US v. Alan Barnett

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 3:12-cr-00188-FDW-DSC-2 Copies to all parties and the district court/agency. [999945455].. [14-4866, 14-4885]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4866

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALAN BOYD DONTA BARNETT, a/k/a Big Al,
Defendant - Appellant.

No. 14-4885

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SAMANTHA WILLIAMS, a/k/a Lady Sam, as Administrator of the
Estate of Samantha Wilkinson,
Defendant - Appellant.

Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte.
Frank D. Whitney,
Chief District Judge.
(3:12-cr-00188-FDW-DSC-2; 3:12-cr-00188FDW-DSC-27)

Argued:

March 24, 2016

Decided:

October 12, 2016

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Before AGEE and WYNN, Circuit Judges, and Thomas D. SCHROEDER,
United States District Judge for the Middle District of North
Carolina, sitting by designation.

Affirmed in part and reversed in part by unpublished opinion.
Judge Wynn wrote the opinion, in which Judge Agee and Judge
Schroeder joined.

ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina; Jeffrey William
Gillette, GILLETTE LAW FIRM, PLLC, Franklin, North Carolina, for
Appellants.
Amy Elizabeth Ray, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina, for Appellee.
ON BRIEF:
Ross Hall Richardson, Executive Director, FEDERAL DEFENDERS OF
WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for
Appellant Williams.
Jill Westmoreland Rose, Acting United
States
Attorney,
OFFICE
OF
THE
UNITED
STATES
ATTORNEY,
Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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WYNN, Circuit Judge:
In 2012, the government indicted twenty-eight individuals
for various crimes arising out of their alleged involvement with
the gang United Blood Nation (“UBN”).

Two of these individuals,

Defendants Samantha Williams and Alan Barnett, proceeded to a
joint trial.

The jury convicted both Defendants of conspiring

to violate the Racketeer Influenced and Corrupt Organizations
Act

(“RICO”),

convicted

18

U.S.C.

Barnett

of

§ 1962(d).

conspiring

to

Additionally,
commit

murder

the
in

jury

aid

of

racketeering activity, two counts of conspiring to commit Hobbs
Act robbery, and several drug-related offenses.
Defendants
convictions

and

assert

numerous

sentencing.

no

reversible

of

racketeering

two

that

racketeering

activity,

as

his

error

We conclude, however, that the government failed to

commission

affirm

their

sentence.

evidence

thus

find

to

to

sufficient

and

We

related

pertaining

produce

Barnett

errors

Williams

acts

required

agreed

forming
by

conviction

a

to

pattern

Section

and

the
of

1962(d).

Accordingly, we reverse Williams’s conviction for conspiracy to
violate RICO.
I.
At trial, the government established the following facts.
UBN was founded in 1993 at Rikers Island Prison in New York
City, when two prisoners brought together several smaller groups
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affiliated with the Bloods gang.
eight

groups,

called

“sets,”

UBN originally consisted of

including

Bloods, commonly known as “G-Shine.”

the

Gangster

J.A. 262.

Killer

At present,

UBN’s power structure remains in New York, but its membership
has

spread

Coast.

to

other

prisons

and

communities

along

the

East

The leader, or “godfather,” of each set serves on the

central council for the gang and directs set leaders in each
state.

J.A. 263.

The gang operates through a hierarchical

structure and a strict set of rules.
A.
Defendant Barnett was the second highest ranking member of
the G-Shine set in North Carolina.

In the G-Shine hierarchy,

Barnett was directly under Franklin Robbs, the leader of G-Shine
in

North

Carolina,

who

in

turn

reported

to

Daryl

Wilkinson.

Wilkinson—-also known as “OG Powerful,” “Infinity Q45,” and by
various other names—-was the godfather of G-Shine during the
relevant time period and was incarcerated in New York.
The government monitored a wiretap on Barnett’s phone for
roughly 90 days and surveilled Barnett and other UBN members for
years.

At trial, the government submitted audio recordings of

over two dozen calls collected as part of the wiretap.

On one

of those phone calls, described in greater detail below, see
infra Part III.A, Barnett and other UBN members discussed a plan
for a UBN member to attack an individual named Deray Jackson.
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Additionally, numerous witnesses, including several UBN members
charged
role

in

as co-conspirators,
G-Shine

trafficking.

and

his

testified

to

participation

Barnett’s

in

leadership

robberies

and

drug

Several law enforcement officers also testified

regarding instances in which they purchased drugs from Barnett
using undercover agents.
The jury found Barnett guilty of RICO conspiracy, 18 U.S.C.
§ 1962(d); conspiracy to commit murder in aid of racketeering,
18 U.S.C. § 1959(a)(5); two counts of conspiring to commit Hobbs
Act

robbery,

18

U.S.C.

§ 1951;

conspiracy

to

distribute

and

possession with intent to distribute cocaine base, 21 U.S.C.
§§ 841(b)(1)(A), 846; illegal use of a communication device, 21
U.S.C.

§ 843(b);

§ 841(b)(1)(C).

and

distribution

of

cocaine,

21

U.S.C.

The court sentenced Barnett to 360 months in

prison.
B.
At

the

time

of

the

events

giving

rise

to

this

case,

Williams was Wilkinson’s girlfriend and “first lady”—-which, in
UBN parlance, is “the mouthpiece . . . for [a] high ranking male
member if he’s incarcerated.”

J.A. 291, 293.

At trial, the

government introduced letters between Williams and Wilkinson and
recordings
members.

of

calls

among

Williams

and

other

alleged

UBN

Although the government monitored roughly 17,000 phone

calls through its wiretap on Barnett, and thousands more through
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wiretaps on other UBN members, Williams participated in less
than ten of the calls.
To meet its burden to prove that Williams agreed that UBN
members

would

commit

at

least

two

racketeering

acts,

the

government introduced evidence regarding alleged conspiracies:
(1) to commit the murders of Kellie Star, a UBN member who had
belonged to several different sets; Robbs, the leader of G-Shine
in North Carolina; and an individual named Dread; and (2) to
extort UBN members by requiring them to pay dues.

