UNITED STATES OF AMERICA v. DANIEL LAMONT MATHIS, a/k/a Gunna, a/k/a Mooch, a/k/a D-Man; UNITED STATES OF AMERICA v. MERSADIES LACHELLE SHELTON, a/k/a Lady Gunns, a/k/a Maisha Love Uhuru; UNITED STATES OF AMERICA v. SHANTAI MONIQUE SHELTON, a/k/a Tai, a/k/a Lady Blaze, a/k/a Boss Lady; UNITED STATES OF AMERICA v. KWELI UHURU, a/k/a Travis Leon Bell, a/k/a K. Gunns, a/k/a Black Wolf, a/k/a Babi; UNITED STATES OF AMERICA v. ANTHONY DARNELL STOKES, a/k/a Face, a/k/a Black Face, a/k/a Kenyata Baraka; UNITED STATES OF AMERICA v. HALISI UHURU, a/k/a Arthur Lee Gert Wright, a/k/a Gritty, a/k/a Bones, a/k/a Big Homey
Nos. 16-4633, 16-4635, 16-4637, 16-4641, 16-4837, 16-4838
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
Decided: July 31, 2019
PUBLISHED. Argued: January 24, 2018
Appeals from the United States District Court for the Western District of Virginia, at Charlottesville. Glen E. Conrad, District Judge. (3:14-cr-00016-GEC-JCH-1; 3:14-cr-00016-GEC-JCH-2; 3:14-cr-00016-GEC-JCH-3; 3:14-cr-00016-GEC-JCH-4; 3:14-cr-00016-GEC-JCH-6; 3:14-cr-00016-GEC-JCH-7)
Before KEENAN and DIAZ, Circuit Judges, and DUNCAN, Senior Circuit Judge.
Affirmed in part, vacated in part, and remanded by published opinion. Judge Keenan wrote the opinion, in which Judge Diaz and Senior Judge Duncan joined.
ARGUED: Frederick T. Heblich, Jr., OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charlottesville, Virginia, for Appellant Daniel Lamont Mathis. Paul Graham Beers, GLENN, FELDMANN, DARBY & GOODLATTE, Roanoke, Virginia, for Appellant Anthony Darnell Stokes. Christopher R. Kavanaugh, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee. ON BRIEF: Larry W. Shelton, Federal Public Defender, Roanoke, Virginia, Geremy C. Kamens, Federal Public Defender, Alexandria, Virginia, Paul G. Gill, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia; Aaron Lee Cook, Harrisonburg, Virginia; David Anthony Eustis, Charlottesville, Virginia; Rhonda E. Quagliana, Charlottesville, Virginia; Michael T. Hemenway, Charlottesville, Virginia; Sherwin John Jacobs, Harrisonburg, Virginia, for Appellants. Rick A. Mountcastle, Acting United States Attorney, Roanoke, Virginia, Ronald M. Huber, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for Appellee.
This case involves the prosecution of several members of a violent street gang known as the Double Nine Goon Syndikate (DNGS). After a multi-week trial, a jury convicted Halisi Uhuru (Halisi), Anthony Stokes (Stokes), Kweli Uhuru (Kweli), Mersadies Shelton (Mersadies), Shantai Shelton (Shantai), and Daniel Mathis (Mathis) (collectively, the defendants) of conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act (RICO),
Mathis, Shantai, Mersadies, and Kweli (collectively, the capital defendants) also were convicted, in relation to the murder of an off-duty police officer, of violent crimes in aid of racketeering activity in violation of
On appeal, the defendants raise several challenges concerning their trial and sentences. Upon our review of these arguments, we vacate in part with respect to
I.
The Bloods is a nationwide street gang.2 Groups of Bloods are organized into “sets” or smaller, individual groups of Bloods. One of these sets, DNGS, was founded by Halisi, Stokes, and Kweli in 2013 during their incarceration for crimes unrelated to the present case.
