United States v. Toliver

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5204
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GARY LYNN TOLIVER, JR., a/k/a BG, a/k/a Lil Gary, a/k/a
Garry Toliver, Jr.,
Defendant - Appellant.
No. 08-5217
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MIKAL MUSTAFA MIX, a/k/a Stash, a/k/a Dirty Boy, a/k/a
Mikail Mix, a/k/a Man Man,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (2:08-cr-00022-JBF-JEB-3; 2:08-cr-00022-JBF-JEB-2)
Argued: May 14, 2010 Decided: July 13, 2010
Before GREGORY, AGEE, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Rebecca Sue Colaw, REBECCA S. COLAW, PC, Suffolk,
Virginia; Lawrence H. Woodward, Jr., SHUTTLEWORTH, RULOFF,
SWAIN, HADDAD & MORECOCK, PC, Virginia Beach, Virginia, for
Appellants. Richard Daniel Cooke, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Dana J.
Boente, United States Attorney, Alexandria, Virginia, William D.
Muhr, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Gary Toliver (“Toliver”) and Mikal Mix (“Mix”) appeal their
convictions for racketeering and various violent crime, gun, and
drug distribution offenses connected to gang activity by the
Bounty Hunter Bloods (“BHB”) in Norfolk, Virginia. On appeal,
they raise, both jointly and individually, a number of claims
concerning their trial. For the reasons that follow, we affirm
both Toliver and Mix’s convictions in their entirety.
I.
This case concerns Toliver’s and Mix’s participation in the
BHB gang in Norfolk, Virginia. The evidence presented at trial
described both the overall structure of the gang and specific
instances of violent conduct or drug and gun distribution
activity involving the defendants.
A.
The BHB was established in Norfolk in the early 1990s by an
Original Gangster of the BHB in New York, Cody. The BHB has a
formal hierarchical command and authority structure with defined
roles. The BHB controlled several neighborhoods of Norfolk, and
each was called a “chapter.” 1 Each chapter was led by a
1
Norview was chapter 1; Coleman Place was chapter 2; Little
Creek was chapter 3; Ballentine was chapter 4; Poplar Hall was
chapter 5, and University Apartments was chapter 7.
3
different BHB member called a general. The general controlled
all BHB activity in his chapter. Each general, in turn, had
other members working underneath him in his chapter called young
gangsters (“YG”) or little homies.
Both Mix and Toliver had prominent roles in the BHB. Mix,
also known as Stash, Man Man, or Dirty Boy, was one of the
founding members of the gang from Mount Vernon, New York and was
the general of the Ocean View area of Norfolk. Toliver, also
known as BG, was the general of Norview. Antonio Fulford, a
codefendant who pleaded guilty and testified for the
prosecution, was the general of Little Creek. Another
cooperating coconspirator, Marlon Reed, was the leader of the
BHB overall, and all of the generals, including Mix and Toliver,
reported to him.
Individuals can become members of the BHB in three ways.
The most common way is to “shoot a 31” whereby the person
looking to join stands in the middle of five BHB members in a
five-pointed star formation. The current members then beat the
inductee for thirty-one seconds. Individuals can also be
blessed in by current members of the gang. Finally, women,
called rubies, can be “sexed in,” by having sexual intercourse
with five members of the gang. Marlon Reed estimated that at
the time he was arrested along with Mix and Toliver, the BHB had
4
between 300 and 400 members, mostly teenagers but with some
members as young as nine.
Members of the gang from all chapters would meet every two
to three months. During these meetings, the generals would
report what was happening in their chapter, violations of gang
rules would be cured by having the offending member shoot a 31,
and members would be encouraged to “represent their flag” by
letting others know they were part of the BHB. Toliver led most
of these larger meetings, and Mix would also participate.
Within each chapter, the members of the BHB made money
through home invasions, robberies, and sales of narcotics.
Additionally, members were expected to “put in work,” to do an
act of violence, such as a robbery or shooting, to represent the
BHB. Rubies often put in work by attracting a robbery victim
and leading him to a group of waiting gang members. If a YG or
little homie refused to put in work, they would be disciplined
by having to shoot a 31 again. If members seriously dishonored
the gang, they could be killed.
The BHB has its own language and lingo that members use
between themselves. For example, members avoid using words that
begin with the letter “C” and instead change it to a “B” because
the letter “C” is associated with the Crips, a rival gang. The
BHB greet each other with the phrase “what’s poppin” or with the
call “blllaat.” Additionally, members are required to learn
5
oaths to be sworn to the gang. Generals would test YGs or
little homies on their knowledge of the gang by walking up to
them and “G Checking” them, asking them a question about gang
protocol, which also served to make sure that someone was not
“false flagging” and pretending to be a member of the gang. The
BHB’s symbol is a five-pointed star. Each point on the star has
a meaning: body, unity, love, lust, and soul. The BHB wear red
as an identifying color and put a red bandana in their right
back pocket. They use hand symbols such as “ck,” meaning Crip
killer, and a five-pointed star. All of these identifying
characteristics serve to brand the gang, both within its
membership and to rival gangs and the public.
B.
