8 F.4th 801
8th Cir.2021Background
- Haynie, a member of the 40th Avenue Crips in Omaha, was indicted in June 2017 on a RICO conspiracy (Count I) and three counts arising from an alleged attempted shooting (Counts II–IV).
- Trial in February 2018: jury convicted Haynie on the RICO conspiracy (Count I) and acquitted him on Counts II–IV; district court sentenced him to 84 months’ imprisonment (concurrent with state time).
- At trial, the court instructed the jury that state-law criminal attempt could count as racketeering activity, and one instruction mistakenly referred to Count III (attempted assault with a dangerous weapon) as a RICO predicate.
- On appeal Haynie argued (1) the instructions improperly allowed state-law attempt and Count III as racketeering predicates and (2) the district court miscalculated the Guidelines by treating aggravated assault with a firearm as underlying racketeering conduct at sentencing.
- The Eighth Circuit affirmed the conviction (finding no reversible instruction error) but vacated the sentence and remanded for resentencing because the court improperly treated aggravated assault as racketeering in computing the Guidelines.
Issues
| Issue | Haynie's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether state-law attempt can be a RICO predicate | Attempt to commit a state offense cannot qualify as racketeering under §1961(1) | Inchoate offenses that "involve" an enumerated offense may qualify; "involving" is expansive | Held: Instruction allowing criminal attempt as racketeering was proper; affirmed |
| Whether erroneous reference to Count III in Instruction No. 35 required a new trial | The cross-reference to Count III (assault with a dangerous weapon) misled jury into relying on a non‑predicate offense | Govt conceded the reference was a mistake but argued any error was harmless (jury acquitted Count III; strong drug evidence supported RICO) | Held: Even if error existed, Haynie failed plain‑error showing because acquittal on Count III and other strong predicates make it not reasonably probable the error affected the verdict; affirmed |
| Whether sentencing calculation erred by treating aggravated assault with a firearm as underlying racketeering | Inclusion of aggravated assault as racketeering activity inflated the Guidelines range | Govt argued the error was harmless | Held: Error — aggravated assault with a firearm is not a racketeering activity for §2E1.1; harm not shown; sentence vacated and remanded for resentencing |
| Misc. sentencing issues: credit under §5G1.3, sentence start date, gang‑association special condition | Requested full credit for state time, argued district court erred by ordering sentence to "start today," and challenged vague gang‑association condition | Govt defended sentencing choices | Held: Court declined to decide credit issue on appeal (to be addressed at resentencing); noted only BOP determines commencement of federal sentence; remanded to reconsider special condition in light of precedent on vagueness |
Key Cases Cited
- Thetford v. United States, 806 F.3d 442 (8th Cir.) (standard of review for jury instructions)
- Olano v. United States, 507 U.S. 725 (U.S.) (plain‑error review requirements)
- Boyde v. California, 494 U.S. 370 (U.S.) (instructions assessed in context for likelihood of misleading jury)
- Winn v. United States, 628 F.3d 432 (8th Cir.) (instruction‑evaluation principles)
- Bynum v. United States, 669 F.3d 880 (8th Cir.) ("involving" construed broadly)
- Coleman v. United States, 700 F.3d 329 (8th Cir.) (attempted drug sale as conduct "involving" distribution)
- Darden v. United States, 70 F.3d 1507 (8th Cir.) (inchoate offenses can be RICO predicates)
- Watts v. United States, 519 U.S. 148 (U.S.) (acquitted conduct may be considered at sentencing by preponderance)
- Hayes v. United States, 535 F.3d 907 (8th Cir.) (only BOP determines commencement of federal sentence)
- Wilson v. United States, 503 U.S. 329 (U.S.) (statute on computation of sentence commencement)
- Mayo v. United States, 642 F.3d 628 (8th Cir.) (oral pronouncement of sentence controls when conflict exists)
- Washington v. United States, 893 F.3d 1076 (8th Cir.) (gang‑association condition held unconstitutionally vague)
- Green v. United States, 618 F.3d 120 (2d Cir.) (discussion of statutory definition of "criminal street gang")