DNGS operates through a hierarchical structure. Halisi served as “high OG” or “Double OG,” DNGS‘s leader. Stokes was second in command as “low [OG].” Kweli also held a leadership role with the rank of “OG,” “Big Homey,” or a “Low 020.” Another DNGS leader was responsible for operations conducted by incarcerated DNGS members. These four individuals composed DNGS‘s “Roundtable,” or leadership council. Reporting to the council were members organized by rank, including sergeant, lieutenant, and major. New DNGS members held the title of “soldier.”
Upon gaining membership into the gang, members were given notebooks to study that included the rules and the history of the Bloods gang and the DNGS set. Gang members communicated using certain codes and phrases in an effort to ensure that their communications remained incomprehensible to law enforcement authorities and others.
Members outwardly reflected their association with the Bloods and DNGS by wearing red clothing items, including red bandanas, and by obtaining tattoos reflecting gang insignia.
DNGS financed itself through the proceeds of various illegal activities undertaken by members, including armed robberies, home invasions, and burglaries. Members were expected to “put in work” to advance their rank in the gang, that is, to commit crimes in order to show their commitment and loyalty. If a member refused to “put in work,” that member likely would have been “violated,” or beaten.
Both while imprisoned and after their release, Stokes, Kweli, and Halisi began recruiting new members to the newly formed DNGS set, including Shantai, Mersadies, and Mathis. As the gang‘s membership grew, DNGS members “put in work” committing a series of crimes from late 2013 into early 2014. This spree of illegal activities included a number of armed robberies of convenience stores, home invasions, burglaries, and other crimes committed in central Virginia.
On the night of January 31, 2014, the capital defendants attacked Kevin Quick (Quick), an off-duty reserve captain with the Waynesboro, Virginia, Police Department, as he was departing his vehicle. The four defendants compelled Quick back into his vehicle at gunpoint, drove him to a nearby ATM, and forced him to withdraw money from his account. After learning that Quick was a police officer, and realizing that Quick had “already seen their face[s],” the capital defendants decided that “it was too late . . . to let [Quick] go.” They drove Quick to a remote area off the main roadway, removed Quick from the car, and fired a single shot into Quick‘s head, killing him and leaving his body behind.3
The capital defendants left the hotel the next morning and drove in Quick‘s vehicle to Front Royal, Virginia. Concerned that the vehicle could link them to the murder, the capital defendants bought bleach, rubber gloves, and a jug to hold gasoline for setting the vehicle on fire. Leaving Kweli behind, Mathis, Shantai, and Mersadies drove the vehicle to a friend‘s house where they cleaned the vehicle with bleach.
Later that day, Mathis and Mersadies committed a robbery. During the robbery, Mathis fired one shot from his pistol. Investigators later recovered a bullet and a cartridge from the scene of this robbery and matched these items through forensic testing to the weapon used in Quick‘s murder and a previous robbery.
Mathis and Mersadies quickly left the scene of the robbery in Quick‘s vehicle, which malfunctioned shortly thereafter. They pushed the disabled vehicle to a nearby driveway and doused the vehicle with additional bleach. After receiving a call from Mersadies asking for help, Halisi and Stokes decided that Stokes would drive to meet Mersadies and Mathis, as well as Shantai, who had reunited with Mersadies and Mathis. Once Stokes reached the group, Mathis and Shantai told him that Quick‘s vehicle needed to be destroyed, but Stokes stated that they would “find a way to get rid of it the next day.”
Stokes and Halisi later obtained a hotel room in which Mersadies, Mathis, and Shantai could “hide out.”4 As Quick‘s disappearance became publicized, Mersadies, Mathis, and Shantai discussed absconding to Montana to avoid being arrested. Mersadies informed Kweli of these discussions through frequent text messages.
While Kweli was attempting to have Quick‘s vehicle destroyed, law enforcement officers located the abandoned vehicle. Evidence technicians recovered the following evidence from the vehicle: Kweli‘s fingerprint on Quick‘s driver‘s license, which was found in Quick‘s wallet inside the vehicle; fingerprints belonging to Mathis, Shantai, and Mersadies on the vehicle or on items within the vehicle; Mersadies’ DNA on a piece of chewing gum left in the vehicle‘s ashtray; and Mathis’ DNA on rubber gloves left in the vehicle.
