UNITED STATES OF AMERICA, Plaintiff – Appellee, v. MARTIN L. HUNT, a/k/a O.G. Martin, Defendant – Appellant. UNITED STATES OF AMERICA, Plaintiff – Appellee, v. DESHAUN RICHARDSON, a/k/a Day Day, Defendant – Appellant. UNITED STATES OF AMERICA, Plaintiff – Appellee, v. ERIC NIXON, a/k/a Young Nix, a/k/a Lil Nix, Defendant – Appellant. UNITED STATES OF AMERICA, Plaintiff – Appellee, v. XAVIER GREENE, a/k/a BJ, Defendant – Appellant. UNITED STATES OF AMERICA, Plaintiff – Appellee, v. RAYMOND PALMER, a/k/a Ray Dog, Defendant – Appellant. UNITED STATES OF AMERICA, Plaintiff – Appellee, v. RYAN TAYBRON, a/k/a 22, a/k/a Ryan Savage, Defendant – Appellant. UNITED STATES OF AMERICA, Plaintiff – Appellee, v. GEOVANNI DOUGLAS, a/k/a Geo, a/k/a Twin, Defendant – Appellant.
Nos. 21-4231, 21-4300, 21-4334, 21-4349, 21-4355, 21-4358, 21-4509
United States Court of Appeals for the Fourth Circuit
April 16, 2024
Argued: January 23, 2024
Decided: April 16, 2024
Affirmed by published opinion. Senior Judge Motz wrote the opinion, in which Judge Heytens and Judge Benjamin joined.
ARGUED: Rhonda Elizabeth Quagliana, MICHIEHAMLETT, PLLC, Charlottesville, Virginia; Kimberly Harvey Albro, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina; Jenny R. Thoma, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Clarksburg, West Virginia, for Appellants. Brian James Samuels, OFFICE OF THE UNITED STATES ATTORNEY, Newport News, Virginia, for Appellee. ON BRIEF: Lawrence H. Woodward, Jr., RULOFF, SWAIN, HADDAD, MORECOCK, TALBERT & WOODWARD, P.C., Virginia Beach, Virginia, for Appellant Martin L. Hunt. Gerald T. Zerkin, Richmond, Virginia, for Appellant Xavier Greene. Brendan S. Leary, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Wheeling, West Virginia, for Appellant Ryan Taybron. Jamison P. Rasberry, RASBERRY LAW, P.C., Virginia Beach, Virginia, for Appellant Raymond Palmer. Nicholas R. Hobbs, SCHEMPF & WARE, PLLC, Yorktown, Virginia, for Appellant Eric Nixon. Daymen W. X. Robinson, LAW OFFICE OF DAYMEN W. X. ROBINSON, PC, Norfolk, Virginia, for Appellant Geovanni Douglas. Jessica D. Aber, United States Attorney, Richmond, Virginia, Daniel J. Honold, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
This appeal arises from the prosecution of the “36th Street Bang Squad” (the “Bang Squad“), a gang that committed a string of murders, attempted murders, and assaults in 2015 and 2017. The United States charged seven of the gang‘s members — Martin Hunt, Deshaun Richardson, Eric Nixon, Xavier Greene, Raymond Palmer, Ryan Taybron, and Geovanni Douglas (collectively, “Defendants“) — with racketeering conspiracy, murder, attempted murder, and related crimes. Following a five-week trial, the jury returned guilty verdicts on nearly every count. Defendants now appeal, raising a host of issues, including but not limited to challenges to (1) the classification of their racketeering offenses as crimes of violence; (2) the denial of their motions to exclude testimony of three forensic experts; and (3) the denial of their motions for judgment of acquittal and for a mistrial. After careful review of a voluminous record, we find no reversible error, and so affirm.
I.
In 2019, a grand jury returned the operative 35-count second superseding indictment against Hunt, Richardson, Nixon, Greene, Palmer, Taybron, and Douglas. This indictment alleged a single count of conspiracy to commit racketeering, in violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO“); multiple murders and attempted murders in violation of the Violent Crimes in Aid of Racketeering Act (“VICAR“); seventeen corresponding firearm offenses,
A.
Count 1 charged all seven defendants with conspiracy to commit racketeering, in violation of
The 36th Street Bang Squad operated in Newport News and Hampton, Virginia. The Bang Squad saw itself as a “brotherhood,” with violence as its currency and its creed. Its members committed robberies, murders, and shootings to establish themselves in the gang. They traded in guns and cars, and shared the fruits of their crimes. They were expected to “put in work,” and earned reputation in the gang by committing violent acts. And they used violence to protect their territory, exert their influence, and retaliate against
Taybron led the gang and planned its operations. The Bang Squad worked out of the Marshall Courts and Seven Oaks apartments in Newport News, and Taybron‘s home in Hampton. The Bang Squad warred with five rival street gangs — the Walker Village Murder Gang, the Newsome Park Gang, the 44th Street Gang, the 9th Street Gang, and the Chestnut Gang. And the Bang Squad used social media to enflame conflicts with its rivals. Its members used Facebook to coordinate activities, stake territorial claims, and taunt their adversaries, often by disseminating posts and music videos boasting about violent, retaliatory acts. These actions escalated tensions among the gangs, and often sparked violent conflict.