See infra

Part

regarding

IV.

The

government

various

robberies

though,

as

the

and

also

drug

government

introduced

crimes

committed

concedes,

directly related to Williams.

evidence

none

by

members,

that

of

UBN

evidence

Appellee’s Br. at 54–55.

At the close of trial, the jury found Williams guilty of
conspiring to violate RICO.

In its verdict, the jury concluded

that Williams agreed that at least two specific racketeering
acts would be committed as part of the UBN conspiracy.
in

accordance

with

the

verdict

form

and

However,

the

court’s

instructions, the jury did not identify which two acts formed
the

basis

of

its

verdict.

The

court

sentenced

Williams

to

seventy-two months in prison.
II.
RICO

makes

it

“unlawful

for

any

person

employed

by

or

associated with any enterprise engaged in, or the activities of
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which

affect,

participate,

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interstate
directly

or

or

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foreign

commerce,

indirectly,

in

the

to

conduct

conduct

of

or

such

enterprise’s affairs through a pattern of racketeering activity
. . . .”

18

U.S.C.

activity”

is

activity”

occurring

§ 1961(5).
States,

as

“at

within

A

least
a

“pattern
two

acts

ten-year

of

racketeering

of

racketeering

period.

18

U.S.C.

These “so-called predicate acts,” Salinas v. United

522

involving

defined

§ 1962(c).

U.S.

murder,

52,

62

. . .

(1997),

include

robbery,

. . .

“any

act

or

extortion,

threat

. . .

or

dealing in a controlled substance . . . , which is chargeable
under State law and punishable by imprisonment for more than one
year.”

18 U.S.C. § 1961(1)(A).

The jury convicted Barnett and Williams of violating 18
U.S.C.

§ 1962(d),

substantive
§ 1962(d),

RICO
the

which

prohibits

offense,

government

Section
must

conspiring
1962(c).

prove

[1]

that

to

commit

“[T]o
an

the

satisfy

enterprise

affecting interstate commerce existed; [2] ‘that each defendant
knowingly

and

intentionally

agreed

with

another

person

to

conduct or participate in the affairs of the enterprise; and [3]
. . . that each defendant knowingly and willfully agreed that he
or some other member of the conspiracy would commit at least two
racketeering acts.’”

United States v. Mouzone, 687 F.3d 207,

218 (4th Cir. 2012) (quoting United States v. Wilson, 605 F.3d
985, 1018–19 (D.C. Cir. 2010)).
7

Unlike the general conspiracy

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provision applicable to federal crimes, 18 U.S.C. § 371, Section
1962(d)

does

not

require

any

overt

or

specific

committed in furtherance of the conspiracy.
at 64.

An agreement is sufficient.

act

to

be

Salinas, 522 U.S.

Id.

Additionally, the two predicate acts must form “a pattern
of racketeering activity”, 18 U.S.C. § 1962(c), which means the
acts must be “related” and “pose a threat of continued criminal
activity.”

H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 239

(1989).

This

requires

a

two-prong

“continuity

“commonsensical,

pattern requirement.”
684 (4th Cir. 1989).

plus

relationship”

fact-specific

approach

to

test
the

Menasco, Inc. v. Wasserman, 886 F.2d 681,
This effectuates “Congress’s desire to

limit RICO’s application to ‘ongoing unlawful activities whose
scope

and

being.’”

persistence

pose

a

special

threat

to

social

well-

US Airline Pilots Ass’n v. Awappa, LLC, 615 F.3d 312,

318 (4th Cir. 2010) (quoting Al-Abood ex rel. Al-Abood v. ElShamari, 217 F.3d 225, 238 (4th Cir. 2000)).
Defendants raise numerous challenges to their convictions
and sentences, both individually and jointly.

We first address

Barnett’s assignments of error and then address those raised by
Williams.

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III.
A.
Barnett first asserts that there was insufficient evidence
to support his conviction under 18 U.S.C. § 1959 for conspiring
to murder Deray Jackson in order to maintain or increase his
position in UBN.

We disagree.

“We review de novo the district court’s ruling on a motion
for judgment of acquittal and we will uphold the verdict if,
viewing

the

evidence

in

the

light

most

favorable

government, it is supported by substantial evidence.”

to

the

United

States v. Kingrea, 573 F.3d 186, 194 (4th Cir. 2009) (quotation
omitted).

“Substantial evidence is evidence that a reasonable

finder

fact

of

could

accept

as

adequate

and

sufficient

to

support a conclusion of a defendant’s guilt beyond a reasonable
doubt.”

Id. at 194–95 (internal quotation omitted).

circumstantial

evidence

may

sufficiently

support

a

“While

conspiracy

conviction, the Government nevertheless must establish proof of
each element of a conspiracy beyond a reasonable doubt.”

United

States v. Burgos, 94 F.3d 849, 858 (4th Cir. 1996).
Barnett’s conviction for conspiracy to commit murder in aid
of racketeering rested primarily on a June 23, 2011, phone call
among Barnett and several inmates at the Bertie Correctional
Center in North Carolina.

An inmate named Joseph Gray added

Barnett to the call to discuss the “insubordination” of fellow
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G-Shine member Nathaniel Graham.

J.A. 1639.

Barnett and other

participants on the call discussed the fact that Deray Jackson,
an inmate who was not affiliated with UBN, had stolen a cell
phone.

In response, Gray and others had ordered Graham to “eat”

Jackson and, in addition, made clear that “[t]his was his day to
die.”

J.A. 1651, 1654.

Graham did not immediately carry out

this order, angering Gray and prompting the call.
Graham’s
forefront

hesitation

internal

to

strife

follow

involving

orders
two

brought

subsets

of

to

the

G-Shine—-

Pretty Tony and Black Gangsta Bloods (“BGB”)—-that Robbs and
Barnett

were

attempting

to

bring

under

the

UBN

umbrella.

Barnett and certain other G-Shine members viewed Pretty Tony and
BGB as part of G-Shine.
less

welcoming

officially

added

to

Other members of G-Shine, however, were

the

to

new

UBN

subsets,

by

neither

Wilkinson,

of

G-Shine’s

which

was

godfather.