Once news media reported that Quick‘s vehicle had been recovered, the defendants planned their escape to Montana and destroyed other evidence related to their crimes. Halisi ordered Leslie Casterlow (Casterlow), who frequently acted as a drug courier for DNGS, to “get rid of” Quick‘s ATM card. Kweli ordered the other defendants to delete any incriminating text messages. Also, Shantai and one other DNGS member disassembled the gun used to kill Quick and placed the gun components in a pillowcase.
A day after Quick‘s vehicle was recovered, Mathis, Shantai, and Mersadies were arrested at the hotel. After hearing news of the arrest, Halisi had his girlfriend destroy both his and Casterlow‘s phones. Casterlow, who still had possession of the murder weapon parts, hid those items behind a dumpster at their hotel.
Stokes returned to Virginia to pick up Halisi, Halisi‘s girlfriend, and Casterlow. Stokes told Casterlow to retrieve the murder weapon components from behind the dumpster and to drive the group to a nearby interstate highway. As Casterlow drove along the highway, Stokes threw the murder weapon parts over the wall bordering the road. Thereafter, Halisi, Stokes, and Casterlow were arrested at the hotel. Law enforcement officers later recovered the weapon parts with Casterlow‘s assistance.
The defendants were charged in a 36-count indictment with conspiring to participate in a racketeering enterprise that included the commission of assaults, robberies, burglaries, kidnapping, carjacking, murder, drug trafficking, and obstruction of justice. After the jury was sworn during the first trial, the district court was informed that Kweli had removed from the courtroom a jury list containing identifying information about the jury panel members and their families. The district court thereafter granted the defendants’ motion for a mistrial.
A second trial was held in the Roanoke Division of the Western District of Virginia following a request by some of the defendants to change venue. The district court also granted the government‘s request to empanel an anonymous jury. At the close of the second trial, a jury found the defendants guilty on all counts. The district court later sentenced the capital defendants each to serve a term of life imprisonment. Halisi and Stokes received sentences of 144 and 160 months’ imprisonment, respectively. Several other sentences were imposed on the various defendants. This appeal followed.
II.
A.
The defendants first argue that the district court committed reversible error in deciding to empanel an anonymous jury. According to the defendants, there was no evidence supporting the district court‘s finding that the defendants had the capacity to harm or to intimidate the jurors.
We review a district court‘s decision to empanel an anonymous jury for abuse of discretion. United States v. Dinkins, 691 F.3d 358, 371 (4th Cir. 2012). In a capital case, a district court may empanel an anonymous jury only after determining “by a preponderance of the evidence that providing the [juror] list ... may jeopardize the life or safety of any person.” Id. at 372 (citing
A district court must base its decision to empanel an anonymous jury on evidence in the record, rather than solely on the allegations in the indictment. Id. at 373. Use of an anonymous jury is appropriate “only in rare circumstances when two conditions are met: (1) there is strong reason to conclude that the jury needs protection from interference or harm, or that the integrity of the jury‘s function will
To determine whether there are “strong reason[s]” for empaneling an anonymous jury, we consider five factors:
- the defendant‘s involvement in organized crime,
- the defendant‘s participation in a group with the capacity to harm jurors,
- the defendant‘s past attempts to interfere with the judicial process,
- the potential that, if convicted, the defendant will suffer a lengthy incarceration and substantial monetary penalties, and
- extensive publicity that could enhance the possibility that jurors’ names would become public and expose them to intimidation or harassment.
Id. at 373 (citing United States v. Ross, 33 F.3d 1507, 1520 (11th Cir. 1994)). These factors are not exhaustive but are meant to provide guidance in the district court‘s fact-specific inquiry. Id.
In the present case, during the first trial, the district court raised the question whether use of an anonymous jury would be appropriate. When the defendants stated their opposition, the court took no further action. However, as noted above, the court later received information that Kweli had removed the jury panel list containing the members’ personal information and had kept the list overnight in the jail. After the court informed the jury members that the jury list had been retained by a defendant overnight, some of the defendants moved for a mistrial, which the court granted.
In view of these events, the government filed a motion at the beginning of the second trial requesting an anonymous jury. The district court granted the government‘s motion.