B.
The Government offered evidence that the Bang Squad committed multiple crimes in the spring of 2015. On March 8, 2015, Bang Squad members Xavier Greene and Steven Harris went hunting for “ops.” At the corner of Ivy Street and 9th Street, in Newport News, they shot and killed 18-year-old Dwayne Parker, a member of the rival Newsome Park Gang. Greene and Harris fled the scene, and engaged in a “shootout” with members of the 9th Street Gang, who were leaving a house party. Greene and Harris took shelter in the home of Jarrell Atkins, another Bang Squad member, and posted a video of Parker‘s dead body on social media. The jury convicted Greene of VICAR murder (Count 2), and a related firearm charge (Count 3), for his role in this offense.
The Walker Village Murder Gang swiftly retaliated. On April 6, 2015, Walker Village member Domingo Davis shot at Hunt and Harris. That same day, four Bang Squad members left the Marshall Courts apartment complex to search for Davis. The Bang Squad members spotted Davis leaving a party on 25th Street and opened fire, killing both Davis and 13-year-old Jada Richardson. The Government charged Richardson, Greene, and Hunt with two counts of VICAR murder (Counts 6, 8), and two associated firearm crimes (Counts 7, 9) for this double murder. The jury convicted Greene and Hunt of all four counts, but acquitted Richardson of these offenses.
That same night, Dwayne Dozier, of the Newsome Park Gang, shot up the residence of Jamaree Green, a Bang Squad member, while his family was inside. Green asked Hunt to help him retaliate, but Hunt urged him to wait, as police activity was “too hot” following the Jada/Richardson double murder. About a week later, when Bang Squad members stated on social media that they had spotted Dozier, Taybron told them to “pop” him; two hours later, Richardson asked why they had not. Then, on April 27, Green, Palmer, Atkins, and Sweetenburg drove to Dozier‘s home late at night, and fired multiple rounds into the house
C.
The summer of 2015 saw more violent, gang-related criminal activity. On June 3, 2015, Newsome Park gangster Jeremiah Smith murdered Bang Squad member Kevonne Turner in his front yard, sparking another chain of retaliatory shootings. A member of the Bang Squad saw the shooting, pursued Smith, and shot at him near an H&H convenience store. The Government charged Geovanni Douglas with one count of VICAR attempted murder (Count 34) and a corresponding firearm charge (Count 35) for this offense, but the jury acquitted him of both counts.
After Smith‘s escape, the Bang Squad embarked on a protracted effort to locate him. On June 5, 2015, Taybron‘s girlfriend, Yamasha Jones, spotted Smith at his high school, Bridgeport Academy. Taybron mobilized two cars full of Bang Squad members to kill Smith — including Martin Hunt and several other unnamed gang members. An extended pursuit followed. The Bang Squad drove to the school, and followed Smith‘s school bus to the Derby Run Apartments. As Bang Squad members combed the apartments to search for Smith, they ran into two Walker Village gangsters outside a nearby Sonic restaurant, and opened fire from their vehicle. The jury convicted Hunt of VICAR attempted murder and conspiracy to commit murder (Count 12), and a corresponding firearm charge (Count 13), for these crimes.
This chain of violence continued throughout the rest of 2015. Later in August, Greene led a burglary of Southern Police Equipment, a gun shop near Richmond, to “arm his brothers.” In September, Taybron learned that his girlfriend, Yamasha Jones, was interacting with rival gang members, so he ordered a nighttime shooting of her house. Sweetenburg and Ford pled guilty to this shooting. And in November, a rival gang killed Steven Harris in retaliation for his role in the string of shootings the previous summer.
D.
Two additional clashes occurred in early 2017. On January 2, 2017, Ford picked up Taybron and Nixon to drive them to Taybron‘s house. As the trio passed through the Chestnut Gang‘s territory, they spotted some Chestnut Gang members standing outside a convenience store. Taybron ordered Ford to pull over, and they confronted the Chestnut gangsters, ultimately sparking a shootout. The Government charged Taybron and Nixon
One month later, on February 9, 2017, Nixon instructed Shaquone Mercer to buy him a gun from a pawn shop. Two weeks after that, Nixon caught Darrell Pittman, of the Newsome Park gang, leaving Aqueduct Apartments, and shot him in the head. Nixon boasted about this shooting to other Bang Squad members, and posted on Facebook that Pittman was “on the ground flopping like a fish.” Pittman survived, was hospitalized, and identified Nixon as the shooter. Two days later, officers arrested Nixon and Jamaree Green in a hotel room. For his actions, the jury convicted Nixon of VICAR attempted murder (Count 23), a corresponding firearm charge (Count 24), and one count of making false statements during a firearm purchase (Count 25).
