Case Information
*1 Before: FISHER, GREENAWAY, JR. and ROTH, Circuit Judges .
(Filed: January 17, 2012)
Richard F. Della Fera (Argued)
Alvin E. Entin
Entin & Della Fera
110 Southeast 6th Street, Suite 1970
Fort Lauderdale, FL 33301
Counsel for Appellant
Kelly Lake
Nolan D. Paige (Argued)
Office of United States Attorney
5500 Veterans Building, Suite 260
United States Courthouse
Charlotte Amalie, St. Thomas, USVI 00802-6924
Counsel for Appellee
____________
OPINION OF THE COURT
____________
FISHER, Circuit Judge .
Gelean Mark appeals from his convictions in the U.S. District Court for the District of the Virgin Islands for engaging in a pattern of racketeering activity in violation of 18 U.S.C. § 1961 et seq. We will affirm.
I.
We write exclusively for the parties, who are familiar with the factual context and legal history of this case. Therefore, we will set forth only those facts necessary to our analysis.
On October 1, 2009, a grand jury handed down a superseding indictment against Gelean Mark and Jerome Blyden, charging them with participating in or operating a racketeering enterprise (“Mark/Blyden enterprise”) involving narcotics sales, illegal gambling, and violent acts, in violation of 18 U.S.C. § 1962(c) (“RICO”) (Count One); attempted murder in aid of racketeering, in violation of 18 U.S.C. § 1959 (Count Two); assault with a dangerous weapon in aid of racketeering, also in violation of 18 U.S.C. § 1959 (Count Three); and using a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924 (Count Five). [1]
*3 The District Court granted Mark‟s first counsel several continuances of trial in recognition of the case‟s complexity and cumbersome discovery. On February 5, 2010, Mark‟s first counsel was excused, and the court appointed new counsel to represent him. One week after being appointed, Mark‟s second counsel filed an emergency motion to continue, requesting at least a ninety-day extension of trial from the scheduled date of March 22, 2010. The court granted a continuance for an additional forty-two days of preparation, but summarily denied the full ninety-day request.
Trial was held from May 3, 2010 to May 8, 2010. The government presented taped phone conversations about drug trafficking and dogfighting between Mark and another member of the alleged narcotics trafficking conspiracy, Vernon Fagan, and conversations between other dealers discussing Mark‟s narcotics distribution network in the Virgin Islands. Three government witnesses, Elton Turnbull, James Springette, and Glenson Isaac, testified that they were engaged in drug trafficking activity with Mark, and described an extensive drug trafficking network headed by Springette, with which Mark‟s drug trafficking enterprise was affiliated. They also testified that Mark would secure drugs from the Springette organization at the airport in St. Thomas and facilitate their transport to the continental United States. Turnbull further testified that Mark and Blyden had hosted dogfights in the Virgin Islands, and that he and Mark had pooled money to gamble on the fights on several occasions. Isaac testified that he had attended a dogfight hosted by Mark in 2004, at which Mark won $80,000, and that drug proceeds were used “to bet that large quantity of money at dogfights.”
On May 8, 2010, the jury returned a verdict of guilty against Mark on Counts One and Three (the RICO offenses), but acquitted him on Counts Two and Five. Mark filed post-trial motions for judgment of acquittal and a new trial. The District Court denied the motions, and sentenced Mark to 121 months‟ imprisonment. Mark filed a timely appeal.
II.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231 and 48 U.S.C. § 1612. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 48 U.S.C. § 1613.
Mark presents four issues on appeal: the denial of his motion for a continuance; the use of the Virgin Islands dogfighting statute as a predicate RICO offense; the sufficiency of the evidence connecting his dogfighting and drug trafficking as a pattern of racketeering activity; and the admission of testimony on the Springette drug organization as irrelevant and unfairly prejudicial.
We address Mark‟s contentions in turn. We review the denial of his motion for a
continuance for abuse of discretion.
United States v. Rivera Constr. Co.
,
III.
Mark first asks for a new trial on the grounds that the District Court abused its
discretion in denying his motion for a ninety-day continuance, and granting him forty-
two days instead. The District Court‟s summary denial of the full request, after
unreservedly granting prior extensions, leads us to surmise that nothing but the calendar
of the court constrained its decision. Although we give a judge “wide latitude” in
exercising discretion over the grant of a continuance, judges “must balance the
conflicting demands of court administration with the rights of the accused and [third
parties] who would be affected by the consequences of a delay.”