Applying the standards outlined in Dinkins and reviewing the district court‘s reasoning, we conclude for several reasons that the district court did not abuse its discretion in having the case heard by an anonymous jury. First, the indictment alleged that the defendants were members of a violent street gang and were involved in a number of violent criminal offenses, including witness tampering by murder. The record contained sworn statements by various cooperating witnesses and DNGS members corroborating these allegations. This evidence strongly suggested that the defendants had associates who were not incarcerated and could intimidate or harm the jurors. See Ross, 33 F.3d at 1520.
Second, FBI special agent Scott Cullins expressed to the court concerns about juror safety given the gang‘s “history of not only retribution, but also preventative actions.” Moreover, Deputy United States Marshal Mark Haley informed the court that at least two defendants, Kweli and Halisi, had continued their DNGS recruitment efforts from jail while awaiting trial. The circumstances leading to the mistrial thus more than justified the court‘s concern for juror safety. And third, if convicted, several of the defendants faced lengthy incarceration and substantial penalties that may have induced them to intimidate the jury in an attempt to influence the outcome of the trial. See id. at 1520-21.
We also observe that the district court adopted reasonable safeguards to minimize the risk that the defendants’ constitutional rights would be infringed by the use of an anonymous jury. Dinkins, 691 F.3d at 378. The court provided the venire members with a neutral, non-prejudicial explanation of its decision that minimized the danger of prejudice to the defendants. See United States v. Hager, 721 F.3d 167, 188 (4th Cir. 2013). And the court‘s decision did not
B.
Before the jury heard evidence in the case, the court considered pretrial motions seeking the admission of a number of inculpatory co-conspirator statements. The court ultimately overruled the defendants’ objections and received the statements into evidence during the trial. The defendants argue that the district court erred in admitting three of these statements, because they were not made in furtherance of the charged RICO conspiracy, and their admission violated the defendants’ rights under the Confrontation Clause as detailed in Crawford v. Washington, 541 U.S. 36 (2004). We disagree with the defendants’ arguments.
1.
We review the district court‘s decision to admit co-conspirator statements for abuse of discretion. United States v. Graham, 711 F.3d 445, 453 (4th Cir. 2013). To introduce a co-conspirator‘s statements under
The government proffered that it would establish that the statements were made during and in relation to the broader DNGS racketeering conspiracy, which included Quick‘s murder and the ensuing actions to avoid detection and arrest.6 Shantai made the first challenged statement the morning after Quick‘s murder, giving Anthony White (White), another DNGS member, a detailed account of the kidnapping and murder. This statement included the fact that the capital defendants killed Quick, because “they found out he was a cop.” Both White and Shantai were members of the conspiracy. Although White had not participated in Quick‘s murder, the statement provided information to White on the status of the DNGS criminal enterprise, of which he was a member. See United States v. Mandell, 752 F.3d 544, 552 (2d Cir. 2014) (noting that statements made between co-conspirators to “inform each other as to the progress or status of the conspiracy” are
statements made in furtherance of that conspiracy). Accordingly, Shantai‘s statement to White was admissible as a statement of a co-conspirator made “in furtherance of the conspiracy.”
Kweli made the second challenged statement while he and Halisi were arranging for someone to destroy Quick‘s vehicle. Kweli called Shiquan Jackson
The third challenged statement involves comments Mathis made to his girlfriend, Dierra Lloyd (Lloyd), who was not a DNGS member. After Quick‘s murder, Mathis confessed to Lloyd that he and the other capital defendants “killed a cop.” Mathis also asked Lloyd if she “knew a place where [he] could get rid of [Quick‘s vehicle].”7 Although this statement was not made to a member of the DNGS enterprise, we have recognized that “even casual relationships to the conspiracy” will satisfy the nexus requirement of
2.
We turn to address the defendants’ contention that the admission of the co-conspirator statements violated their rights under the Confrontation Clause. We review de novo this question of law. United States v. Lighty, 616 F.3d 321, 376 (4th Cir. 2010).