II.
The jury deliberated for several days, and then, as detailed above, returned guilty verdicts against all seven defendants, on most of the counts alleged in the indictment.1 Defendants filed motions for judgment of acquittal, which the district court denied in a
The district court sentenced Martin Hunt to three consecutive life sentences and 120 months’ imprisonment; Deshaun Richardson to 204 months’ imprisonment; Eric Nixon to 360 months’ imprisonment; Xavier Greene to four consecutive life sentences; Ryan Taybron to 360 months’ imprisonment; Raymond Palmer to 180 months’ imprisonment; and Giovanni Douglas to 228 months’ imprisonment. The defendants timely appealed. We now turn to the numerous issues raised on appeal.
III.
First, Defendants Hunt, Nixon, Greene, Palmer, Taybron, and Douglas challenge their convictions under
The VICAR statute addresses “the particular danger posed by those who are willing to commit violent crimes in order to bolster their positions within racketeering enterprises.” United States v. Keene, 955 F.3d 391, 394 (4th Cir. 2020) (cleaned up). Under VICAR, it is a crime to commit one of several enumerated offenses to gain entrance into, or to “maintain or increase [one‘s] position in,” a racketeering enterprise. Id. (cleaned up); see also
Defendants contend that neither VICAR attempted murder based on Virginia attempted murder, nor VICAR attempted assault with a dangerous weapon based on Virginia unlawful wounding, constitute valid predicates for their
A.
“Pursuant to
Because
In Taylor, the Supreme Court addressed whether attempted Hobbs Act robbery is a crime of violence under
The thrust of Taylor is that an attempt offense qualifies as a crime of violence only if the completed offense invariably requires the use of physical force. As we explained in the decision underlying Taylor:
[W]here a crime of violence may be committed without the use or attempted use of physical force, an attempt to commit that crime falls outside the purview of the force clause. But where a crime of violence requires the use of physical force — as is usually the case — the categorical approach produces the opposite outcome: because the substantive crime of violence invariably involves the use of force, the corresponding attempt to commit that crime necessarily involves the attempted use of force.
979 F.3d at 208. That explanation remains accurate following the Supreme Court‘s holding in Taylor. An attempt offense is not a crime of violence merely because the completed offense is itself a crime of violence. But if a crime cannot be completed without the use of
Defendants urge a broader reading of Taylor, under which an attempt crime cannot be a crime of violence if it may be completed through a nonviolent step towards the offense. They argue that a defendant “who intended to try to use force but never got the chance,” such as where “their intended target was unavailable,” has not attempted to use force at all. Repl. Br. 19. As we understand it, this argument would have us hold that
To start, this construction would read all attempt crimes out of
Equally telling, remarkably few offenses have an element akin to the “unsuccessful use” of physical force. See United States v. States, 72 F.4th 778, 786 (7th Cir. 2023) (reasoning that a construction of
Accordingly, we reject Defendants’ construction of Taylor, which would exclude virtually all attempt offenses from the “attempted use . . . of physical force” under
B.
The jury convicted Defendants Hunt, Greene, Taybron, Nixon, and Douglas on nine
Every circuit to consider whether attempted murder is a crime of violence following Taylor has held that this offense categorically requires the attempted use of physical force. See, e.g., United States v. Pastore, 83 F.4th 113, 120 (2d Cir. 2023); States, 72 F.4th at 787–91; Dorsey v. United States, 76 F.4th 1277, 1284 (9th Cir. 2023); Alvarado-Linares v. United States, 44 F.4th 1334, 1346–48 (11th Cir. 2022). In Pastore, the Second Circuit reasoned that while Hobbs Act robbery may be committed by way of “threatened force,” completed murder requires “the actual use of force.” Id. at 121 (cleaned up).
We agree. As discussed above, an attempt offense qualifies as a crime of violence if the completed offense categorically requires the use of physical force, and a mens rea more culpable than recklessness. “A conviction for first-degree murder under Virginia law requires the ‘willful, deliberate, and premeditated’ killing of another,” and always involves “the use of force capable of causing physical pain to another person.” Mathis, 932 F.3d at 265 (quoting
Second, Defendants argue that Virginia first-degree murder may be committed by malicious omission, Vaughan v. Commonwealth, 376 S.E.2d 801, 806 (Va. 1989), and that crimes that can be completed by malicious omissions do not constitute crimes of violence. But we have held that “the knowing or intentional causation of bodily injury necessarily
C.
The Government charged Palmer with a
IV.