In addition to being part of the overall command structure
of the BHB, Toliver and Mix were involved in several violent
incidents perpetrated by BHB members between March 2004 and
November 2007.
1.
On March 5, 2004, a dance for teenagers was held at the VFW
in Ocean View. Many members of the BHB and Crips attended.
Tension between the gang members rose during the dance, so the
attendees were sent outside by the organizers, and the dance
ended. Once outside, a fight started, and a member of the BHB
called Mix and told him to bring guns to the VFW. Mix then
6
drove to the VFW and passed out four or five guns to the BHB
members who were there. They started shooting into the crowd
and one girl, who was uninvolved in the fight, was grazed in the
head, requiring emergency care.
2.
On May 1, 2004, Samuel Oteng and Harold Gladden, two naval
officers, rented a room at the Tides Inn in Norfolk, Virginia so
that they could hold a going away party. Upon checking in, they
noticed some women at the hotel and greeted them. The women,
unbeknownst to the sailors, were members of the BHB. Oteng and
Gladden invited the women to come to the party later that night,
but they never showed. After the party had broken up around
2:00 a.m. and the guests had left, Gladden and Oteng were
confronted by three men carrying guns outside their hotel room.
One of the men grabbed Oteng’s gold chain off his neck and then
attempted to force him into the room. To avoid being trapped in
the room with armed individuals, Oteng offered to let the men
search his car for money, and the men took his keys and drove
the car away. Oteng ran after them to see where the men were
taking the car. As he was doing so, a shot was fired. One of
the female members of the BHB present at the hotel that night
testified that Mix fired the shot and was one of the men who
threatened the sailors that evening.
7
3.
In April 2006, Marlon Reed, the leader of the BHB, heard
that Rich Porter, a drug dealer, accused him of false flagging.
In response, Reed ordered Toliver to get Porter and bring him to
Reed’s house in Coleman Place. Toliver drove to Porter’s house,
showed him a 9mm handgun, and demanded he get in the car.
Toliver then drove Porter to Reed’s house where Reed
interrogated him about the rumors he was spreading. Ultimately,
Reed let Porter go.
4.
In spring 2007, two men broke into Andre Parham’s house and
demanded money from him. Parham was a drug dealer with whom the
BHB did business. The men hit Parham and burned him on his back
with an iron before departing. Later that evening, the men came
back and started pounding on his door. Parham responded by
shooting through the door. On August 20, 2007, Parham was again
the victim of a home invasion. He became unconscious after the
men entered his home and beat him. He was again burned with an
iron and cut on his arm. Marlon Reed testified that Toliver was
present at that home invasion with other members of the BHB and
stole heroin and guns.
5.
In July 2007, Timothy Minter, Jamal Ashe, and James
Robertson, Minter’s cousin, were all spending time together in
8
Norfolk where Minter and Ashe were stationed with the Navy. One
night, after dinner, they met two women in front of the pizza
parlor where they ate. The women did not have a car, so they
offered to drive the women home. Robertson asked for their
phone numbers, but the women preferred to take his number from
him.
Later, on July 27th, Robertson received a call from one of
the women inviting him to hang out. He accepted and drove with
Minter and Ashe to 16th Bay in Norfolk where the girls had
indicated they would be. When Robertson, Minter, and Ashe
pulled into the parking lot, they saw seven girls as well as one
man.
After Robertson, Minter, and Ashe exited the car, and began
speaking with the group, ten men ran out from an alley and
approached them holding guns. The men demanded money and
started beating Robertson, Minter, and Ashe and stripped off
their clothes. One of the women began to get nervous because of
the level of beating, and she shouted “police” to get the
attackers to scatter. Ashe and Minter were able to run away to
safety, but Robertson was already unconscious. Minter and Ashe
both suffered significant contusions and abrasions from the
beating. Robertson never regained consciousness and died of
acute brain injury due to blunt force trauma from being beaten
in the head with a shotgun.
9
Through investigation and canvassing after the incident,
the police found the vehicles involved in the robbery and murder
and tracked them to a hotel room. There, they arrested six
suspects, all members of the BHB, including the women who called
Robertson. In interviews with the suspects, the police
determined that Curtis Newby, also known as CK or Crip Killer,
was the individual who had beaten Robertson. Skylar Hayward, a
member of the BHB and one of the girls Robertson met earlier,
stated that Curtis Newby, also a BHB member, told the girls to
call Robertson because he wanted to rob him.
When Marlon Reed saw a report on television about the
murder, he called Mix and told him what had happened. Mix told
him that CK had beaten a man to death with a shotgun that Mix
owned. He said that he was going to take CK to New York to hide
out with Cody in Mount Vernon.
6.
Also on July 27, 2007, Marlon Reed accompanied Toliver and
several other BHB members to Club Reign on Granby Street in
Norfolk. After the club let out, Reed, along with the others,
passed out copies of a CD he had made of rap about the BHB to
patrons leaving the club. When a car occupied by two men
refused to take a CD, the situation escalated, ending when
Antonio Fulford shot both of the occupants of the car as they
attempted to flee, one in the leg, one in the hand. To leave
10
the scene of the shooting, all of the BHB members jumped in
their car with Toliver driving. Responding to reports that a
white truck had fled the scene, a Norfolk police officer
attempted to pull over the car that Toliver was driving.