The Confrontation Clause protects a defendant‘s right to cross-examine a declarant making a “testimonial” statement. Davis v. Washington, 547 U.S. 813, 821 (2006). Although the Supreme Court has not articulated a precise definition of the term “testimonial,” the Court has provided concrete examples of testimonial evidence. At a minimum, such evidence includes testimony given at a preliminary hearing, before a grand jury, and at a formal trial, as well as statements made during a police interrogation. See Crawford, 541 U.S. at 68. More recently, the Court has explained that a statement is testimonial in nature if the statement was made or procured with the “primary purpose” of creating an “out-of-court substitute for trial testimony.” Ohio v. Clark, 135 S. Ct. 2173, 2180 (2015) (quoting Michigan v. Bryant, 562 U.S. 344, 358 (2011)).
We conclude that the challenged co-conspirator statements were not testimonial in nature. The defendants made the challenged statements to co-conspirators and to Lloyd about criminal activities related
C.
The defendants next contend that the indictment was defective because it charged that Quick was prevented from communicating “to a law enforcement officer,” rather than “to a law enforcement officer . . . of the United States,” as provided in the language of
The defendants concede that their motion to dismiss was untimely but argue that they had good cause for the untimely filing, because some of the defendants’ attorneys were unaware of the alleged defect in the indictment. The defendants alternatively maintain that despite their untimely motion, this Court may review the merits of their argument for plain error, and conclude under that standard that the indictment was defective. We conclude that the defendants failed to show good cause and that, in any event, there was no defect in the indictment.
We review the district court‘s finding of lack of good cause for abuse of discretion. United States v. Soto, 794 F.3d 635, 655 (6th Cir. 2015); cf. United States v. Cowley, 814 F.3d 691, 698 (4th Cir. 2016) (reviewing for abuse of discretion the district court‘s finding that defendant did not establish good cause to rebut the presumption of untimeliness under the Innocence Protection Act). Under
untimely.
We conclude that the district court did not abuse its discretion in finding that the motion was untimely, and that the
A party‘s affirmative decision to delay filing a motion in an attempt to gain a strategic advantage at trial does not amount to good cause for purposes of
More fundamentally, there was no defect, plain or otherwise, in the indictment. Generally, an indictment is sufficient if it “(1) indicate[s] the elements of the offense and fairly inform[s] the defendant of the exact charges and (2) enable[s] the defendant to plead double jeopardy in subsequent prosecutions for the same offense.” United States v. Williams, 152 F.3d 294, 299 (4th Cir. 1998) (citation omitted). The fact that the language at issue in the indictment did not track the precise language of the statute did not constitute error under these circumstances. Id. The indictment detailed the factual basis for the witness tampering charge and cited to the correct statute, fairly apprising the defendants of the crime charged and its required elements. Id. Therefore, we reject the defendants’ claim of error.
D.
The defendants next argue that the district court violated their Fifth Amendment rights by amending the indictment through the court‘s instructions to the jury. According to the defendants, although the indictment alleged that the Bloods gang was the criminal enterprise underlying the RICO charge, the court instead instructed the jury that DNGS was the alleged enterprise.
We do not address the merits of this argument because the defendants invited the claimed error. United States v. Herrera, 23 F.3d 74, 75 (4th Cir. 1994) (“[A] court can not be asked by counsel to take a step in a case and later be convicted of error, because it has complied with such request.” (quoting Shields v. United States, 273 U.S. 583, 586 (1927))).
At the charging conference near the end of the trial, the defendants argued that the jury should be instructed that the alleged enterprise was only the Bloods, and did not include DNGS. The government noted that the indictment referred to the Bloods and DNGS interchangeably and ultimately offered, with the district court‘s approval,
E.
The defendants challenge the sufficiency of the evidence to convict them of the RICO conspiracy under
We will sustain a jury‘s verdict when there is substantial evidence, construed in the light most favorable to the government, supporting the verdict. United States v. Hackley, 662 F.3d 671, 678 (4th Cir. 2011). We address the defendants’ arguments in turn, setting forth additional facts as necessary to decide each argument.
1.
The defendants each were convicted of conspiracy to participate in a racketeering enterprise in violation of
a.
The defendants argue that: (1) DNGS was not an “enterprise,” as the term is used in the RICO statute; and (2) their crimes were “unplanned, disorganized, and spontaneous” and, thus, did not constitute a pattern of racketeering activity. We find no merit in either argument.