During the phone call, the inmates discussed their annoyance
that others in UBN did not “accept the fact that [Pretty] Tony
is Shine now” and not “a[n] individual entity.”

J.A. 1637.

Graham, who was affiliated with G-Shine and BGB, had failed to
follow an order from high-ranking members of Pretty Tony and had
expressed doubt over their authority.
On the call, Barnett—-who was identified as a high-ranking
member
stating

of

BGB—-scolded

that

“Pretty

Graham
Tony

for

is

failing

Shine”

10

and

to

follow

“[y]ou

orders,

ain’t

even

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supposed to hesitate to eat the plate from the beginning.”
1637, 1643, 1652.
why

Jackson

had

J.A.

When another participant on the call asked
not

yet

been

shot,

Barnett

responded

“more

east,” J.A. 1653, which is a UBN term indicating understanding
or agreement.
Four days after the call, Jaimel Davidson, a member of GShine,

violently

J.A. 924.

assaulted

Jackson

with

a

“slashing

Graham was present at the attack.

weapon.”

Based on the

evidence presented, the jury convicted Barnett of conspiring to
murder Jackson, in violation of 18 U.S.C. § 1959.
1.
To convict a defendant of conspiracy to commit murder in
aid

of

racketeering,

the

jury

must

find

beyond

a

reasonable

doubt:
(1) that the organization was a RICO enterprise, (2)
that the enterprise was engaged in racketeering
activity as defined in RICO, (3) that the defendant in
question had a position in the enterprise, (4) that
the defendant [conspired to] commit[] the alleged
crime . . . , and (5) that his general purpose in so
doing was to maintain or increase his position in the
enterprise.
United

States

v.

Fiel,

35

F.3d

997,

1003

(4th

Cir.

1994)

(quoting United States v. Concepcion, 983 F.2d 369, 381 (2d Cir.
1992)).
Here, the organization identified in the indictment is UBN.
Barnett asserts that the alleged conspiracy to murder Jackson

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(1) “was outside the scope of the UBN” because it was solely a
BGB conspiracy, Appellants’ Br. at 47, and (2) “did not maintain
or increase Barnett’s alleged position within the UBN,” id. at
48.

We address each of these contentions in turn.
First,

we

find

that

a

rational

juror

could

have

found,

beyond a reasonable doubt, that the conspiracy was related to
UBN—-and not to BGB alone.

At trial, Barnett was identified as

both the second-in-command of G-Shine in North Carolina and a
high-ranking member of BGB.

There is no evidence that Barnett

quit or was forced out of G-Shine when he began his affiliation
with BGB.

Witnesses described BGB as a “set inside a set” and

characterized BGB as a subset of G-Shine rather than a new,
separate entity.
members

J.A. 709–10.

considered

themselves

Indeed, Barnett and other BGB
to

be

G-Shine

(and

thus

UBN)

the

call

members.
Consistent

with

this

evidence,

participants

on

repeatedly affirmed that they were members of both G-Shine and
their respective subsets.

They also stated that Pretty Tony and

BGB were part of G-Shine.

For instance, Barnett stated, “Pretty

Tony is Shine . . . and that ain’t gonna change.”

J.A. 1643;

see also J.A. 1659 (in which Gray asserted, “I’m looking at
everybody as Shine”).

Additionally, the participants on the

call greeted each other with the phrases “shine love” and “shine

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loyalty,” which were identified multiple times at trial as being
used only by and between members of G-Shine.
Barnett correctly points out that G-Shine’s leadership, and
Wilkinson in particular, opposed incorporating Pretty Tony and
BGB into UBN.

However, the record is unclear as to precisely

when

Wilkinson

and

Wilkinson
evidence

how

clearly
that

it

rendered

this

excluded

BGB

from

happened

before

the

decision.
G-Shine,

Even

if

is

no

there

conspiracy

to

murder

Jackson arose.
In sum, a reasonable juror could have concluded that the
conspiracy to murder Jackson was related to UBN.
2.
Second, Barnett argues that he did not participate in the
conspiracy “for the purpose of . . . maintaining or increasing
[his] position in” UBN, as required by 18 U.S.C. § 1959.
States v. Ayala, 601 F.3d 256, 265 (4th Cir. 2010).

United

The purpose

requirement is “satisfied if the jury could properly infer that
the defendant committed his . . . crime because he knew it was
expected of him by reason of his membership in the enterprise or
that he committed it in furtherance of that membership.”

Fiel,

35 F.3d at 1004 (quoting Concepcion, 983 F.2d at 381).
For instance, in United States v. Tipton, the defendant
claimed that his violent actions were motivated by a desire to
get revenge for “a purely personal grievance.”
13

90 F.3d 861, 891

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(4th Cir. 1996).

Pg: 14 of 36

Rejecting the defendant’s argument, we found

the evidence sufficient to support the jury’s determination that
the actions were committed for the purpose of maintaining or
increasing his position within the racketeering enterprise.

Id.

In particular, we emphasized that the attacks were carried out
“in part at least in furtherance of the enterprise’s policy of
treating affronts to any of its members as affronts to all” and
because “furthering the reputation for violence [is] essential
to

maintenance

Furthermore,

of

the

retaliatory

enterprise’s”
attacks

reputation.

were

“critical

maintenance of one’s position in the enterprise.”

Id.
to

the

Id.

Under Fiel and Tipton, there was sufficient evidence that
Barnett’s participation in the plan to murder Jackson helped him
to maintain or increase his position in UBN.

Barnett’s position

as a high-ranking member of UBN relied, at least in part, upon
other members of UBN following his and his superiors’ orders.
The evidence at trial suggested that UBN uses a strict, almost
militaristic

hierarchy.

Maurice

Robinson,

a

UBN

member,

testified that if a gang member is given an order he must follow
it, regardless of what the order is and that failure to do so
would be in violation of the organization’s policies.
respecting

the

important” rules.