Instead of stopping, Toliver fled, and the resulting high speed
chase ended when he crashed on an exit ramp.
7.
In October 2007, Gregory Lee, a gun and drug dealer with
whom the BHB did business, had an argument with Toliver after
Toliver shorted Lee $400 on a gun deal. At that time, Lee
called Toliver a young punk. On November 15, 2007, at 9:00
a.m., Lee heard pounding on his door and someone yell “DEA
search warrant.” When he opened the door, two men ran in the
house, pistol whipped him, handcuffed him, duct-taped him to the
toilet, and hit him with a baseball bat. The men also stole
$8,162 in cash from him. The men told Lee “we may be wearing
black, but we are red inside,” which he took to mean that they
were BHB members. They also told Lee that “the young punk sent
us.”
C.
Mix and Toliver were also involved in a wide variety of
drug trafficking activity. Because the instances of such
conduct involved a large number of witnesses and occasions, we
summarize the evidence in bullet form.
11
• 2002 - Angel Hines begins buying cocaine from Mix,
purchasing eighteen ounces from him about every two
weeks for two years.
• 2002 – Joyce Wright observes Mix with a quarter ounce
of cocaine and a gun in his car.
• March 2003 – Marlon Reed was supposed to sell Mix
seven ounces of crack, and Mix wanted to trade for
three guns. Reed would not accept the deal so Mix
paid him $250 for the seven ounces.
• Spring 2004 – Mix gives Marlon Reed $5,500 to buy half
a kilo of cocaine.
• January 2006 – Gregory Lee starts buying heroin from
Toliver and buys an increasing amount from him daily
until November 2007.
• 2006 – Reed supplies Mix with 2.25 ounces of crack
twice a week for several months.
• 2006 – Reed supplies Toliver with nine ounces of
cocaine every two days.
• Mid-2006 – Toliver asks Gregory Lee to purchase
firearms for him, and Lee sells him twenty firearms
total.
• November 2006 – Jamal Ruiz starts buying cocaine from
Toliver and continues to purchase it through August
2007.
• January 2007 – Toliver buys 3.5 grams of heroin from
Lahmel Evans and shows him a handgun while doing so.
• Spring 2007 – Toliver gives Reed $75,000 to purchase
three kilos of cocaine.
• Spring 2007 – Gregory Lee receivs raw heroin from
Toliver and works to put it in gel caps.
• July 4, 2007 – Skylar Hayward buys marijuana from
Toliver and sees him in possession of crack.
12
• October 2007 – Gregory Lee buys a quarter ounce of
crack from Toliver, who carried a gun with him.
D.
In February 2008, Toliver and Mix, along with Marlon Reed,
and Antonio Fulford, were indicted for the above-described
criminal activity. On May 7, 2008, the government filed a
seventy-six count superseding indictment. While Fulford and
Reed chose to plead guilty, Mix and Toliver proceeded to jury
trial, which began on August 18, 2008, and continued for eight
days. After the government had concluded its case-in-chief, it
requested a dismissal of several counts of the indictment. 2 The
remaining counts were sent to the jury, which deliberated for
three days before arriving at a verdict. The jury found Toliver
guilty of all counts for which he was tried. The jury found Mix
guilty of all of the offenses except as to Counts Four
(possession of a firearm in furtherance of a violent crime),
Five (assault with a dangerous weapon in aid of racketeering
activity), Six (assault with a dangerous weapon in aid of
racketeering activity) and Seven (possession of a firearm in
furtherance of a violent crime), which related to the incidents
at the VFW dance and the Tides Inn. At sentencing, Toliver was
2
Counts 23, 24, 30-36, 39-42, 44, 49, 50-53, and 55-57 were
dismissed.
13
sentenced to life plus 2,484 months. Mix was sentenced to life
plus 480 months. This timely appeal followed.
II.
On appeal, Toliver and Mix raise issues concerning joinder,
jury selection, photographic evidence of Toliver’s tattoos, and
sufficiency of the evidence. We address each in turn and find
all of their arguments unavailing.
A.
Toliver first raises the issue of prejudicial joinder. He
argues that he was prejudiced by his joint trial with Mix and
Elizabeth Horne 3 because the allegations against the other
defendants necessarily “spilled over” in the minds of the jury
considering his guilt and influenced their verdict.
Additionally, Toliver argues that the sheer volume of the
evidence, including the murder Mix was charged with, confused
the jury and prejudiced them against him. We find, however,
that no specific trial right of Toliver’s was impaired by the
joinder, and thus the defendants were properly joined.
3
Horne was tried on several specific counts related to the
home invasion of Andre Parham, her brother. She was acquitted
of all charges.
14
1.
The district court’s denial of a motion for severance is
reviewed for abuse of discretion. United States v. Jones, 356
F.3d 529, 535 (4th Cir. 2004). This Court will reverse only if
“the trial court’s decision to deny severance deprives the
defendants of a fair trial and results in a miscarriage of
justice.” United States v. Harris, 498 F.3d 278, 291 (4th Cir.
2007) (citation omitted).
2.
