51 F.4th 578
5th Cir.2022Background
- Four defendants (Telly Hankton, Andre Hankton, Walter Porter, Kevin Jackson) were leaders/members of the Hankton Enterprise, a New Orleans street gang engaged in drug trafficking and violent retaliation.
- A turf war (2007–2010) produced multiple murders; key events at trial included the murders of Darnell Stewart and Jesse Reed, an attempted murder of a daiquiri-shop owner, and the killing of that owner’s brother.
- A federal grand jury returned a 24-count indictment (RICO, drug, firearms, and VICAR charges); after a three‑week trial the jury convicted on many counts and acquitted on others; district court imposed lengthy sentences and restitution orders.
- On appeal the defendants raised numerous issues, including whether §924(c)/§924(j)/§924(o) convictions could rest on a RICO‑conspiracy predicate (post‑Davis), sufficiency of evidence, evidentiary rulings (identifications, forfeiture‑by‑wrongdoing, rap video), competency and neuropsych testing, severance, grand‑jury leak, unanimity instruction, and restitution.
- The Fifth Circuit vacated and remanded the defendants’ §924 convictions and related restitution (because RICO conspiracy is not a crime of violence and the verdicts did not specify predicates), affirmed most other rulings, and remanded for further proceedings on the vacated counts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of §924(c)/(j)/(o) convictions when jury could rely on RICO conspiracy as predicate | Govt argued convictions stand or remand is appropriate; (conceded some error) | RICO conspiracy is not a crime of violence after Davis; convictions invalid if jury could have relied on RICO predicate | Vacated §924 convictions for Telly, Andre, Porter and remanded because verdict forms didn’t specify predicate and RICO is non‑violent under Davis |
| Sufficiency of evidence for Andre’s §924 convictions (drug‑conspiracy predicate only) | Govt: circumstantial proof tied Andre to drug conspiracy (family ties, joint murder furthered enterprise) | Andre: insufficient evidence; he was a merchant mariner, did not sell drugs, acted for revenge not to further drug trafficking | Court: evidence sufficient to permit retrial on §924 counts; declined to acquit; dissent would reverse for insufficiency |
| Restitution under MVRA based on RICO conviction | Govt sought restitution for victims as crimes of violence | Defendants: RICO conspiracy is not a crime of violence, so restitution improper | Vacated and remanded restitution orders for Telly, Andre, and Porter (plain‑error analysis for Porter) |
| Admission of eyewitness photo arrays (Stewart ID) | Govt: arrays were not impermissibly suggestive | Telly: photos unduly suggestive (beard, lighting, clothing) | Denial of suppression affirmed; no clear error — arrays not grossly dissimilar |
| Admission of Hasan Williams’s statements (recorded statement and grand‑jury testimony) under forfeiture by wrongdoing | Govt: Williams unavailable because defendants caused/acquiesced in his murder; Rule 804(b)(6) preponderance met | Telly: insufficient proof, needed hearing, Confrontation Clause violation | Admission affirmed; preponderance standard met and no abuse of discretion |
| Admission of rap video as adoptive admission of Porter | Govt: Porter’s gestures in clip adopted lyrics referencing murders | Telly: lyrics are artistic, not admissions; improper hearsay and deprivation of cross‑examination | Admission affirmed as adoptive admission; any error harmless given other evidence |
| Denial of Porter’s request for neuropsych testing and competency issues | Govt: district court had adequate evaluations showing competence | Porter: needed neuropsychological testing; denial deprived him of expert assistance | Denial affirmed; district court did not abuse discretion and collateral estoppel bars relitigation of prior competency rulings |
| Motions to sever (Telly, Porter, Jackson) | Govt: joint trial proper for conspiracy evidence and judicial economy | Defendants: prejudice from spillover and antagonistic defenses | Denial affirmed; no abuse of discretion—limiting instructions and rulings sufficient |
| Grand‑jury leak and scope of evidentiary hearing | Defendants: leak tainted grand jury; wanted expanded hearing and reporter testimony | Govt conceded leak but argued no prejudice and subsequent superseding indictment cured error | Held largely moot for operative (third) superseding indictment; district court didn’t abuse discretion in hearing scope and defendants failed to show prejudice |
| Jury unanimity on alternate theories (principal vs aider/abettor) | Defendants: jury must be unanimous on whether convicted as principal or aider/abettor | Govt: both theories are legally equivalent routes to conviction; no separate unanimous finding required | No plain error; unanimity instruction not required because principal and accomplice theories merge for verdict purposes |
| Sufficiency of evidence for Jackson (RICO and VICAR for Reed murder) | Govt: phone records, witness testimony, payments, proximity establish involvement | Jackson: evidence unreliable and insufficient | Convictions affirmed; evidence sufficient when viewed in light most favorable to verdict |
Key Cases Cited
- United States v. Davis, 139 S. Ct. 2319 (2019) (holding certain predicate crimes do not qualify as crimes of violence for §924(c) purposes)
- United States v. Jones, 935 F.3d 266 (5th Cir. 2019) (vacating §924 convictions where jury could have relied on RICO‑conspiracy predicate)
- United States v. McClaren, 13 F.4th 386 (5th Cir. 2021) (plain‑error review and §924(c) analysis)
- Puckett v. United States, 556 U.S. 129 (2009) (plain‑error standard elements)
- Molina‑Martinez v. United States, 578 U.S. 189 (2016) (reasonable‑probability standard for outcome‑affecting error)
- Rosemond v. United States, 572 U.S. 65 (2014) (aiding and abetting mens rea for §924(c))
- Giles v. California, 554 U.S. 353 (2008) (forfeiture by wrongdoing doctrine and Confrontation Clause)
- Davis v. Washington, 547 U.S. 813 (2006) (forfeiture‑by‑wrongdoing principles and testimonial statements)
- Manson v. Brathwaite, 432 U.S. 98 (1977) (constitutional standard for eyewitness identification)
- Brady v. Maryland, 373 U.S. 83 (1963) (prosecutor’s duty to disclose exculpatory/impeachment evidence)
- Zafiro v. United States, 506 U.S. 534 (1993) (severance and mutually antagonistic defenses)