“chain

of

command”

J.A. 271–72.

14

was

one

of

UBN’s

Indeed,
“most

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Consistent with this rule, Barnett emphasized on the call
the importance of following the chain of command and obeying the
orders of superiors within the gang.
not

to

hesitate

when

“[i]nsubordination
Enforcing
expected

[would]

G-Shine’s
of

following
not

hierarchy

Barnett,

but

Barnett instructed Graham

an
be

in

also

order

agreed

was

manner

“in

that

J.A.

tolerated!”
this

enterprise’s policy” and reputation.

and

1646.

was

not

furtherance

of

only
the

Tipton, 90 F.3d at 891.

In conclusion, there was sufficient evidence to support a
finding, beyond a reasonable doubt, that Barnett conspired to
murder Jackson for the purpose of maintaining or increasing his
position in UBN.

Accordingly, we affirm Barnett’s conviction

under 18 U.S.C. § 1959.
B.
Barnett further argues that the district court erroneously
allowed

Steven

Mecklenburg

Parker,

Police

a

detective

Department

who

with
assisted

the
the

CharlotteFBI

in

investigating UBN, and UBN members Maurice Robinson and Rafus
Camp to testify regarding the meaning of slang words used on
recorded phone calls. 1

In particular, Barnett argues that lay

1

Williams also challenges this evidentiary decision.
Because we conclude that the government failed to introduce
sufficient evidence to support Williams’s conviction, see infra
Part IV, we need not—-and thus do not—-address whether the
(Continued)
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witnesses—-i.e., those who have not been certified as experts—are not permitted to interpret calls in this way unless they
personally observed or participated in the calls in question.
We review challenges to a trial court’s evidentiary rulings
for abuse of discretion.
130 (4th Cir. 2014).

United States v. Hassan, 742 F.3d 104,

“A court has abused its discretion if its

decision is guided by erroneous legal principles or rests upon a
clearly erroneous factual finding.”

United States v. Johnson,

617

(internal

F.3d

286,

omitted).

292

(4th

Cir.

2010)

quotation

Even if the district court errs, we will not reverse

if the error was harmless.

United States v. McLean, 715 F.3d

129, 143 (4th Cir. 2013) (citing Fed. R. Crim. P. 52).
is

harmless

judgment

marks

if

was

we

not

can

say

“with

substantially

fair

swayed

assurance”
by

the

An error
that

“the

error.”

Id.

(quoting United States v. Heater, 63 F.3d 311, 325 (4th Cir.
1995)).
Even assuming that the district court erred in admitting
the challenged testimony, the error would not have substantially
swayed the jury’s verdict as to Barnett.
limited
phone

to
calls

interpretations
in

which

by

they

district court reversibly
evidence against her.

Parker,

did

erred

16

not

in

Barnett’s claim is

Robinson,
personally

admitting

and

Camp

of

participate.

this

challenged

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does

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not

challenge

Pg: 17 of 36

the

portions

of

these

three

witnesses’ and others’ testimony that simply defined slang terms
used by the gang; rather, he challenges only the application of
those definitions to “translate” a statement on a particular
phone

call.

The

challenged

testimony,

then,

was

often

cumulative and presented an interpretation of the phone calls
that the jury almost certainly would have reached on its own by
using the unchallenged definitions of gang terms.
Barnett

specifically

identifies

only

one

challenged

statement that pertained to him: Parker’s testimony that the
term “eat the plate,” when used in Barnett’s June 23, 2011,
phone call with inmates at Bertie Correctional Center, meant to
follow an order—-in this case to “kill Deray Jackson.”
402.

J.A.

Several other witnesses testified that “eat the plate”

meant to carry out an order and that gang members could be
ordered

to

attack

or

even

kill

an

identified

person.

And

additional statements on the phone call made clear that Jackson
was supposed to be shot and killed.
was his day to die.

See, e.g., J.A. 1654 (“This

Today was his day.”); J.A. 1653 (asking

“why [Jackson] ain’t been got shot”); J.A. 1661 (discussing that
the

intention

had

been

for

Jackson

to

“die”).

Given

these

statements, the jury almost certainly would have reached the
conclusion that Graham had been ordered to kill Jackson—-even
absent Parker’s purported interpretation of the phone call.
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Reviewing

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the

remainder

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of

the

testimony,

we

find

no

instances in which Parker, Robinson, or Camp interpreted a phone
call

in

a

way

that

was

not

either

obvious

from

the

plain

language or easily understandable based on the definitions of
gang terms introduced at trial without objection.

In addition,

we note that there was abundant evidence to support Barnett’s
convictions even if these lay witness interpretations had been
excluded.
error

Therefore, we conclude with fair assurance that any

in

admitting

the

challenged

testimony

did

not

substantially sway the jury’s verdict regarding Barnett.
C.
Barnett next asserts that the district court erroneously
instructed

the

jury

regarding

the

“pattern

of

racketeering

activity” required for a RICO conspiracy conviction.
§ 1962(c). 2

18 U.S.C.

Barnett argues that the jury instructions failed to

adequately explain that “predicate acts that show a pattern of
criminal

activity

enterprise.”

must

Appellants’

be

related

Br.

2

at

53.

to

the
Without

racketeering
clarifying

Barnett also argues that the jury instruction defining
extortion was plainly erroneous.
At the time of briefing,
Barnett admitted that the jury instructions conformed to this
Court’s opinion in United States v. Ocasio, 750 F.3d 399 (4th
Cir. 2014), but wished to preserve the issue pending Supreme
Court review.
Appellants’ Br. at 54.
The Supreme Court
affirmed Ocasio, Ocasio v. United States, 136 S. Ct. 1423, 1429
(2016), foreclosing this argument.

18

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language,

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Barnett

claims,

the

Pg: 19 of 36

jury

may

have

based

his

RICO

conspiracy conviction on criminal acts related to the six other
counts

for

which

relation to UBN.

he

was

tried,

even

if

those

acts

had

no

We disagree.