Federal Rule of Criminal Procedure 8 governs joinder of
defendants in the same action. It provides that “the indictment
or information may charge 2 or more defendants if they are
alleged to have participated in the same act or transaction, or
in the same series of acts or transactions, constituting an
offense or offenses.” Fed. R. Crim. P. 8(b). Even if properly
joined in the indictment, the defendants must be tried
separately when the joinder “appears to prejudice a defendant or
the government.” Fed. R. Crim. P. 14. Therefore, if a
defendant moves to sever his trial, he must show the requisite
prejudice. The Supreme Court has held that to show prejudice as
a result of joinder, the defendant must show that “there is a
serious risk that a joint trial would compromise a specific
trial right of one of the defendants, or prevent the jury from
making a reliable judgment about guilt or innocence.” Zafiro v.
15
United States, 506 U.S. 534, 539 (1993) (emphasis added). Thus,
“a defendant is not entitled to severance merely because
separate trials would more likely result in acquittal, or
because the evidence against one defendant is not as strong as
that against the other.” United States v. Strickland, 245 F.3d
368, 384 (4th Cir. 2001) (citation and internal quotation marks
omitted).
3.
This Court has never held that jury confusion requires
severance of defendants properly joined in an indictment. See
United States v. Mandel, 591 F.2d 1347, 1371 (4th Cir. 1979)
(“Severance will not be granted when the claim is based on the
disparity of evidence adduced against individual defendants
without a strong showing of prejudice.”). Indeed, this Court
has enforced the Supreme Court’s decision in Zafiro, that the
defendant must show a specific trial right that would be
infringed by the joinder, and has found no abuse of discretion
when the defendant merely pleads jury confusion between
defendants.
Taking into account how this precedent weighs against his
claim, Toliver intimates that joinder with Mix would violate
Bruton v. United States, 391 U.S. 123, 129-31 (1968), which held
that admission of the confession of a defendant at trial was
prejudicial error when that confession implicated the
16
codefendant. However, Bruton and the Sixth Amendment do not
support such an expansive argument. General concerns about
prejudice when being tried with another defendant who has
committed bad acts does not rise to the level of a Bruton
problem when those acts do not implicate the defendant. Here,
Mix’s connection with the robbery and murder of James Robertson
did nothing to implicate Toliver because he was not mentioned at
all in connection with the incident.
Therefore, because we do not find, and Toliver does not
argue, any specific trial right of his which was impaired by the
joinder, the district court did not abuse its discretion in
denying his motion for severance.
B.
Toliver and Mix jointly raise the second issue on appeal
concerning the dismissal of empanelled jurors. In this case, as
described more fully below, two African-American female jurors
were dismissed after the jury had been empanelled because of
disqualifying conflicts they disclosed after they had been sworn
in. The defendants argue that the district court erred in
denying their motion for a mistrial because they were denied the
use of voir dire by the jurors’ incomplete answers.
Additionally, they argue that striking two jurors at the
beginning of the trial reinforced the “pervasive ambiance of
fear” surrounding the trial and prejudiced them. We hold that
17
the district court properly dismissed the jurors and replaced
them with substitutes that had been empanelled for that specific
purpose.
1.
As the defendants contemporaneously objected to the
dismissal of the two jurors and substitution of the alternates,
the district court’s decision is reviewed for abuse of
discretion. United States v. Hayden, 85 F.3d 153, 156-57 (4th
Cir. 1996). To establish that a new trial is warranted, the
objecting party must establish first that the substitution was
in error, and second that prejudice resulted from the
substitution. United States v. Nelson, 102 F.3d 1344, 1349 (4th
Cir. 1996). To determine prejudice, we have held that the
district court should consider three general factors: (1) the
closeness of the case; (2) the centrality of the issue affected
by the error; and (3) the steps taken by the district court to
mitigate that error. United States v. Callanan, 450 F.2d 145,
151 (4th Cir. 1971).
2.
On the first day of the trial, jury selection began in the
morning and continued until approximately 2:00 p.m., at which
time the jury with two alternates was empanelled and sworn in.
The court then recessed for lunch. One juror, during the lunch
hour, notified the deputy that she recognized Toliver because
18
his uncle attended her church and she went to school with his
father. When questioned by the court, she stated that she had
not said anything earlier because it did not occur to her that
it was the same Toliver, and she could not see him. She was
then dismissed for cause after she indicated that she could not
be fair because she felt “empathy” for the defendant. The
dismissed juror was an African-American woman; her replacement
was a white man.
After the first day of trial was completed and before the
second day began, the court received a note from another female
African-American juror. The juror stated that she found out
from her brother the night before that he was assaulted in New
York by a gang six years earlier, and she could no longer be
impartial because remembering the incident brought up strong
emotions. When questioned, she told the court that she had not
talked to her family about the case, but her relatives figured
out which jury she was on, and her brother called her from New
York and told her about the incident. She also was dismissed
and replaced with a white male juror.
The defendants moved for a mistrial on the basis of the
substitution of the jurors for members of another gender and
race. They also moved for a mistrial on the suspicion of juror
intimidation given the circumstances. The court found that
19
there was no intimidation involved and that substitution was
proper at this stage of the proceedings.
3.