The RICO statute defines the term “enterprise” as “any group of individuals associated in fact although not a legal entity.”
Here, the government presented sufficient evidence from which a reasonable jury could conclude that DNGS was an “enterprise,” within the meaning of the RICO statute. DNGS members received tattoos and wore red clothing signifying their membership in the gang, congregated regularly at membership meetings, and had a set of governing rules that members were expected to follow. Members shared a common function and purpose, namely, to enrich members of the gang by “putting in work” through the commission of violent crimes and selling drugs. DNGS members also agreed to provide, and did provide, protection for one another. Although an “enterprise” “need not have a hierarchical structure or chain of command,” id. at 948, the presence of such organizational features provides additional evidence of a functioning “enterprise.” And here, the government‘s evidence established that DNGS had a clearly delineated leadership structure.
Although the RICO statute does not define the phrase “pattern of racketeering activity,” see
At issue here is the relatedness prong of the pattern analysis.13 Racketeering acts are related if they “have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events.” Id. at 240 (citation omitted). In making this determination, we
We conclude that the government sufficiently established a “pattern of racketeering activity.” The government introduced evidence of twelve racketeering acts leading up to Quick‘s kidnapping and murder. Various combinations of DNGS members committed these crimes together. Those crimes shared the common purpose of enriching DNGS members, bolstering the gang‘s reputation for violence, or evading law enforcement authorities. In committing these crimes, the defendants employed firearms, threats of physical force, and actual physical force. The jury could conclude, based on this evidence, that the defendants had engaged in a “pattern of racketeering activity.”
b.
Halisi and Stokes separately argue that the government failed to prove that either of them agreed to the commission of at least two of the charged racketeering acts. The government offered evidence of three categories of racketeering acts: drug trafficking, obstruction of justice, and robbery, in violation of state and federal law.14 Although Halisi and Stokes do not dispute that they conspired to distribute narcotics, they argue that these activities were not related to DNGS and, thus, were not part of the RICO conspiracy. Halisi and Stokes also claim that their acts of obstruction did not constitute racketeering acts, because those acts occurred after the completion of the RICO conspiracy. We disagree with these arguments.
“[A] defendant can conspire to violate RICO and violate [Section] 1962(d) without himself committing or agreeing to commit the two or more acts of racketeering activity.” Mouzone, 687 F.3d at 218 (internal brackets and quotation marks omitted) (citing Salinas v. United States, 522 U.S. 52, 65 (1997)). He need only “agree to pursue the same criminal objective” as that of the enterprise. Salinas, 522 U.S. at 63-64. This agreement is apparent from Halisi and Stokes’ role within DNGS. Both men were the enterprise‘s founders and leaders. Both defendants had a central role in directing the enterprise, which required its members to commit crimes for the gang‘s welfare and support. These facts strongly support the jury‘s conclusion that Halisi and Stokes were actively involved in the RICO conspiracy conducted by DNGS, including the robberies committed by the capital defendants and others.
Abundant evidence showed that DNGS members distributed controlled substances and discussed arrangements for expanding their drug distribution networks at DNGS meetings. Other evidence showed that drug trafficking was done for the benefit of DNGS, and copies of DNGS-related documents introduced at trial reflected a detailed code used by DNGS members to disguise their intended language when discussing narcotics. DNGS members also sought to invest money obtained from robberies and theft into the gang‘s drug distribution network. Thus, the jury could conclude from the evidence that the distribution of controlled substances was a centerpiece of the DNGS criminal enterprise.
The government also produced substantial evidence that the acts of obstruction
2.
The capital defendants argue that the evidence was insufficient to prove that they engaged in witness tampering by murder to prevent Quick from reporting a carjacking offense. In particular, they assert that their witness tampering convictions cannot stand, because the government failed to prove the underlying crime of carjacking. We find no merit in this argument.
The federal witness tampering statute prohibits “kill[ing] another person, with intent to . . . prevent the communication by any person to a law enforcement officer . . . of the United States” of “information relating to the . . . possible commission of a Federal offense.”
3.