At trial, Barnett proposed the following jury instruction:
The defendant knowingly and willfully became a member
of
the
conspiracy
to
further
the
racketeering
activities of the enterprise.
A conspiracy must
intend to further an endeavor which, when completed,
would satisfy all of the elements of the substantive
racketeering offense, but it suffices that he adopt
the goal of furthering or facilitating the criminal
endeavor.
However, defendant and partners in the
criminal plan must agree and pursue to the same
criminal objective.
J.A.

1360.

The

district

court

rejected

this

instruction.

Barnett later argued for an instruction clarifying that criminal
acts unrelated to UBN could not be predicate acts for a RICO
conspiracy.

To accommodate this request, the district court

added a line to the jury instructions, so that the final version
read, in relevant part:
Proof of several separate conspiracies is not proof of
the
single,
overall
conspiracy
charged
in
the
superseding indictment . . . .
Random criminal acts
unrelated to the conspiracy are not proof of a RICO
conspiracy.
If you find that one or more of the
defendants was not a member of or associated with the
conspiracy charged, then you must find that defendant
not guilty, even though that defendant may have been a
member of some other conspiracy.
This is because
proof that a defendant was a member of some other
conspiracy is not enough to be convicted.
J.A. 1489.

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In addition to this passage, the final jury instructions
thoroughly discussed the elements of RICO conspiracy.

Using

language similar to the rejected jury instruction proposed by
Barnett, the instructions stated that the defendant must have
“knowingly and willfully bec[o]me a member of the conspiracy to
further the unlawful purposes of the enterprise,” J.A. 1475, and
“knowingly adopted the goal of furthering or facilitating the
enterprise,” J.A. 1488.
“the

government

must

Additionally, the court instructed that

prove

beyond

a

reasonable

doubt

that

a

particular defendant agreed that a member of the conspiracy did
or would commit at least two acts of racketeering of the type or
types as described in count one of the superseding indictment.”
J.A. 1481–82.

The instructions further provided that “[t]he

government must prove beyond a reasonable doubt that at least
two of these acts were, or were intended to be, committed as
part of the conspiracy.”

J.A. 1482 (emphasis added).

Barnett argues that the district court erred in refusing
his proposed jury instruction and failed to adequately instruct
the jury about the elements of RICO conspiracy.

“We review a

district

give

court’s

decision

to

give

or

instruction for abuse of discretion.”
701

F.3d

1002,

1011

(4th

Cir.

refuse

to

a

jury

United States v. Smith,

2012).

We

must

“determine

whether, taken as a whole, the instruction fairly states the
controlling law.”

United States v. Moye, 454 F.3d 390, 398 (4th
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Cir. 2006) (en banc) (internal quotation marks omitted).

If the

instructions contain an “error of law,” the district court has
abused its discretion.

Id.

When the district court rejects a proposed instruction, we
reverse only if that instruction “(1) was correct; (2) was not
substantially covered by the court’s charge to the jury; and (3)
dealt with some point in the trial so important, that failure to
give

the

requested

instruction

seriously

defendant’s ability to conduct his defense.”

impaired

the

Smith, 701 F.3d at

1011 (quoting United States v. Passaro, 577 F.3d 207, 221 (4th
Cir. 2009)).
Here,
whole,

the

fairly

instructions

challenged
and

made

jury

accurately
clear

that

instructions,
state

the

considered

controlling

predicate

acts

as

law.
for

a

The
a

RICO

conspiracy had to be part of the charged RICO conspiracy and not
“[r]andom criminal acts unrelated to the conspiracy” or evidence
related to “some other conspiracy.”
instructions

may

not

have

J.A. 1489.

“reinforce[d]

this

Although the

requirement”

as

frequently as Barnett would have liked, Appellants’ Br. at 52
n.10, we

presume

that

the

jury

followed

the

instructions

given, Richardson v. Marsh, 481 U.S. 200, 211 (1987).

as

Thus, the

district court did not abuse its discretion by giving its jury
instructions on RICO’s pattern-of-racketeering element.

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The district court likewise did not abuse its discretion in
rejecting Barnett’s proposed jury instruction.
matter,

we

do

not

see—-nor

does

Barnett

As an initial

explain—-how

his

proposed instruction would have clarified the requirement that
the

predicate

conspiracy.

racketeering

acts

must

be

related

to

the

RICO

Instead, the proposed instruction restates other

elements of RICO conspiracy that were defined elsewhere in the
final

jury

instructions.

Accordingly,

its

absence

impair Barnett’s ability to conduct his defense.

did

not

See Smith, 701

F.3d at 1011.
In sum, we affirm Barnett’s RICO conspiracy conviction.
D.
Finally, Barnett argues that the district court improperly
sentenced him as a career offender pursuant to section 4B1.1 of
the

United

States

Sentencing

Guidelines

(the

“Guidelines”).

According to Barnett, Johnson v. United States, 135 S. Ct. 2551,
2555–57 (2015), which struck down the residual clause of the
Armed Career Criminal Act (“ACCA”) as unconstitutionally vague,
effectively invalidated the residual clause in the Guidelines’
definition of “crime of violence,” U.S.S.G. § 4B1.2.

Barnett

contends that, without the residual clause, he did not have “at
least two prior felony convictions of either a crime of violence
or

a

controlled

substance

offense,”

which

predicates to a career offender designation.
22

are

necessary

Id. § 4B1.1(a).

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“[W]e review the district court’s sentencing procedure for
abuse of discretion.”

United States v. Gomez-Jimenez, 750 F.3d

370, 379 (4th Cir.), as corrected (Apr. 29, 2014).
“ensure

that

the

district

court

committed

no

First, we
significant

procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range.”
U.S. 38, 51 (2007).

Gall v. United States, 552

If we find no procedural error, we then

“consider the substantive reasonableness of the sentence imposed
under an abuse-of-discretion standard.”
“[H]armless
procedural

sentencing

calculation.”
commonly

error

review

applies

errors

Gomez-Jimenez,

assume,

without

harmless error inquiry.”

made
750

deciding,

Id.
to

a

district

during

F.3d

at

an

its
382.

error

in

court’s

Guidelines
Thus,

“we

performing

United States v. Savillon-Matute, 636

F.3d 119, 123 (4th Cir. 2011).