Substitution of jurors at trial is regulated by Federal
Rule of Criminal Procedure 24(c). It provides that alternate
jurors are to “replace any jurors who are unable to perform or
who are disqualified from performing their duties.” Fed. R
Crim. P. 24(c)(1). A court replacing an empanelled juror with
an alternate must have both a legally relevant reason and a
factual basis for doing so. Hayden, 85 F.3d at 157. The court
must also consider reasonable alternatives available to it
instead of dismissing the juror and substituting an alternate,
given the importance attached to keeping the original jury
together if possible. Nelson, 102 F.3d at 1349.
However, this Court has concluded that the “right to have
the selected jury render the verdict is not absolute and is
subject to the inevitable vagaries of the many trial
participants’ complex lives.” Id. at 1350. Thus, both in
Hayden and Nelson, we affirmed a district court’s decision to
dismiss jurors after jeopardy had already attached. In Hayden,
the court dismissed a juror when a government witness, after he
testified, alerted the court that he and the juror knew each
other. Although the jurors had been questioned during voir dire
about whether they knew any of the witnesses, the juror did not
20
recognize the witness’s name because he only knew him by a
nickname. The court dismissed the juror, and the defendant
objected on the grounds that the juror dismissed was the only
African-American on the jury. Hayden, 85 F.3d at 156-57. This
Court held that the dismissal was proper because the juror was
biased, and the district judge explained the dismissal to the
jury. Id.
Additionally, in Nelson, the district court dismissed two
jurors after the trial had begun because they had previously-set
travel plans during the trial. The district court considered
other alternatives, such as letting the jurors deliberate for a
day and then continuing the trial during the period of the
jurors’ vacations, but concluded that it was most important to
have the jury deliberate on consecutive days and not to feel
rushed in their verdict. Nelson, 102 F.3d at 1349. The
defendant objected and argued that because the two jurors who
were dismissed were African-American and were replaced with
white jurors, a heightened standard for replacing jurors should
be employed. We held, however, that “[i]n the absence of any
evidence or allegation that the court acted because of race in
replacing jurors with alternates, we find no basis to conclude
that the court’s discretion should be exercised differently when
it is considering for racially neutral reasons the replacement
of black jurors with white alternates.” Id. at 1350.
21
4.
Despite our precedent in Nelson and Hayden, Toliver and Mix
argue that this case is distinct because the conflict did not
arise after the trial had begun, but rather existed before the
jury was even empanelled. They thus argue that they were denied
voir dire.
However, the district court certainly had legal cause and a
factual basis for dismissing the jurors as required by our
precedent. It is without question that an outright statement by
a juror that he cannot be impartial is a legally relevant reason
for dismissing him. United States v. Capers, 61 F.3d 1100, 1105
(4th Cir. 1995). Further, the facts in this case do not support
a departure from this Court’s precedent which held that the same
level of scrutiny should be applied, no matter the race of the
dismissed juror. Indeed, in Hayden, the juror did not
immediately recognize the name of a witness, so it was only
after the trial had begun that the conflict was apparent. We
held that dismissal of the juror and replacement with a white
alternate was proper when there was a valid basis for removing
the biased juror. Thus, we believe that Hayden controls the
outcome of this case.
Additionally, this case is distinguishable from United
States v. Rucker, 557 F.2d 1046 (4th Cir. 1977), the case relied
upon by the defendants for their voir dire argument. In that
22
case, two jurors did not fully answer a question on their jury
questionnaire as to whether any mental or physical impairment
would prevent them from serving on the jury. The defendant
requested that the court question the jurors on their incomplete
answers, and the judge denied that request. We held that when
presented with a potential question of whether a venireman is
fit to serve on the jury, it is reversible error for the
district court to fail to question the juror, as it denies the
defendant the power of voir dire. Id. at 1047. This case has
little in common with Rucker, however, because voir dire of the
jurors here was complete. Indeed, the jurors were already
qualified in this case and empanelled. Voir dire rights only
exist in the pre-qualification stage of the trial, and the
dismissals here demonstrated no bias by the district court. In
fact the district court had no choice but to dismiss the jurors
here when they stated that they could no longer be impartial.
Finally, it bears mentioning that while the defendants
allege that there was a “pervasive ambiance of fear” surrounding
the trial, there is no evidence in the record as to any
intimidation in the case. 4 Therefore, the district court did not
4
The defendants reference a newspaper article concerning
juror intimidation in the case, but that article is not part of
the record and the district court made no findings about
intimidation.
23
abuse its discretion in denying the defendants’ motion for a
mistrial and properly dismissed the two impartial jurors.
C.
The third issue on appeal is raised by Toliver and concerns
photographic evidence of his tattoos which was admitted for the
purpose of showing that he was a member of the BHB. Toliver
argues that the admission of that evidence violated the Fifth
and Sixth Amendments. We find each of these arguments without
merit.
1.
Evidentiary rulings of the district court are reviewed for
abuse of discretion if the defendant preserves his objection at
trial. United States v. Basham, 561 F.3d 302, 325 (4th Cir.