Defendants next contest the denial of two pretrial motions: (1) their joint motion to exclude three forensic experts; and (2) Douglas’s last-minute motion to reappoint counsel. We review both decisions for an abuse of discretion. Simmons, 11 F.4th at 261 (motion to exclude); United States v. Perez, 661 F.3d 189, 191 (4th Cir. 2011) (motion to substitute counsel). A district court abuses its discretion if (1) it applies the incorrect law; (2) it rests its decision on a clearly erroneous factual premise; or (3) we are left with the “definite and firm conviction” that it “committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.” Simmons, 11 F.4th at 261 (quoting Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir. 1999)).
A.
In performing this gatekeeping function, the district court must focus on the expert’s “principles and methodology, not on the conclusions that they generate.” In re Lipitor Mktg., Sales Prac. & Prods. Liab. Litig., 892 F.3d 624, 631 (4th Cir. 2018) (cleaned up).
The district court may consider a wide range of Daubert factors to evaluate an expert’s methodology, including its error rate; the standards governing its operation; whether it can be tested; whether it is “subject to peer review”; and whether it is generally accepted in the relevant scientific or expert community. United States v. Mallory, 988 F.3d 730, 741 (4th Cir. 2021); see Daubert, 509 U.S. at 593–94. But these considerations are nonexclusive, and the court has “broad latitude” to account for “any factors bearing on validity that the court finds to be useful,” E.E.O.C. v. Freeman, 778 F.3d 463, 466 (4th Cir. 2015) (cleaned up), depending on “the nature of the issue, the expert’s particular expertise, and the subject of his or her testimony,” McKiver, 980 F.3d at 959 (cleaned up).
The Government relied on the testimony of three ballistics experts, Arnold Esposito, Julianna Red Leaf, and Alison Milam, to connect firearms shared by members of the Bang Squad to the scenes of each violent incident alleged in the indictment. As it must, the Government gave Defendants notice of these experts one month before trial. In response, Defendants filed a motion to exclude the testimony of all three experts, arguing that the field of “toolmark identification” — a forensic analysis technique that evaluates whether a particular gun fired a particular bullet — is categorically unreliable. The district court
Defendants renew their broad challenge on appeal, arguing that the entire field of forensic toolmark analysis fails to satisfy Daubert. They also urge us not to rely on the historic practice of admitting this evidence — arguing that, while toolmark analysis has been allowed for decades, growing scientific skepticism of this field warrants deeper scrutiny by the courts.
We recognize that the historic practice of admitting forensic evidence does not eliminate a trial court’s responsibility to perform its gatekeeping function in a given case.7 After all, “[s]erious deficiencies have been found in the forensic evidence used in criminal trials.” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 319 (2009). Testimony by forensic experts must be scrutinized under
In exercising its discretion, the court may address concerns with expert testimony through less dramatic remedies than exclusion. Because Daubert analysis “is not intended to serve as a replacement for the adversary system, . . . the rejection of expert testimony is the exception rather than the rule.” United States v. Smith, 919 F.3d 825, 835 (4th Cir. 2019) (cleaned up). Thus, even “shaky but admissible evidence” should be addressed through “vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof,” not through “wholesale exclusion by the trial judge.” In re Lipitor, 892 F.3d at 631 (cleaned up). That is equally true of forensic evidence. As the Supreme Court reasoned in Melendez-Diaz, while forensic sciences have faced increased scrutiny, “there is little reason to believe that confrontation will be useless in testing analysts’ honesty, proficiency, and methodology — the features that are commonly the focus in the cross-examination of experts.” 557 U.S. at 321.
The district court did not abuse its discretion in finding that Defendants’ concerns with the reliability of forensic toolmark analysis could be addressed through confrontation, rather than exclusion. In the proceedings below, Defendants argued that toolmark analysis relies on subjective, ill-defined standards; that it may produce erroneous matches between guns from similar production batches; and that these uncertainties are vulnerable to bias. The district court addressed these concerns by instructing the Government not to overstate
Defendants also argue that the court abused its discretion by denying their motion without holding a Daubert hearing. We disagree. “A trial court has ‘considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable.’” McKiver, 980 F.3d at 961 (quoting Kumho Tire, 526 U.S. at 152). As the district court noted, Defendants argued solely that forensic toolmark evidence is categorically inadmissible, and did not present any fact-specific challenge to the forensic experts who testified in this case. Because “the district court had sufficient information” to address Defendants’ categorical argument, “the district court here was entitled to rely on the parties’ materials without requiring further submissions or a Daubert hearing.” Id.
B.
Douglas had a contentious relationship with his court-appointed attorney, Harry Harmon, Jr., and before trial, Douglas repeatedly changed his mind as to whether Harmon could represent him.10 Throughout proceedings, he accused Harmon of collaborating with
Mr. Harmon is not to give advice to Defendant concerning the significance of any of the evidence, is not to give advice regarding legal strategy, and should not perform any research on behalf of Defendant. Should defendant wish for his stand-by counsel to take a larger role in his defense, Defendant may submit a motion requesting to have Mr. Harmon re-appointed and agreeing to relinquish his pro se status. But Defendant cannot have it both ways, nor can Defendant utilize his election to proceed pro se as a means to delay trial regardless of whether he proceeds to trial pro se or submits a request asking that Mr. Harmon be re-appointed.