Halisi and Stokes contend that the evidence was insufficient to support their convictions for obstruction of justice under
Halisi argues that, because he only instructed other individuals to destroy evidence and did not directly destroy any evidence himself, he did not commit the crime of obstruction of justice.16 We disagree.
Stokes advances a separate challenge to his conviction for obstruction of justice. He argues that: (1) his conviction is invalid because a federal grand jury had not been convened to consider the crimes charged at the time that he purportedly obstructed justice; and (2) the government failed to prove that, at the time of his actions, he contemplated an official proceeding that was federal in nature. We reject both these arguments, which are foreclosed by the plain language of Section 1512.
Section 1512(f)(1) provides, in relevant part, that “[f]or the purposes of this section . . . an official proceeding need not be pending or about to be instituted at the time of the offense.” And Section 1512(g)(1) provides that “[i]n a prosecution for an offense under this section, no state of mind need be proved with respect to the circumstance . . . that the official proceeding . . . is before a judge or court of the United States, a United States magistrate judge, . . . a Federal grand jury, or a Federal Government agency.”
Despite this plain language, however, Stokes maintains that the Supreme Court‘s decision in Arthur Andersen LLP v. United States, 544 U.S. 696 (2005), clarified that the government was required to prove that Stokes contemplated a particular and foreseeable federal grand jury or federal court proceeding. The Supreme Court held in Arthur Andersen that certain other provisions of the witness tampering statute, Section 1512(b)(2)(A) and (B), require that the government prove a “nexus” between the defendant‘s conduct and a foreseeable official proceeding. 544 U.S. at 698, 707-08. We will assume, without deciding, that Section 1512(c)(1) imposed the same burden on the government in the present case, requiring the government to establish a “nexus” between Stokes’ obstructive action and a foreseeable official proceeding. See United States v. Young, 916 F.3d 368, 386 (4th Cir. 2019) (holding that the “nexus” requirement applies to Section 1512(c)(2)). The evidence before us easily satisfied such a requirement.
Rice, who was with Stokes days after Quick‘s murder, testified that Stokes received a call that “the fed—the police had kicked in the door to [the DNGS members’ hotel].” Stokes responded to Rice that the murder weapon was still in Casterlow‘s possession, and that Stokes was “concerned” the gun could be traced “back to the murder” and link him to the crime. The evidence further established that Stokes later took action to dispose of the
Nor was the government required to establish that Stokes contemplated an official proceeding that was federal in nature in order to secure a conviction under Section 1512(c). As quoted above, the language of Section 1512(g)(1) plainly refutes such a contention. See United States v. Phillips, 583 F.3d 1261, 1264-65 (10th Cir. 2009) (holding that in a prosecution under Section 1512(c), “the government need not prove [that] the defendant knew that the official proceeding at issue was a federal proceeding such as a grand jury investigation“). Accordingly, we conclude that the evidence was sufficient to support Stokes’ conviction for obstruction of justice under Section 1512(c)(1).
F.
The defendants next challenge a number of their convictions under
We review de novo the question whether an offense qualifies as a crime of violence. See United States v. McNeal, 818 F.3d 141, 151 (4th Cir. 2016). An offense under Section 924(c) arises when a defendant uses or carries a firearm during or in relation to a “crime of violence.”
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
The Supreme Court recently agreed with the defendants’ argument that the 924(c) residual clause is unconstitutionally vague. United States v. Davis, 139 S. Ct. 2319, 2336 (2019). The Court held that like similarly worded residual clauses struck down in Johnson II, 135 S. Ct. at 2557, and Sessions v. Dimaya, 138 S. Ct. 1204, 1223 (2018), the 924(c) residual clause improperly required the sentencing judge‘s “estimation of the degree of risk posed by a crime‘s imagined ‘ordinary case.‘” Davis, 139 S. Ct. at 2325-26, 2336.18 Our analysis therefore is limited
To determine whether an offense qualifies as a crime of violence under Section 924(c)(3)(A), we apply the categorical approach or the modified categorical approach, depending on the nature of the offense. Id. The categorical approach focuses “on the elements of the prior offense rather than the conduct underlying the conviction.” United States v. Cabrera-Umanzor, 728 F.3d 347, 350 (4th Cir. 2013) (citation omitted). Thus, we do not inquire “whether the defendant‘s conduct could support a conviction for a crime of violence” but instead inquire “whether the defendant was in fact convicted of a crime that qualifies as a crime of violence.” Id.