2009). When a district court commits an error of law, it has
abused its discretion. Id. at 326. If a defendant does not
make a contemporaneous objection, the admission of such evidence
will be reviewed for plain error. This Court will only notice
the error if the defendant can show (1) an error occurred, (2)
the error was plain, (3) the error affected his substantial
rights, and (4) the error “seriously affect[s] the fairness,
integrity, or public reputation of judicial proceedings.”
United States v. Olano, 507 U.S. 725, 736 (1993) (quoting United
States v. Atkinson, 297 U.S. 157, 160 (1936)) (internal
quotation marks omitted).
24
2.
On February 12, 2008, four days after his arrest, Toliver
was required to allow the police to photograph his numerous
tattoos. Those photographs were admitted into evidence, not for
identification purposes, but rather as substantive evidence of
his affiliation with the BHB. In particular, these photographs
showed the following tattoos: the capital letters B.H.B. on the
right side of his neck; the letter B with a five pointed crown
on it on his right shoulder; the word GARRY burned into his
flesh to form a scar; the words “known by many, loved by few,
respected by all” on his leg; the word LOVE on his right arm
with the word LOYALTY on his left; and the word WAR on his right
hand with the word VIEW on his left.
Each of the photographs was authenticated by the officer
who took the pictures, State Police Special Agent Smith, a
member of the drug enforcement unit. The government further
offered Special Agent Smith as an expert, and he was qualified
as such, in the area of the symbols, colors, customs, and
protocols of the BHB. After the picture of each tattoo was
authenticated by Special Agent Smith, the government asked him
what meaning the tattoo had for the BHB. Special Agent Smith
responded, for example, that the LOVE and LOYALTY tattoos on
Toliver’s arms were two of the five prongs of the BHB creed, and
the five pointed crown over the B stood for the five-pointed
25
star that was the symbol of the Bloods. Special Agent Smith’s
analysis of the meaning of each tattoo was based on his
specialized training on the BHB gang.
3.
Toliver’s first argument concerning the photographs of his
tattoos is that compelling him to be photographed violated his
Fifth Amendment privilege against self-incrimination. We,
however, find that Toliver’s tattoos are a physical trait,
similar to his voice or handwriting, and therefore do not
constitute testimony within the meaning of the Fifth Amendment.
The Fifth Amendment provides that no person “shall be
compelled in any criminal case to be a witness against himself.”
U.S. Const. amend. V. In general, the Fifth Amendment protects
the accused from compelled verbal statements, but can also apply
to compelled physical acts which constitute communications. It
is well settled, however, that the protections of the Fifth
Amendment do not apply to physical characteristics such as the
giving of a blood sample, voice sample, or handwriting exemplar.
Pennsylvania v. Muniz, 496 U.S. 582, 595-98 (1990); United
States v. Dionisio, 410 U.S. 1, 7 (1973); Gilbert v. California,
388 U.S. 263, 266-67 (1967). The key distinction as to whether
the Fifth Amendment applies is whether the incriminating
communications, verbal or physical, are testimonial in nature.
United States v. Hubbell, 530 U.S. 27, 34 (2000).
26
Toliver likens this case to the situation in Hubbell where
the Supreme Court held that the mere act of producing documents,
in some cases, may be incriminating. Id. at 36. In that case,
the production itself communicated a “statement[] of fact”; it
proved that the documents existed, were authentic, and were in
the custody of the producer. Id. at 36 (citation and internal
quotation marks omitted). There, the Supreme Court held that
the physical production was a violation of the Fifth Amendment
because the preparation of the produced documents was the only
means through which the government obtained the evidence which
led to the indictment. Id. at 42-43.
This case, however, is more akin to the physical trait
cases. Tattoos which are openly visible on the body are
physical traits, as are voice, appearance, and handwriting. See
United States v. Bay, 762 F.2d 1314, 1315-16 (9th Cir. 1984)
(holding that a defendant need not take the stand to be able to
show the jury the tattoos on his hands which were an openly
visible physical characteristic). Cf. United States v.
Williams, 461 F.3d 441, 446-47 (4th Cir. 2006) (holding that a
demonstration by the defendant that he could not physically wear
the fanny pack as alleged by the police is not testimonial
evidence). Here, except for the GARRY scar tattoo, the location
of which is unknown, it is clear that all of Toliver’s tattoos
were openly visible on his body. Indeed, most of them,
27
including BHB on his neck, WAR and VIEW on his hands, the slogan
on his leg, and LOVE and LOYALTY on his arms, were easily
visible when he was wearing a tee-shirt. Only the B with the
five point crown would have been covered up, and it would become
easily visible were he to wear a tank top or take off his shirt.
Thus, though the tattoos incriminated him because he had branded
BHB slogans and symbols all over his body, they were an open
physical characteristic outside the protections of the Fifth
Amendment. Unlike in Hubbell, here the act of production was
nothing more than merely allowing a cursory examination of
Toliver’s body as opposed to painstakingly combing through
records in order to deliver the government its case.
Therefore, we find no merit to Toliver’s Fifth Amendment
challenge.
4.
