th Cir. 2013).
22
The defendants convicted of Hobbs Act robbery and the related Section 924(c)
charge are Shantai, Mersadies, and Mathis.
35
use of force,” as required by the force clause. The defendants also contend that because
Hobbs Act robbery may be accomplished by threatening another with injury to intangible
property, such as shares of stock in a corporation, Hobbs Act robbery does not qualify as a
crime of violence under the force clause. We disagree with both arguments. 23
The Hobbs Act penalizes a person who “in any way or degree obstructs, delays, or
affects commerce . . . by robbery or extortion or attempts or conspires so to do, or commits
or threatens physical violence to any person or property in furtherance of a plan or purpose
to do anything in violation of this section.” 18 U.S.C. § 1951. “Robbery” is defined, in
relevant part, as the taking of personal property from another “by means of actual or
threatened force, or violence, or fear of injury, immediate or future, to his person or
property.” Id. § 1951(b)(1) (emphasis added).
The question whether Hobbs Act robbery, when committed by means of causing
fear of injury, qualifies as a crime of violence is guided by our decision in McNeal, 818
F.3d 141. In McNeal, we held that the crime of federal bank robbery, which may be
committed by “force and violence, or by intimidation,” 18 U.S.C. § 2113(a) (emphasis
added), qualifies as a crime of violence under the force clause. 818 F.3d at 152–53. We
explained that the use of intimidation, as proscribed by the bank robbery statute, necessarily
“involves the threat to use [physical] force.” Id. at 153. Although the bank robbery statute,
23
The Hobbs Act is a divisible statute that prescribes two alternative methods of
violating the Hobbs Act, namely, robbery and extortion. 18 U.S.C. § 1952(b)(1), (2). As
before, however, we need not apply the modified categorical approach here, because the
parties do not dispute and the record supports that the defendants were charged with and
convicted of Hobbs Act robbery. See Carthorne, 726 F.3d at 512.
36
Section 2113, refers to use of “intimidation,” rather than “fear of injury,” we see no material
difference between the two terms for purposes of determining whether a particular type of
robbery qualifies as a crime of violence. Nor are we aware of any case in which a court
has interpreted the phrase “fear of injury” as meaning anything other than intimidation.
We also observe that both Section 924(c) and Hobbs Act robbery reference the use
of force or threatened use of force against “property” generally, without further defining
the term “property.” Compare 18 U.S.C. § 924(c)(3)(A) (defining a “crime of violence”
as having “as an element the use, attempted use, or threatened use of physical force against
. . . property of another”), with 18 U.S.C. § 1951 (defining “robbery” as a taking “by means
of actual or threatened force, or violence, or fear of injury, immediate or future, to his . . .
property”). And neither provision draws any distinction between tangible and intangible
property. Thus, we do not discern any basis in the text of either statutory provision for
creating a distinction between threats of injury to tangible and intangible property for
purposes of defining a crime of violence. Accordingly, we conclude that Hobbs Act
robbery constitutes a crime of violence under the force clause of Section 924(c). 24 See
United States v. Garcia-Ortiz, 904 F.3d 102, 109 (1st Cir. 2018); United States v. Hill, 890
24
The defendants offer two additional arguments in support of their contention that
Hobbs Act robbery is not a crime of violence. The defendants first assert that a threat of
injury does not require the threat of violent force, such as when a perpetrator threatens
another’s property by throwing paint on someone’s house. The defendants also assert that
because Hobbs Act robbery is akin to common law robbery, Hobbs Act robbery does not
contain the required force element. After reviewing these arguments, we conclude that
neither has merit.
37
F.3d 51, 60 (2d Cir. 2018); United States v. Rivera, 847 F.3d 847, 849 (7th Cir. 2017); In
re Fleur, 824 F.3d 1337, 1340–41 (11th Cir. 2016).
3.
Finally, the capital defendants challenge their Section 924(c) convictions predicated
on their VICAR convictions for kidnapping under Virginia law. They argue that because
kidnapping under Virginia law can be committed by deception, the offense is not
categorically a crime of violence under the force clause. See Va. Code § 18.2-47(A). 25 We
agree.
Virginia’s kidnapping statute generally prohibits an individual from seizing or
taking another person “by force, intimidation, or deception” with the intent to deprive that
person of his or her liberty. Va. Code § 18.2-47(A). Although the statute describes various
ways that an individual may commit the act of kidnapping, namely, by force, intimidation,
or deception, these alternatives represent various means of committing the crime, not
alternative elements of the crime. See Fuertes, 805 F.3d at 498 (“[A]lthough § 1591(a)
refers to alternative means of commission, it contains a single, indivisible set of elements,
and the categorical approach applies.”). Accordingly, we conclude that Virginia Code §
18.2-47(A) is indivisible, requiring application of the categorical approach. See id.
25
The capital defendants also assert that kidnapping under Virginia law does not
qualify as a crime of violence under the 924(c) residual clause, because that clause is
unconstitutional in light of the Supreme Court’s holding in Johnson II, 135 S. Ct. 2551.
As we explained above, the Supreme Court recently has concluded that the 924(c) residual
clause is unconstitutionally vague. Davis, 139 S. Ct. at 2336. Accordingly, our
determination explained below, that kidnapping under Virginia law does not qualify as a
crime of violence offense under the force clause, is dispositive.
38
A review of the statute’s language and the decisions by Virginia’s appellate courts
interpreting that language indicates that the offense may be committed in a non-violent
manner through deceptive means. 26 Va. Code § 18.2-47; Jerman v. Dir. of the Dep’t of
Corrs., 593 S.E.2d 255, 259 (Va. 2004) (affirming a kidnapping conviction when the
evidence proved that one of the defendant’s confederates convinced the victim to come
with her under the ruse of selling illegal narcotics when the defendant’s true intent was to
harm the victim); Kent v. Commonwealth, 183 S.E. 177, 177–78 (Va. 1936) (affirming a
conviction for kidnapping committed by fraud and coercion and without the use of force
or restraint). Because Virginia defines kidnapping in a manner that allows for both violent
and nonviolent means of committing the offense, the statute “sweep[s] more broadly” than
the force clause’s requirement that the offense be committed with the use, or attempted or
threatened use, of physical force. See Descamps, 570 U.S. at 261; 18 U.S.C. §
924(c)(3)(A). Thus, we conclude that kidnapping under Virginia law does not qualify
categorically as a crime of violence under the force clause. We therefore vacate the capital
defendants’ Section 924(c) convictions stemming from the commission of VICAR based
on kidnapping under Virginia law.
G.
26
To determine if a state conviction qualifies as a crime of violence, we look to the
language of the statute as well as decisions by the state’s courts. See United States v.
Doctor, 842 F.3d 306, 312 (4th Cir. 2016).
39
Finally, the capital defendants argue that the fines imposed on each of them should
be vacated as substantively unreasonable. 27 We disagree.
We review the substantive reasonableness of any part of a sentence for abuse of
discretion. Gall v. United States, 552 U.S. 38, 51 (2007). After considering the factors
outlined in Sentencing Guidelines Section 5E1.2(d) and concluding that a fine was
warranted, the district court imposed on each defendant a $5,000 fine, a sum well below
the advisory guidelines range. 28 See U.S.S.G. § 5E1.2. The defendants have not offered
any evidence rebutting the presumption of reasonableness that we apply to the district
court’s below-Guidelines imposition of fines. United States v. Perez-Jiminez, 654 F.3d
1136, 1146–47 (10th Cir. 2011). Therefore, we hold that the court did not abuse its
discretion in imposing those fines in this case.
III.
For these reasons, we affirm in part the district court’s judgment, vacate the capital
defendants’ Section 924(c) convictions predicated on their VICAR convictions for
kidnapping under Virginia law, and remand for resentencing of those capital defendants,
namely, Mathis, Shantai, Mersadies, and Kweli.
27
The defendants do not challenge the assessment of their fines as procedurally
unreasonable.
28
Kweli is the only capital defendant whose sentencing transcript was included in
the record before this Court. Because the defendants have not raised an objection to the
completeness of the record, our analysis of the substantive reasonableness of the fines
assessed against each defendant stems from our review of Kweli’s sentencing transcript
only.
40
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
41