On October 20, 2019, following three days of jury selection and on the Saturday before opening statements, Douglas moved to relinquish his pro se status and reappoint Harmon, asserting that he had reviewed discovery and reevaluated his options. The district court denied this motion, observing that it had been filed on the eve of trial, and that it would place Harmon in an “untenable position.”
In so ruling, the court did not abuse its discretion. We have recognized that judges have wide latitude to deny a late-breaking motion for substitution of counsel. See United States v. McQueen, 445 F.3d 757, 761 (4th Cir. 2006); United States v. Corporan-Cuevas, 35 F.3d 953, 956 (4th Cir. 1994) (“[A] motion . . . on the first day of trial . . . would clearly be untimely under all but the most exigent circumstances”). Such last-minute motions
A criminal defendant has a constitutional right to defend himself; and with rights come responsibilities. If at the last minute he gets cold feet and wants a lawyer to defend him he runs the risk that the judge will hold him to his original decision in order to avoid [a] disruption of the court’s schedule [by] a continuance granted on the very day that trial is scheduled to begin[.]
877 F.2d 281, 286 (4th Cir. 1981) (quoting United States v. Solina, 733 F.2d 1208, 1211–12 (7th Cir. 1984)). Here, the trial court did not abuse its discretion in denying Douglas’s motion, filed as it was on the eve of opening statements. Indeed, when the court allowed Douglas to proceed pro se, it warned him about such last-minute requests precisely because of the potential for delays.11
Douglas argues that Harmon was prepared to step in, and that the court’s refusal of his request defeats the purpose of appointing standby counsel. But a pro se defendant has no
V.
Next, Defendants Nixon, Taybron, Richardson, and Palmer appeal the denial of their motions for judgment of acquittal pursuant to
On a defendant’s motion, a court “must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.”
A.
Eric Nixon and Ryan Taybron contend they were entitled to a judgment of acquittal on charges of attempted murder and
1.
We begin with Eric Nixon’s individual argument. Counts 23 and 24 charged Nixon with attempting to murder Darrell Pittman, of the Newsome Park Gang, on February 26, 2017. Early that day, a member of the Bang Squad shot Pittman in the head while he was leaving the Aqueduct apartments in Newport News, Virginia. Pittman survived, and was transported to a hospital, where he informed police officers that he’d been shot by “Nix from 3-6” regarding an “old beef.” Acting on this information, officers arrested Nixon and
At trial, the defense called Pittman, who denied saying that Nixon had shot him and identified two other individuals as the shooters. But ballistics evidence connected Nixon to the shooting, and four witnesses testified that he was responsible. Newport News police officer Eric Nunez confirmed that Pittman had identified Nixon while he was in the hospital on the day of the shooting. In addition, Ford, Green, and Sweetenburg all testified that Nixon told them he shot Pittman — Nixon told Ford that “he caught [Pittman] coming out of Aqueduct”; told Sweetenburg that he’d shot Pittman in the head; and told Green that Pittman “flopp[ed] like a fish.” This evidence, viewed in the Government’s favor, is more than enough for a jury to find that Nixon shot Pittman.
Nixon argues that Pittman was the sole eyewitness to the shooting, and that it would be irrational for the jury to convict Nixon following Pittman’s testimony. Of course, “[a] jury is entitled to make only reasonable inferences from the evidence,” United States v. Samad, 754 F.2d 1091, 1097 (4th Cir. 1984) (cleaned up), but “it is the jury’s province to weigh the credibility of the witnesses, and to resolve any conflicts in the evidence.” United States v. Dinkins, 691 F.3d 358, 387 (4th Cir. 2012). Moreover, on appeal, we “assume that the jury resolved any conflicting evidence in the prosecution’s favor.” United States v. Robinson, 55 F.4th 390 (4th Cir. 2022) (cleaned up). The jury was not required to accept Pittman’s recantation — or to discount the volume of evidence that Nixon was the shooter.
2.
Nixon and Taybron’s joint argument fares no better. Count 21 charged these two defendants with attempted murder in relation to the January 2, 2017, shootout with several members of the rival Chestnut Gang. The Government relied largely on Ford’s testimony to establish a narrative of the encounter. According to Ford, while he was driving Taybron and Nixon through Chestnut Gang territory, Taybron spotted Chestnut Gang members outside a convenience store, and instructed Ford to pull over. They parked around a corner, and the defendants told Ford to give Taybron his gun. Taybron and Nixon approached on foot, and began “jawing” at the rival gang members for about five minutes. Ford grew concerned that Taybron and Nixon were “taking too long to shoot,” so he got out of the vehicle to retrieve his firearm. As Ford approached, one of the Chestnut gangsters fired a shot, and Taybron and Nixon returned fire, emptying the clips in their guns before retreating to the car.
