966 F.3d 828
D.C. Cir.2020Background
- In Nov. 2000 a grand jury indicted Larry Wilkerson and others on a large narcotics/RICO conspiracy spanning the 1990s; charges included RICO conspiracy, narcotics conspiracy, multiple counts of aiding and abetting first‑degree murder, and CCE murder counts.
- Many codefendants pleaded or were tried in groups; Wilkerson was tried separately, convicted by a jury on Sept. 22, 2004, and later sentenced to life imprisonment.
- During deliberations a juror (Juror 0552) sent a note saying she "strongly disagree[d] with the laws and instructions" and could not follow them; the district court questioned her, concluded she intended to disregard the law (not that she doubted the evidence), and replaced her with an alternate.
- Wilkerson moved to dismiss the RICO conspiracy count as time‑barred (5‑year statute), disputing (1) that narcotics conspiracy is a RICO predicate and (2) that the indictment alleged sufficient predicate acts within the limitations period; the government had retyped indictments that ultimately pled seven predicate acts, including narcotics conspiracy post‑1995.
- On appeal Wilkerson raised: (A) Sixth Amendment challenge to juror dismissal; (B) RICO statute‑of‑limitations and predicate‑act arguments; and (C) multiple trial‑error claims (prosecutorial statements, Pinkerton instruction, sufficiency of some CCE murder evidence, Brady/inconsistent‑theory claims, and alleged Fifth Amendment violation relating to a government witness). The D.C. Circuit affirmed.
Issues
| Issue | Plaintiff's Argument (United States) | Defendant's Argument (Wilkerson) | Held |
|---|---|---|---|
| 1) Whether dismissing a juror during deliberations for refusing to follow the law violates the Sixth Amendment | Court may remove a juror who intends to disregard the law to protect rule of law; judge may question juror and replace if good cause. | Dismissal violated right to unanimous jury; juror dismissal should be reversed because it may reflect evidentiary doubt rather than refusal to follow law. | Court held juror dismissal permissible: intent to disregard law is valid ground; here record supported finding juror disagreed with law, not evidence, so replacement was proper. |
| 2) Whether narcotics conspiracy is a RICO predicate and whether RICO conspiracy was time‑barred | Narcotics conspiracy (21 U.S.C. §§841,846) fits §1961(1)(D) and was alleged within the limitations window; RICO conspiracy continues until termination/withdrawal so indictment within 5 years of conspiracy end is timely. | Argued narcotics conspiracy is not a §1961 predicate and, even if it is, government alleged only one predicate act within limitations (not two) so RICO conspiracy is time‑barred. | Court held narcotics conspiracy is a §1961(1)(D) predicate and RICO conspiracy is timely because conspiracy offense continues until termination or withdrawal; indictment alleged participation within the limitations period. |
| 3) Whether statements by witnesses/prosecutor and the Pinkerton instruction required reversal or dismissal of conspiracy counts | Prosecutor’s references and a Pinkerton charge did not fatally prejudice Wilkerson; trial court’s struck testimony and instructions cured errors; Pinkerton appropriate once conspiracy submitted. | Statements (and the single struck testimony) and Pinkerton instruction unfairly prejudiced him and required relief. | Court rejected these claims: no plain error from closing reference; Pinkerton instruction permissible where conspiracy sent to jury. |
| 4) Sufficiency of evidence for two CCE murder counts; Brady/inconsistent‑theory; Fifth Amendment claim about witness Alston | Evidence connected murders to the enterprise sufficiently for CCE counts; Lee proffer did not create Brady or inconsistency problem because individuals may join multiple conspiracies; Wilkerson lacks standing to challenge Alston’s asserted Fifth Amendment invocation. | Challenges: insufficient link between murders and enterprise; Lee proffer shows inconsistent theories and material suppressed Brady evidence; Alston’s testimony was obtained in violation of his Fifth Amendment rights. | Court held evidence sufficient for CCE murders; Lee proffer immaterial and not inconsistent or Brady‑dispositive; Wilkerson lacked standing to complain about Alston’s privilege. |
Key Cases Cited
- Smith v. United States, 568 U.S. 106 (2013) (RICO conspiracy offense continues until conspiracy termination or defendant’s withdrawal)
- Sparf v. United States, 156 U.S. 51 (1895) (juries must take law from the court and apply it to facts)
- United States v. Dougherty, 473 F.2d 1113 (D.C. Cir. 1972) (no constitutional right to jury nullification instruction)
- United States v. Brown, 823 F.2d 591 (D.C. Cir. 1987) (juror dismissal improper if record discloses any appreciable possibility request stems from view of evidentiary sufficiency)
- United States v. Thomas, 116 F.3d 606 (2d Cir. 1997) (court has duty to prevent jury nullification when possible)
- United States v. Weisman, 624 F.2d 1118 (2d Cir. 1980) (§1961(1)(D)’s broad “any offense involving” language can encompass related conspiracies)
- United States v. Echeverri, 854 F.2d 638 (3d Cir. 1988) (narcotics‑conspiracy predicate treated as racketeering activity)
- United States v. Saadey, 393 F.3d 669 (6th Cir. 2005) (RICO conspiracy timely if charged within five years of conspiracy’s termination)
- United States v. McGill, 815 F.3d 846 (D.C. Cir. 2016) (standard of review and precedents about juror dismissal and trial errors)
- United States v. Henning, 286 F.3d 914 (6th Cir. 2002) (Pinkerton instruction proper when conspiracy charge is submitted to jury)