Toliver’s second argument concerning his tattoos is that
Special Agent Smith’s testimony violated the Confrontation
Clause of the Sixth Amendment. He contends that Special Agent
Smith based his expert opinion on testimonial statements by
other gang members, thus importing those testimonial statements
into the trial without giving him the opportunity to cross-
examine the declarants. However, our precedent mandates the
conclusion that Special Agent Smith’s testimony was not a
violation of the Sixth Amendment.
28
The question of when expert testimony violates the
Confrontation Clause is well-settled in the Fourth Circuit. As
we recently stated: “An expert witness’s reliance on evidence
that Crawford would bar if offered directly only becomes a
problem where the witness is used as little more than a conduit
or transmitter for testimonial hearsay, rather than as a true
expert whose considered opinion sheds light on some specialized
factual situation.” United States v. Johnson, 587 F.3d 625, 635
(4th Cir. 2009). If, on the other hand, the expert is “applying
his training and experience to the sources before him and
reaching an independent judgment, there will typically be no
Crawford problem. The expert’s opinion will be an original
product that can be tested through cross-examination.” Id. In
Johnson, this Court held that when experts testified as to the
meaning behind intercepted phone calls concerning the sale of
narcotics, their testimony did not violate the Confrontation
Clause because the experts used their own considered judgments
along with their training and information from informants. Id.
at 636.
Here, although Toliver alleges that Special Agent Smith
relied on testimonial statements by gang members, there is no
such evidence in the record. Rather, the only evidence is that
Special Agent Smith relied on his formal training to interpret
the tattoos. Furthermore, even if he had relied on such
29
testimonial statements, Special Agent Smith’s testimony was
certainly more than a parroting of the statements of others.
Instead, he considered the tattoos on Toliver’s body and offered
his independent opinion as to what each meant. Thus, his
testimony poses no problem under the Confrontation Clause.
5.
Toliver’s final argument concerning the admission of the
testimony and photos of his tattoos is that they violated both
Federal Rule of Evidence 404(b) and the Due Process Clause of
the Constitution because they constituted character evidence.
He argues that because the photographs were not introduced for
identification purposes, they necessarily had the purpose of
convincing the jury that Toliver was a bad person, predisposed
to participating in the crimes alleged. 5 We find no violation of
the Due Process Clause because evidence of the tattoos was
properly admitted as evidence of his participation in the BHB,
an element of the crime with which he was charged.
Rule 404 provides that “evidence of a person’s character or
trait of character is not admissible for the purpose of proving
action in conformity therewith on a particular occasion.” Fed.
5
Toliver also argues that the tattoos were used as improper
impeachment evidence, but that argument certainly must fail
because the evidence was introduced during the prosecution’s
case-in-chief, and he never testified.
30
R. Evid. 404(a). That same evidence may, however, be used for
purposes other than showing the defendant’s character, such as
motive, intent, or identification, so long as the probative
value of the evidence is not substantially outweighed by the
danger of unfair prejudice to the defendant. Fed. R. Evid.
404(b); Fed. R. Evid. 403.
Toliver was charged under the RICO statute, and thus the
government was required to prove that he was “employed by or
associated with any enterprise” affecting its purpose through
racketeering activity. 18 U.S.C. § 1962(c) (2006) (emphasis
added). The Supreme Court has held that an “enterprise” under
the statute includes “a group of persons associated together for
a common purpose of engaging in a course of conduct.” United
States v. Turkette, 452 U.S. 576, 583 (1981); see also Boyle v.
United States, 129 S. Ct. 2237, 2245-46 (2009) (holding that an
enterprise under RICO need not have a business-like structure
and can have a rather informal organization). For an individual
to be convicted of a RICO offense, therefore, the government
must prove both that an enterprise exists and that the defendant
participated in the enterprise through racketeering activity.
The enterprise alleged in this case was the BHB, a criminal
gang dedicated to the sale of narcotics and pecuniary gain
through robberies and home invasions. The evidence offered by
the government regarding how individuals were inducted into the
31
gang, its hierarchical structure, and the type of racketeering
activity engaged in by its members was offered as proof of the
existence of the enterprise. Thus, the government was required
to prove that Toliver participated in the BHB and its
racketeering activities. Given that the government was required
to show Toliver’s membership in the BHB as one of the elements
of the substantive crime, the presence of the gang tattoos all
over his body tended to show Toliver was a member, and the
evidence was properly admitted to show that membership.
Additionally, this Court has held that “the Rule 404(b)
inquiry applies only to evidence of other acts that are
‘extrinsic to the one charged.’” Basham, 561 F.3d 302, 326 (4th
Cir. 2009) (quoting United States v. Chin, 83 F.3d 83, 87 (4th
Cir. 1996)). “Evidence of uncharged conduct is not ‘other
crimes’ evidence subject to Rule 404 if the uncharged conduct
‘arose out of the same series of transactions as the charged
offense, or if [evidence of the uncharged conduct] is necessary
to complete the story of the crime on trial.’” United States v.
Siegel, 536 F.3d 306, 316 (4th Cir. 2008) (quoting United States
v. Kennedy, 32 F.3d 876, 885 (4th Cir. 1994)). Therefore, even
if Toliver’s tattoos were considered evidence “extrinsic” to the
charged crime of RICO, the photos would be admissible because
the fact that Toliver had branded himself with BHB symbols
32
arises out of the same series of transactions, namely
participation in a criminal enterprise, the BHB.