Taybron and Nixon argue that Ford’s testimony is insufficient to show they intended to kill anyone during this incident. They argue that the shootout was a chance encounter, and that it does not resemble the Bang Squad’s systematic hunts for rival gang members. They also insist it would be irrational to infer that they intended to shoot, because they approached outnumbered, spoke to their rivals for five minutes, and fired only when fired upon. But the weight of the evidence is committed to the jury. See, e.g., United States v. Wysinger, 64 F.4th 207, 211 (4th Cir. 2023); United States v. Dennis, 19 F.4th 656, 670 (4th Cir. 2021). Our responsibility is only to determine whether there is enough evidence to sustain the jury’s verdict — not to substitute our judgment for that of the factfinder, and decide for ourselves whether the jury got it right. See, e.g., Savage, 885 F.3d at 219 (explaining that we will uphold a jury verdict so long as it is supported by “evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant’s guilt beyond a reasonable doubt” (cleaned up)).
Ford’s testimony provided abundant evidence for a jury to conclude that Taybron and Nixon wanted to kill the members of the Chestnut Gang, even if the shootout initially began as a chance encounter. The record contained ample evidence that the Bang Squad regularly provoked its rivals by taunting them and venturing into their territory. Although Ford’s narrative suggests that Taybron and Nixon did not set out to go “op shopping” — to hunt opposing gang members — the jury could reasonably have concluded that Taybron and Nixon made the decision to kill their adversaries when they spotted them during the drive. And while the tactics employed by Taybron and Nixon could suggest that they intended merely to confront their rivals, not to kill them, the jury did not need to draw that inference. See Wysinger, 64 F.4th at 211 (“[I]f the evidence supports different, reasonable interpretations, the jury decides which interpretation to believe.” (quoting United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997))).
B.
1.
We begin with Deshaun Richardson. In addition to the RICO conspiracy at issue in Count 1, the Government charged Richardson with four counts arising from the April 6, 2015, murders of Domingo Davis and Jada Richardson (Counts 6–9). Forensic expert Juliana Red Leaf opined that a handgun Richardson carried on the day of the double murders matched bullets and shell casings recovered from the crime scene. In addition, four cooperating Bang Squad members testified at trial, and tied Richardson to the murders: Corey Sweetenburg testified that Richardson, Hunt, Green, and Harris left the Marshall Courts apartments before the murders to hunt for Davis; Racquille Jackson recounted that the quartet convened at his mother’s house to lie low, and told him about the shootings; and Jarrell Atkins and Jamaree Green each claimed that Richardson was one of the gunmen.
On this evidence, the jury convicted Richardson on Count 1, the RICO conspiracy. But it acquitted Richardson on Counts 6 through 9, which charged him with the double murders. Richardson maintains that the Government presented an “all-or-nothing” theory of the case — either he was the fourth shooter, or he was not involved. Because the jury rejected that theory, and made a finding that he did not aid or abet the killings, Richardson contends that there is insufficient evidence of his involvement in the conspiracy to sustain a conviction on Count 1.
This argument boils down to the notion that a conviction on the RICO conspiracy charge is incompatible with an acquittal on the predicate murder counts. But “[a] defendant cannot challenge his conviction merely because it is inconsistent with a jury’s verdict of acquittal on another count.” United States v. Legins, 34 F.4th 304, 316 (4th Cir. 2022) (cleaned up); United States v. Louthian, 756 F.3d 295, 305 (4th Cir. 2014); Wiggins v. Boyette, 635 F.3d 116, 127 (4th Cir. 2011). After all, “an inconsistent verdict can result from mistake, compromise, or lenity, and a jury could just as likely err in acquitting as convicting.” Legins, 34 F.4th at 316 (cleaned up). Because a court cannot divine the jury’s intentions, “a reviewing court’s assessment of the reason for the inconsistency would be based either on pure speculation, or would require inquiries into the jury’s deliberations.” Id. at 316 (cleaned up). Courts rarely tread such treacherous waters.
Accordingly, the mere fact that Richardson was acquitted on the counts arising from the Davis/Richardson murders does not undermine his conviction of the RICO conspiracy.
Richardson also argues that the Government offered no evidence that he committed any racketeering acts himself. This argument is a nonstarter. We have recognized that “a defendant can conspire to violate RICO . . . without ‘himself commit[ing] or agree[ing] to commit the two or more’ acts of racketeering activity.” United States v. Mouzone, 687 F.3d 207, 218 (4th Cir. 2012) (quoting Salinas v. United States, 522 U.S. 52, 62 (1997)).13 It is enough that the defendant “adopt the goal of furthering or facilitating the criminal
There was ample evidence for the jury to find Richardson agreed to the commission of multiple murders and attempted murders, even if he did not personally commit them. As discussed above, Atkins, Green, Sweetenburg, and Jackson testified as to Richardson’s participation in discussions about the double murders. Moreover, Richardson’s social media activity, including his admonition to Hunt to delete his status one hour after the murders, and his message in a group chat asking other gang members why they didn’t “pop Dwayne [Dozier],” permits an inference of broad involvement in the Bang Squad’s efforts to hunt and kill its rivals. Accordingly, “the jury’s verdict is not necessarily inconsistent.” Legins, 34 F.4th at 316. Even if Richardson did not commit any of these shootings himself, the jury could reasonably find he participated in the conversations around these offenses, and agreed that they would be carried out.14
2.