In a “narrow range of cases,” involving statutes that are comprised of “multiple, alternative versions of the crime,” we apply the modified categorical approach. Descamps v. United States, 570 U.S. 254, 261-62 (2013) (citing Taylor v. United States, 495 U.S. 575, 602 (1990)). When confronted with such a “divisible” statute, we review certain underlying documents, including the indictment, “to determine what crime, with what elements,” formed the basis of a defendant‘s conviction. Mathis v. United States, 136 S. Ct. 2243, 2249 (2016) (citations omitted).
With this framework in mind, we turn to consider each predicate offense underlying the defendants’ Section 924(c) convictions. These predicate offenses are: (1) VICAR in violation of
1.
We begin by addressing whether the capital defendants’ Section 924(c) convictions, which involve (1) commission of VICAR by committing first-degree murder under Virginia law19 and (2) federal witness tampering by means of murder under federal law, qualify as crimes of violence under the force clause. The capital defendants contend that Virginia‘s definition of first-degree murder,20 prohibited under
Advancing the same rationale, the capital defendants also assert that federal witness tampering by murder, under
This line of reasoning, however, is foreclosed by the Supreme Court‘s decision in United States v. Castleman, in which the Court held that “physical force
A conviction for first-degree murder under Virginia law requires the “willful, deliberate, and premeditated” killing of another.
Likewise, because federal witness tampering by murder also requires the unlawful killing of another, which may be accomplished by force exerted either directly or indirectly, we find no merit in the capital defendants’ challenge to their federal witness tampering convictions under
2.
We next consider the defendants’ argument that their Section 924(c) convictions based on Hobbs Act robbery do not qualify as crimes of violence.22 The defendants argue that because Hobbs Act robbery can be committed by placing a victim in fear of injury, the offense does not necessarily include as an element the “use, attempted use, or threatened use of force,” as required by the force clause. The defendants also contend that because Hobbs Act robbery may be accomplished by threatening another with injury to intangible property, such as shares of stock in a corporation, Hobbs Act robbery does not qualify as a crime of violence under the force clause. We disagree with both arguments.23
The question whether Hobbs Act robbery, when committed by means of causing fear of injury, qualifies as a crime of violence is guided by our decision in McNeal, 818 F.3d 141. In McNeal, we held that the crime of federal bank robbery, which may be committed by “force and violence, or by intimidation,”
We also observe that both Section 924(c) and Hobbs Act robbery reference the use of force or threatened use of force against “property” generally, without further defining the term “property.” Compare
United States v. Rivera, 847 F.3d 847, 849 (7th Cir. 2017); In re Fleur, 824 F.3d 1337, 1340-41 (11th Cir. 2016).
3.
Finally, the capital defendants challenge their Section 924(c) convictions predicated on their VICAR convictions for kidnapping under Virginia law. They argue that because kidnapping under Virginia law can be committed by deception, the offense is not categorically a crime of violence
Virginia‘s kidnapping statute generally prohibits an individual from seizing or taking another person “by force, intimidation, or deception” with the intent to deprive that person of his or her liberty.
A review of the statute‘s language and the decisions by Virginia‘s appellate courts interpreting that language indicates that the offense may be committed in a non-violent manner through deceptive means.26
G.
Finally, the capital defendants argue that the fines imposed on each of them should be vacated as substantively unreasonable.27 We disagree.
We review the substantive reasonableness of any part of a sentence for abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007). After considering the factors outlined in Sentencing Guidelines Section 5E1.2(d) and concluding that a fine was warranted, the district court imposed on each defendant a $5,000 fine, a sum well below the advisory guidelines range.28 See
III.
For these reasons, we affirm in part the district court‘s judgment, vacate the capital defendants’ Section 924(c) convictions predicated on their VICAR convictions for kidnapping under Virginia law, and remand for resentencing of those capital defendants, namely, Mathis, Shantai, Mersadies, and Kweli.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED