US v. Alan Barnett


UNPUBLISHED AUTHORED OPINION filed.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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Appeal: 14-4866 Doc: 67 Filed: 10/12/2016 Pg: 1 of 36 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4866 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ALAN BOYD DONTA BARNETT, a/k/a Big Al,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 Appeal: 14-4866 Doc: 67 Filed: 10/12/2016 Pg: 2 of 36 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 Affirmed in part and reversed in part by unpublished opinion.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 Unpublished opinions are not binding precedent in this circuit. 2 Appeal: 14-4866 Doc: 67 Filed: 10/12/2016 Pg: 3 of 36 WYNN, Circuit Judge: In 2012, the government indicted twenty-eight individuals for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 3 Appeal: 14-4866 Doc: 67 Filed: 10/12/2016 Pg: 4 of 36 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. 4 Appeal: 14-4866 Doc: 67 Filed: 10/12/2016 Pg: 5 of 36 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 5 Appeal: 14-4866 Doc: 67 Filed: 10/12/2016 Pg: 6 of 36 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 6 Appeal: 14-4866 Doc: 67 which affect, participate, Filed: 10/12/2016 interstate directly or or Pg: 7 of 36 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 Appeal: 14-4866 Doc: 67 Filed: 10/12/2016 Pg: 8 of 36 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. 8 Appeal: 14-4866 Doc: 67 Filed: 10/12/2016 Pg: 9 of 36 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 9 Appeal: 14-4866 Doc: 67 Filed: 10/12/2016 Pg: 10 of 36 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 Appeal: 14-4866 Doc: 67 Filed: 10/12/2016 Pg: 11 of 36 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 11 Appeal: 14-4866 Doc: 67 Filed: 10/12/2016 Pg: 12 of 36 (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 12 Appeal: 14-4866 Doc: 67 Filed: 10/12/2016 Pg: 13 of 36 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 Appeal: 14-4866 Doc: 67 Filed: 10/12/2016 (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 Appeal: 14-4866 Doc: 67 Filed: 10/12/2016 Pg: 15 of 36 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) 15 Appeal: 14-4866 Doc: 67 Filed: 10/12/2016 Pg: 16 of 36 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 Appeal: 14-4866 Barnett Doc: 67 does Filed: 10/12/2016 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. 17 Appeal: 14-4866 Doc: 67 Reviewing Filed: 10/12/2016 the remainder Pg: 18 of 36 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 Appeal: 14-4866 Doc: 67 language, Filed: 10/12/2016 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. 19 Appeal: 14-4866 Doc: 67 Filed: 10/12/2016 Pg: 20 of 36 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 20 Appeal: 14-4866 Doc: 67 Filed: 10/12/2016 Pg: 21 of 36 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. 21 Appeal: 14-4866 Doc: 67 Filed: 10/12/2016 Pg: 22 of 36 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). Appeal: 14-4866 Doc: 67 Filed: 10/12/2016 Pg: 23 of 36 “[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 Appeal: 14-4866 Doc: 67 Even Filed: 10/12/2016 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 Appeal: 14-4866 Doc: 67 Filed: 10/12/2016 Pg: 25 of 36 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 Appeal: 14-4866 447. Doc: 67 Filed: 10/12/2016 Pg: 26 of 36 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 Appeal: 14-4866 Doc: 67 commit the Filed: 10/12/2016 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 27 Appeal: 14-4866 infer Doc: 67 that Filed: 10/12/2016 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 Appeal: 14-4866 the Doc: 67 Filed: 10/12/2016 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 Appeal: 14-4866 Doc: 67 incarcerated Filed: 10/12/2016 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 Appeal: 14-4866 Doc: 67 Filed: 10/12/2016 Pg: 31 of 36 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. 31 Appeal: 14-4866 Doc: 67 Filed: 10/12/2016 Pg: 32 of 36 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. 32 Appeal: 14-4866 Doc: 67 Dread.” Filed: 10/12/2016 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 33 Appeal: 14-4866 Doc: 67 Filed: 10/12/2016 Pg: 34 of 36 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. 34 Appeal: 14-4866 Doc: 67 Filed: 10/12/2016 Pg: 35 of 36 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. 35 Appeal: 14-4866 Doc: 67 Filed: 10/12/2016 Pg: 36 of 36 racketeering acts forming a pattern of racketeering activity. Therefore, we vacate Williams’s RICO conspiracy conviction. AFFIRMED IN PART AND REVERSED IN PART 36

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