The Government produced no direct evidence that Palmer agreed to the commission of two racketeering acts. But the prosecution offered circumstantial evidence that he did so. See United States v. Tillmon, 954 F.3d 628, 640 (4th Cir. 2019) (“Due to the clandestine nature of a conspiracy, the offense is often proved by circumstantial evidence and the
Palmer argues that the Dozier shooting cannot be a valid predicate, as it was charged only as an armed assault rather than an attempted murder, and that his marijuana sales have no connection to the gang. We are not persuaded. Because a racketeering conspiracy is not contingent on specific predicates, the Government’s decision to charge the Dozier home shooting as an armed assault is irrelevant. See United States v. Barronette, 46 F.4th 177, 207 (4th Cir. 2022) (holding that the Government need not charge specific predicates); Tinsley, 800 F.2d at 450 (holding that a jury may convict on a RICO conspiracy charge while acquitting on predicate acts). And because Palmer was a member of the Bang Squad, and the Government offered testimony that the Bang Squad confronted, fought, or shot others who sold drugs in its territory, the jury could infer that Palmer’s drug sales were gang activity, or that they were carried out with its approval. See United States v. Marino, 277 F.3d 11, 27 (1st Cir. 2002) (“A sufficient nexus or relationship exists between the racketeering acts and the enterprise if the defendant was able to commit the predicate acts by means of . . . his association with the enterprise.”).
Moreover, the Government need not identify the specific racketeering acts that the defendant agreed would be committed. United States v. Cornell, 780 F.3d 616, 625 (4th Cir. 2015). “[T]he object of a RICO conspiracy is ‘to engage in racketeering,’ not to
VI.
Because the Chestnut Gang members fired first in the shootout on January 2, 2017, Taybron and Nixon sought a jury instruction on self-defense, and the court provided one. But while the defendants requested a justifiable self-defense instruction, the court instead instructed the jury only on a theory of excusable self-defense. We review the district court’s refusal to give a jury instruction for abuse of discretion. United States v. Hassler, 992 F.3d 243, 246 (4th Cir. 2021). Given that the undisputed facts preclude a theory of justifiable self-defense, we affirm.
“Virginia law recognizes two forms of self-defense to criminal acts of violence: self-defense without fault (‘justifiable self-defense’) and self-defense with fault (‘excusable
But the Supreme Court of Virginia has clearly held that where “a defendant is even slightly at fault, the killing is not justifiable homicide.” Avent v. Commonwealth, 688 S.E.2d 244, 259 (Va. 2010) (quoting Perricillia v. Commonwealth, 326 S.E.2d 679, 685 (Va. 1985)). In Avent, the victim attacked the defendant first — knocking him to the ground and choking him — but broke off the encounter and retreated upstairs. Id. at 249, 259. Concerned that the victim was retrieving a firearm, the defendant followed him, carrying a shotgun. Id. at 249, 259. Upstairs, the victim assaulted the defendant with a wooden board, and the defendant shot him, knocked him over, and bludgeoned him, causing his death. Id. The defendant was convicted of murder, and the Supreme Court of Virginia affirmed. Id. While the victim was the aggressor in the fatal encounter, the court held that the defendant
Avent indicates that any degree of fault on the part of the defendant, even the act of following the victim after a heated altercation, precludes a claim of justifiable self-defense. Smith v. Commonwealth, 435 S.E.2d 414, 416 (Va. 1993) (“Any form of conduct by the accused from which the fact finder may reasonably infer that the accused contributed to the affray constitutes fault.” (cleaned up)).15 Taybron and Nixon did much more than that: They armed themselves, confronted a rival gang in hostile territory, and kicked off a five-minute shouting match that ended in gunfire. On these facts, it would be impossible for a jury to conclude that Taybron and Nixon are not at least “slightly at fault” in the encounter. Avent, 688 S.E.2d at 259.