Thus, each of Toliver’s challenges to the photographs and
testimony concerning his tattoos must fail.
D.
The final issue raised by Mix and Toliver on appeal
concerns sufficiency of the evidence. They both challenge their
various drug and gun convictions, and Mix individually
challenges his convictions for assault with a deadly weapon in
aid of racketeering and accessory after the fact. We find that
there was sufficient evidence such that a reasonable jury could
have found all of the essential elements of the crimes charged,
and affirm their convictions.
1.
In reviewing the evidence for sufficiency, this Court must
view the evidence in the light most favorable to the government,
drawing all inferences in the government’s favor, and must
affirm the verdict if any rational trier of fact could have
found the essential elements of the crime charged beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319
(1979); United States v. Stewart, 256 F.3d 231, 249 (4th Cir.
2001) (“In evaluating the sufficiency of the evidence, the jury
verdict must be upheld if there exists substantial evidence,
including circumstantial and direct evidence, to support the
33
verdict, viewing the evidence in the light most favorable to the
government.”).
2.
Toliver and Mix jointly raise a sufficiency of the evidence
challenge to their various drug and gun convictions. Their main
contention is that given the complete lack of any physical
evidence tying them to the crimes, in that no drugs or guns were
introduced into evidence, it would be unconstitutional to uphold
their sentences. However, the testimony at trial supports their
convictions, and we affirm. 6
Given the deference shown to the jury’s verdict upon
appeal, we have held that the uncorroborated testimony of a
single witness may be sufficient to uphold the conviction, even
if that witness has credibility problems. United States v.
Wilson, 115 F.3d 1185, 1190 (4th Cir. 1997) (holding that the
uncorroborated testimony of an informant may be sufficient to
sustain a conviction); United States v. Baker, 985 F.2d 1248,
1255 (4th Cir. 1993) (uncorroborated testimony of an accomplice
6
We are mindful of the defendants’ argument that “Toliver
and Mix were sentenced to the equivalent of several life terms
based on the vague and unreliable testimony . . . [of] snitches
and convicted felons seeking to feather their nest[s] for
sentencing reductions or to stay out of jail entirely due to
immunity agreements,” yet we decline to reverse a jury verdict
which is in fact supported by the testimony at trial. Pet’r Br.
at 57.
34
sufficient to support conviction). Furthermore, we are not to
reweigh the credibility of witnesses upon appeal and are to
assume that the jury found witnesses credible. United States v.
Reavis, 48 F.3d 763, 771 (4th Cir. 1995). Thus, we inquire
whether a reasonable jury, given the testimony before it, could
have found the defendant guilty of the charge.
What the defendants charge is true: the evidence presented
by the government was composed of testimony by coconspirators
who testified as to general dates on which the firearm and drug
offenses occurred. Additionally, it is true that much of the
testimony about the gun and drug offenses had no corroboration,
either from other witnesses or from physical evidence. However,
in reviewing the charges on which the defendants were convicted,
there was testimony at trial which corresponded to each of the
convictions. 7 Thus, the jury could have reasonably found that
the defendants committed the drug offenses with which they were
charged.
7
The defense offered the incarceration records of Toliver
in order to establish that he could not have been dealing drugs
at the time stated by the witness because he was incarcerated
then. Yet, the jury need not have found specific dates on which
the offenses occurred, and we will not disturb its verdict if it
could have rationally found the defendants committed the
offenses.
35
3.
Mix then individually argues that his conviction for
assault with a deadly weapon in aid of racketeering should be
reversed because the jury found him not guilty of possession of
a firearm in furtherance of a violent crime in relation to the
same offense. His challenge to this conviction is unavailing
for two reasons. First and foremost, the Supreme Court has held
that defendants may not challenge verdicts which appear to be
inconsistent on the basis that the verdict was in error. United
States v. Powell, 469 U.S. 57, 66 (1984). Secondly, there is
not necessarily anything inherently contradictory about the
verdicts, as Mix was charged with aiding and abetting on the
count for which he was convicted and there is no requirement
that the principal be convicted in order for the aider and
abetter to be convicted. United States v. Horton, 921 F.2d 540,
543-44 (4th Cir. 1990). Thus, the jury rationally could have
found that Mix aided and abetted in the assault with a deadly
weapon in furtherance of racketeering without having possessed
or aided in the possession of any firearm.
4.
Mix finally argues that his conviction for accessory after
the fact related to the murder of James Robertson is not
supported by sufficient evidence because of perceived
inconsistencies in the testimony concerning the incident.
36
However, viewing the evidence in the light most favorable to the
government, there was certainly sufficient evidence to find that
Mix aided in helping the killer, Curtis Newby, leave Virginia
and hide out in New York. Marlon Reed testified that Mix told
him that he was taking Newby up to New York to hide out with
Cody in Mount Vernon. Further, the jury heard testimony that,
at the time of trial, Newby had just been extradited from New
York to Virginia. A rational jury thereby could have found that
Mix was an accessory after the fact to the murder.
III.
For the reasons detailed above, both Mix’s and Toliver’s
convictions are
AFFIRMED.
37