A “Guidelines error is harmless

if we believe (1) the district court would have reached the same
result even if it had decided the guidelines issue the other
way, and (2) the sentence would be [substantively] reasonable
even if the guidelines issue had been decided in the defendant’s
favor.”
(4th

Cir.

United States v. Parral-Dominguez, 794 F.3d 440, 447
2015)

(alteration

in

marks omitted).

23

original)

(internal

quotation

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Even

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assuming

offender

was

sentencing,

in
the

that

error, 3

Pg: 24 of 36

Barnett’s
that

district

designation

error

court

was

a

harmless.

determined,

objection, that he was a career offender.

as

over

career
During

Barnett’s

Pursuant to section

4B1.1 of the Guidelines, the district court placed Barnett in
criminal history category VI, the same category that he would
have

been

U.S.S.G.

assigned

§ 4B1.1(b).

absent
The

the

career

district

offender

court

also

designation.

had

to

assign

Barnett the greater of “the offense level otherwise applicable,”
which was 41, and the offense level prescribed in the career
offender guideline, which was 37.

Id.

Thus, regardless of

whether he was labeled a career offender, Barnett had an offense
3

In declining to address this issue, we do not imply that
Barnett’s contention lacks merit.
Johnson concerned the ACCA,
but it also called into question the constitutionality of the
identical residual clause contained in the career offender
guideline’s definition of “crime of violence.”
See United
States v. Hudson, 823 F.3d 11, 18 (1st Cir. 2016) (stating that
the residual clause in the career offender guideline is invalid
following Johnson); United States v. Madrid, 805 F.3d 1204,
1210–11 (10th Cir. 2015) (holding that the residual clause in
the career offender guideline is unconstitutionally vague
pursuant to the reasoning in Johnson).
Some of Barnett’s
predicate crimes—-including common law robbery and robbery with
a dangerous weapon—-may have fallen within the residual clause.
See United States v. Gardner, 823 F.3d 793, 803–04 (4th Cir.
2016) (holding that North Carolina common law robbery qualified
as a violent felony under the now-unconstitutional residual
clause of the ACCA, and is no longer within the definition of a
violent felony post-Johnson); United States v. White, 571 F.3d
365, 369, 373 (4th Cir. 2009) (holding, pre-Johnson, that
conspiracy to commit robbery with a dangerous weapon fell within
the ACCA’s residual clause).

24

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level of 41 and a criminal history category of VI, leading to a
Guidelines range of 360 months to life imprisonment.

The court

sentenced Barnett to 360 months in prison, the bottom end of the
Guidelines range.
Even

if

the

career

offender

designation

had

affected

Barnett’s Guidelines range—-which it did not—-the district court
made clear that it still would have sentenced Barnett to 360
months in prison.

In particular, the district court pronounced,

as an alternative grounds for the sentence, that, “based solely
on

the

sentencing

sentencing

factors

guidelines,

without

particularly

consideration
with

emphasis

of
on

the
[the]

nature and circumstances of the offense, general and specific
deterrence, the Court does believe that a 360-month sentence is
the appropriate sentence.”

J.A. 1826–27.

Language of this sort

“make[s] it ‘abundantly clear’ that a judge would have imposed
the same sentence, regardless of any procedural error.”

Parral-

Dominguez, 794 F.3d at 447–48 (quoting Savillon-Matute, 636 F.3d
at 382–83); see also Gomez-Jimenez, 750 F.3d at 382–83 (citing a
similar

pronouncement

as

evidence

that

the

court

would

have

imposed the same sentence regardless of the Guidelines range).
Having

determined

that

the

district

court

“would

have

reached the same result” even if it had not sentenced Barnett as
a

career

offender,

substantively

we

next

reasonable.

assess
See
25

whether

the

Parral-Dominguez,

sentence
794

F.3d

was
at

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447.

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To do so, we “examine[] the totality of the circumstances

to see whether the sentencing court abused its discretion in
concluding that the sentence it chose satisfied the standards
set forth in [18 U.S.C.] § 3553(a).”

Gomez-Jimenez, 750 F.3d at

383 (quoting United States v. Mendoza-Mendoza, 597 F.3d 212, 216
(4th Cir. 2010)) (first alteration in original).
located

within

a

correctly

presumptively reasonable.”

calculated

“[A] sentence

guidelines

range

is

United States v. Susi, 674 F.3d 278,

289 (4th Cir. 2012) (internal quotation marks omitted).
Here, the district court thoroughly examined the factors in
Section 3553(a) and imposed a sentence at the bottom of the
Guidelines range.

We find this sentence to be substantively

reasonable and not an abuse of discretion.
Finding no reversible error relating to Barnett, we affirm
his convictions and sentence.
IV.
Williams principally challenges on appeal the sufficiency
of

the

evidence

violate RICO.

supporting

her

conviction

for

conspiring

to

As outlined above, “we will uphold [a] verdict

if, viewing the evidence in the light most favorable to the
government, it is supported by substantial evidence.”

Kingrea,

573 F.3d at 194; see supra Part III.A.
Williams
sufficient

claims

evidence

that
that

the
she

government
agreed
26

that

failed
UBN

to

introduce

members

would

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commit

the

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two

racketeering

Pg: 27 of 36

acts

necessary

pattern of racketeering activity.
claims

it

produced

evidence

to

establish

a

By contrast, the government

sufficient

to

establish

that

Williams agreed that she or another member of UBN would commit
(1) robberies and drug crimes, (2) extortion and (2) the murders
of Star, Robbs, and Dread.
To be convicted for RICO conspiracy, “[a] conspirator must
intend to further an endeavor which, if completed, would satisfy
all

of

the

elements

of

522

U.S.

65;

Salinas,
Government

. . .

at

must

a

substantive

Burgos,

establish

94

proof

criminal

F.3d
of

conspiracy beyond a reasonable doubt.”).

at

each

offense.”

858

(“[T]he

element

of

a

Accordingly, we must

determine whether a reasonable juror could conclude, beyond a
reasonable doubt, that the government established each element
of

the

substantive

offense

for

at

least

two

of

Williams’s

alleged predicate acts.
1.
The government first argues that Williams’s RICO conspiracy
conviction

is

supported

by

her

alleged

agreement

that

UBN

members would commit predicate racketeering acts of robbery and
drug

trafficking.

The

government

states:

“Because

Williams

played a central role in the gang as the primary source and
conduit of information and as an advisor integral to the success
and coordination of gang activities, the jury could reasonably
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that

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she

was

aware

Pg: 28 of 36

that

UBN

members

trafficking and committed robberies.”

engaged

in

drug

Appellee’s Br. at 54–55.

The government concedes that it “did not present direct evidence
that Williams personally participated in any such acts,” and it
fails

to

point

to

any

specific

robbery to which Williams agreed.
This

general

assertion

act

of

drug

trafficking

or

Id. at 54.

cannot

constitute

substantial

evidence that Williams knowingly and willfully agreed to the
commission of a robbery or drug trafficking offense and, thus,
is

insufficient

to

prove

a

predicate

racketeering

act.

See

Mouzone, 687 F.3d at 218 (holding that the government must prove
that “each defendant knowingly and willfully agreed that he or
some other member of the conspiracy would commit at least two
racketeering

acts.”

“[T]he

conspiracy

RICO

association

with

an

(quoting

Wilson,

statute

605

does

enterprise.’”

F.3d

not

Id.

at

1018–19)).

‘criminalize

(quoting

mere

Brouwer

v.

Raffensperger, Hughes & Co., 199 F.3d 961, 965 (7th Cir. 2000)).
Were

we

individual

to

accept

affiliated

the

government’s

with

a

gang

could

argument,
be

almost

presumed

to

any
know

about and agree to the commission of racketeering acts generally
and therefore be guilty of conspiring to violate RICO.
United

States

v.

Izzi,

613

F.2d

1205,

1210

(1st

Cir.

See
1980)

(“Guilt by association is one of the ever present dangers in a
conspiracy count that covers an extended period.”).
28

We decline

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the

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government’s

invitation

Pg: 29 of 36

to

broaden

RICO’s

scope

in

this

manner.
Without any evidence showing that Williams agreed to the
commission

of

a

particular

robbery

or

drug

offense,

no

reasonable juror could find, based solely on her association
with UBN, that she agreed to predicate acts of drug trafficking
or robbery.
2.
Second, the government alleges that Williams agreed to—-and
personally

carried

out—-the

predicate

racketeering

act

of

extortion by facilitating the collection of certain dues from
UBN members.

Extortion, as defined by 18 U.S.C. § 1951, is a

predicate racketeering act under RICO.

Id. § 1961(1).

Under

Section 1951, extortion “means the obtaining of property from
another, with his consent, induced by wrongful use of actual or
threatened force, violence, or fear, or under color of official
right.”

Id. § 1951(b)(2).

The government’s principal evidence supporting Williams’s
alleged

involvement

Williams’s
address.

in

professional

extortion
email

was

address

an
to

email
her

sent

personal

from
email

The email—-styled as a letter entitled “Reaching Back

for the Iced Out Soldiers”—-discusses a “mandatory” dues program
for G-Shine members, through which they “reach back” to support

29

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incarcerated

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gang

members

Pg: 30 of 36

and

their

families.

J.A.

1685b. 4

According to the message, higher-ranking G-Shine members owed
fifty dollars each month in dues.
failed

to

pay

their

dues

would

Higher-ranking members who
“be

demoted.”

Members without rank owed twenty dollars a month.

J.A.

1685b–c.

The dues were

to be “collected and recorded by Brazy (Sam) or Sam as most of
you know her.”

J.A. 1685c.

The letter concludes by stating

that

being

will

“any

games

admin[i]stered.”

played

J.A. 1685c.

result

to

sanctions

being

It was signed using nicknames and

titles associated with Wilkinson.

The government did not put

forward any evidence establishing that Williams—-or anyone else—
-ever sent the letter to G-Shine members.
The

government’s

evidence

regarding

the

Reaching

Back

initiative failed to establish that Williams agreed that actual
or threatened force, violence or fear would be used to induce
Reaching Back dues payments, as is required to prove extortion
under

Section

1951.

In

particular,

the

only

“sanction”

identified in the letter was “demotion,” which does not entail
force, violence or fear.
That

the

government

introduced

substantial

evidence

that

UBN members engaged in violent conduct unrelated to the Reaching
4

The terms “iced out soldiers” or “iced out medallions,”
both of which are used in this letter, refer to incarcerated
members of the gang. J.A. 288–89.

30

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Back program does not change this analysis.

Just

as RICO “does

not ‘criminalize mere association with an enterprise,’” Mouzone,
687 F.3d at 218, so too association with a violent organization
does not give rise to extortion as a RICO predicate, absent a
showing that threats or violence or the organization’s violent
reputation was used to unlawfully obtain the allegedly extorted
payments or property.

See United States v. Local 1804-1, Int’l

Longshoremen’s Ass’n, 812 F. Supp. 1303, 1326, 1340 (S.D.N.Y.
1993), aff’d sub nom United States v. Carson, 52 F.3d 1173 (2d
Cir.

1995)(finding

insufficient

evidence

for

certain

alleged

extortions to constitute RICO predicates due to lack of evidence
of direct or indirect threats or evidence that alleged victims
made

payments

in

fear,

notwithstanding

that

the

government

produced evidence that defendants were associated with mafia and
engaged in other acts of extortion by virtue of fear created by
that association).

Here, the government introduced no evidence

connecting the Reaching Back initiative to UBN’s other violent
conduct,
reputation

let
for

alone

any

violence

evidence
to

induce

that

UBN

Reaching

relied
Back

on

its

payments.

Accordingly, we conclude the government failed to put forward
sufficient evidence that Williams agreed that UBN would commit
the proposed RICO predicate of extortion.