Citing Jones v. Commonwealth, Taybron and Nixon argue that words alone cannot establish provocation. See 833 S.E.2d 918, 930 (Va. Ct. App. 2019). But this rule pertains to the provocation element of manslaughter — not to the question of whether a defendant bears no fault in causing a confrontation, as required for a claim of justifiable self-defense. To reduce a homicide to manslaughter, the defendant must show that he killed “in the heat of passion and [upon] reasonable provocation,” referring to a state of rage or fear “which renders a person deaf to the voice of reason.” Washington v. Commonwealth, 878 S.E.2d 430, 436 (Va. Ct. App. 2022) (cleaned up). That concept has no relation to whether the defendant bears “any fault” in contributing to a fatal encounter, an inquiry that resembles causation. See Osman, 737 S.E.2d at 880; Smith, 435 S.E.2d at 416. While “[w]ords alone are never sufficient reasonable provocation” to reduce a homicide to manslaughter, Jones, 833 S.E.2d at 926, words can certainly contribute to the lethal escalation of an encounter. Cf. Washington, 878 S.E.2d at 435 (affirming denial of justifiable self-defense instruction where appellant approached the victim, started a heated verbal exchange, and shot the victim at its climax).16
VII.
Richardson argues that the court erroneously enhanced his sentence under Count 1 based on the murders of Domingo Davis and Jada Richardson. “On a challenge to a district court’s application of the Guidelines, we review questions of law de novo and findings of fact for clear error.” United States v. Allen, 909 F.3d 671, 677 (4th Cir. 2018) (cleaned up). A factual finding is clearly erroneous if, upon reviewing the entire record, we are “left with
The court calculated Richardson’s base offense level by applying
Richardson maintains that the cross-reference to
But in any event, the district court did not find that Richardson committed the double murders. At sentencing, the Government argued he was liable for the Davis/Richardson murders on a theory of personal liability. See
Richardson further argues that the jury’s special verdict precludes a sentencing finding based on conspirator liability. We have referenced a “non-contradiction principle which prohibits the district court from finding facts by a preponderance of the evidence that contravene the jury’s finding beyond a reasonable doubt.” United States v. Mitchell, 493 F. App’x 440, 441–42 (4th Cir. 2012) (citing United States v. Curry, 461 F.3d 452, 460–61 (4th Cir. 2006)). Assuming without deciding that this principle remains good
VIII.
Finally, Defendants collectively argue that the district court abused its discretion by denying their motion for a mistrial, which they filed in response to a witness’s comments about an uncharged murder. We review a district court’s decision on a motion for mistrial for abuse of discretion, and we reverse only in “the most extraordinary of circumstances.” United States v. Recio, 884 F.3d 230, 239 (4th Cir. 2018) (cleaned up). Circumstances are far from extraordinary here.
In our system of justice, “the law does not allow consideration of other crimes as evidence of a defendant’s criminal disposition.” United States v. Foutz, 540 F.2d 733, 736 (4th Cir. 1976); see also
Accordingly, we have affirmed the denial of mistrial motions based on a witness’s improper reference to an uncharged offense where the reference was brief, and the court promptly instructed the jury to disregard it. E.g., United States v. Collins, 372 F.3d 629, 634 (4th Cir. 2004); United States v. Vogt, 910 F.2d 1184, 1192–93 (4th Cir. 1990); United States v. Morrow, 731 F.2d 233, 235 n.4 (4th Cir. 1984). Most recently, in United States v. Zelaya, a witness testified that the defendant “told her that she would cry for her son like she cried for ‘Hugo,’” and that “Hugo was ‘the guy [defendants] had killed before.’” 908 F.3d 920, 929–30 (4th Cir. 2018). Because the defendants were not charged with the Hugo murder, defense counsel promptly moved for a mistrial. Id. The court denied this motion,
Such is the case here. On the thirteenth day of trial, during the Government’s direct examination of Corey Sweetenburg, the prosecutor asked Sweetenburg why he had elected to cooperate with the investigation. Sweetenburg explained that he had decided to come forward when Nixon and Taybron were “locked up for the Ralph murder.” Defendants immediately objected and requested a mistrial. After a bench colloquy and a brief recess, the court denied the mistrial motion, but sustained the objection, struck the objectionable testimony, and issued an extensive curative instruction:
Now, there’s one other matter that I wanted to address with you, and it is this: Just before, just before our lunch break, you heard the current witness, Corey Sweetenburg, who is sitting there on the stand, refer to the Ralph murder. I instruct you and I direct you that that testimony was improper, and you are to completely disregard that statement. Put it out of your mind.
First, I remind you that none of the defendants in this case are charged with the Ralph murder.
Second, there are no allegations in the charges before this court at all about any Ralph murder, and anything having to do with any so-called Ralph murder has absolutely nothing to do with the charges in this case. Therefore, I am ordering that testimony be stricken, and you are to totally disregard it in your consideration of the evidence in this case as to all the defendants, and you are to totally disregard it in your deliberations as to all the defendants. It shall not be discussed in any way during deliberations and shall not be part of your individual or collective decision-making process.
Thereafter, the court dissuaded the Government from introducing exhibits that referenced the Ralph murder, including rap videos and a Facebook post. Throughout the remaining three weeks of trial, not a single witness made any additional reference to the Ralph murder.
IX.
For the foregoing reasons, the judgment of the district court is in all respects
AFFIRMED