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3.
Regarding

the

alleged

predicate

acts

of

murder,

the

government asserts that Williams agreed that UBN members would
murder three individuals: Dread, Robbs and Star.
conspiracy

to

commit

intent to kill.

murder,

the

conspirators

To engage in a
must

have

an

See State v. Brewton, 618 S.E.2d 850, 856–58

(N.C. App. 2005) (holding that premeditation and deliberation
are necessary elements of an agreement to commit murder); cf.
State v. Coble, 527 S.E.2d 45, 46-48 (N.C. 2000) (holding that
attempted second-degree murder is not a crime because “to commit
the crime of attempted murder, one must specifically intend to
commit murder”). 5
The government’s evidence related to Dread amounted to a
single phone call in which Williams passed along an order from
Wilkinson

that

gang

members

should

5

not

“push

the

button

on

The indictment in this case identified murder chargeable
under N.C. Gen. Stat. §§ 14-17, 14.2-4 as one of UBN’s
racketeering activities.
See 18 U.S.C. § 1961(1)(A) (listing
murder, if “chargeable under State law and punishable by
imprisonment for more than one year” as a racketeering
activity).
Therefore, we rely on North Carolina law to define
murder and conspiracy to commit murder.
However, we note that
even if the alleged agreements to commit murder occurred in
another jurisdiction, RICO requires that the defendant agree
“knowingly and willfully,” Mouzone, 687 F.3d at 218, that a coconspirator will commit an act that “if completed, would satisfy
all of the elements of a substantive criminal offense.”
Salinas, 522 U.S. at 65.
In other words, an individual who
agrees that a co-conspirator will murder someone must know that
the agreement’s objective is to kill the victim.

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Dread.”

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J.A.

1664.

defined at trial.

The

Pg: 33 of 36

term

“push

the

button”

was

never

But even assuming that it does mean to kill

someone, the evidence suggests—-at most—-that Williams ordered
Jenkins not to kill Dread.

This does not amount to substantial

evidence that Williams agreed that a UBN member would murder
Dread.

Accordingly,

the

alleged

conspiracy

to

murder

Dread

cannot serve as a predicate for Williams’ RICO conviction.
The

alleged

conspiracy

to

murder

Robbs

similar lack of evidence of intent to kill.
prison,

Star

claimed

she

had

a

copy

suffers

from

a

While Robbs was in

of

a

North

Carolina

Department of Corrections (“DOC”) report discussing an assault
on Robbs by another inmate.
Williams,

said

that

Robbs

The report, which Star emailed to
“did

not

fight

statement to the DOC after the incident.

back”

and

made

J.A. 1687.

a

This

report hurt Robbs’s reputation because it indicated that he was
cooperating

with

investigators—-or

strictly forbidden by UBN.

“snitching”—-which

was

J.A. 463.

On June 6, 2011, Williams and Barnett spoke on the phone
about Robbs’s alleged snitching.
had

spoken

to

Wilkinson

about

the

Williams explained that she
report

said, “if that’s so, [Robbs is] Double-O.”

and

that

Wilkinson

J.A. 1627.

Williams

clarified that “if this is proven differently”—-i.e., if the
report was a fake—-“that girl [Star] . . . definitely is, is
food.”

J.A. 1627.

Williams concluded that they had to “just
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get to the bottom of it,” and Barnett agreed.

J.A. 1627–28.

During a June 14, 2011, phone call, Williams told Barnett that
she had concluded that Star’s report was fake.
Williams

explained

that

making Robbs “double-O.” 6
None

of

this

Wilkinson

had

Accordingly,

“rescinded”

the

order

J.A. 1633.

evidence

established

that

Williams-or

any

other member of the alleged conspiracy-had the requisite intent
to kill Robbs.

Although Williams said that Wilkinson told her

Robbs was “Double-O” if the DOC report turned out to be true,
the

government

meant

that

did

not

someone

was

present

any

targeted

evidence

for

murder.

that

“Double-O”

Instead,

evidence established that “Double-O” meant a “mission.”
285, 361, 432, 681–82.

the
J.A.

Although a mission might be to punish

someone or make them “food,” it could also mean to follow any
other

order,

legal

or

illegal.

With

no

other

evidence

suggesting that Williams agreed that Robbs would be killed—-and
not punished, demoted, or assaulted—-no rational trier of fact
could find, beyond a reasonable doubt, the requisite intent to
murder Robbs.
* * * * *

6

According to trial testimony, Robbs was never assaulted as
a result of being labeled “Double-O” or as punishment for his
conduct in relation to the prison attack.

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The government, therefore, failed to introduce substantial
evidence supporting the purported RICO predicate acts of robbery
and drug trafficking, extortion, and conspiracy to murder Dread
and

Robbs.

government

Accordingly,
introduced

even

evidence

if

we

were

sufficient

to

to

conclude

establish

the
that

Williams agreed that UBN members would murder Star--the only
remaining

predicate

reasonable

trier

of

offense
fact

asserted

could

have

by

the

concluded

government--no
that

Williams

knowingly and intentionally agreed to the commission of the two
predicate acts necessary to establish pattern of racketeering
activity. 7

Accordingly, we reverse Williams’s conviction for

conspiring to violate RICO. 8
V.
For the reasons stated above, we find no reversible error
pertaining to Barnett’s convictions or sentence.
government
reasonable
Williams

failed
juror

agreed

to
to

to

introduce

conclude
the

evidence

beyond

commission

of

a

However, the

sufficient

reasonable
at

least

for

doubt

two

a

that

predicate

7

Because Williams’ alleged agreement to murder Star cannot,
by itself, support her RICO conviction, we do not decide whether
the government introduced substantial evidence that Williams
agreed to that UBN members would murder Star.
8

Because we reverse Williams’s conviction, we do not decide
whether the district court procedurally erred in determining her
sentence.

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racketeering acts forming a pattern of racketeering activity.
Therefore, we vacate Williams’s RICO conspiracy conviction.
AFFIRMED IN PART AND REVERSED IN PART

36