Gov’t of Virgin Islands
v. Charleswell
,
*6
We fully acknowledge that trial preparation in this case was complicated. Counsel
was saddled with thousands of pages of discovery and prior trial transcripts, as well as
numerous recordings; indeed, we have no quarrel with counsel‟s proffered justifications
for seeking a continuance. Nevertheless, we conclude that the District Court did not
abuse its discretion by granting a partial continuance. In total, counsel had eighty-seven
days to prepare a defense; RICO cases can be complex, but this was, objectively, ample
time to obtain records, meet with the defendant, and subpoena witnesses,
see United
States v. Fischbach & Moore, Inc.
,
Mark next contends that the Virgin Islands dogfighting statute cannot be used as a predicate RICO offense because it is not an act involving gambling. See 18 U.S.C. § 1961(1)(A). We have consistently interpreted RICO to allow predicate acts similar to the dogfighting offense charged in this case, because “State offenses [listed in § 1961(1)(A)] are included by generic designation.” United States v. Forsythe , 560 F.2d 1127, 1137 (3d Cir. 1977) (citation omitted). “The test for determining whether the *7 charged acts fit into the generic category of the predicate offense is whether the indictment charges a type of activity generally known or characterized in the proscribed category . . . .” Id. (emphasis added). Gambling is defined as “the act or practice of betting,” or “the act of risking something on an uncertain event.” Webster’s Third New Int’l Dictionary (1981). The Virgin Islands dogfighting statute, under which a defendant is punishable for acting “for any bet, stake, or reward,” 19 V.I.C. § 2613a(a), clearly falls within the category of gambling offenses. Mark‟s argument that dogfighting cannot be a predicate offense because it is part of a health code segment of the Virgin Islands Code is likewise meritless. RICO requires only that the offense be chargeable under state law and punishable by more than one year of imprisonment. 18 U.S.C. § 1961(A)(1). The dogfighting statute qualifies because it is a chargeable offense punishable by up to two years of imprisonment. See 19 V.I.C. § 2613a(a)(4). Accordingly, the government did not need to charge a predicate act under the Virgin Islands‟ gambling statute.
Mark is also incorrect that RICO requires that gambling be a necessary element of
the predicate offense. In
Forsythe
, we approved the use of a predicate offense which
involved bribery only in the disjunctive, rather than as a required element, because the
defendant was charged under the bribery prong.
Mark‟s third argument is that there was insufficient evidence to tie together the
dogfighting and drug trafficking as a pattern of racketeering activity.
See
18 U.S.C.
§§ 1961(5), 1962(c). A pattern of racketeering activity under RICO is established by
showing “continuity plus relationship” among predicate acts.
Sedima S.P.R.I. v. Imrex
Co.
,
Under our longstanding interpretation of RICO, the evidence was sufficient in this case to establish the requisite relationship between the dogfighting and the drug trafficking conspiracies. Both operations furthered the Mark/Blyden enterprise‟s purposes, broadly defined in the Superseding Indictment to include “[e]nriching the members and associates” and “[p]romoting and enhancing the enterprise.” The same individuals involved in the drug trafficking conspiracies – Mark and Blyden – also hosted the dogfights, wagering and winning exceedingly large amounts of money, at times up to *9 $50,000, and, as with the drug trafficking, Mark was the central player in organizing the dogfights. Further, based on Isaac‟s testimony that drug proceeds were used to “bet that large quantity of money” on dogfights, a reasonable jury could conclude that money was funneled between the two endeavors. This evidence was more than sufficient to prove the requisite relationship between the dogfighting and drug trafficking.
In a final foray, Mark offers two arguments that the District Court abused its discretion in admitting evidence of the Springette drug organization: first, that it was not admissible for any relevant purpose; second, that even if it was relevant, it was unfairly prejudicial under Federal Rule of Evidence 403. Neither argument prevails.
First, evidence of the Springette organization was relevant to Mark‟s drug
trafficking and RICO charges as information establishing the organized existence and
purposes of the Mark/Blyden enterprise and the predicate acts. Evidence is considered
relevant in a RICO case if it tends to show the “existence and nature” of a criminal
organization or enterprise, as well as its “history, structure and internal discipline . . . ,
and the regular means by which it conducted unlawful business.”
Eufrasio
, 935 F.2d at
573. In this case, testimony about the Springette organization, including the drug
production, transportation, and distribution system, was relevant to show the “existence
and nature” of the Mark/Blyden enterprise,
see id.
, and specifically, to show that the drug
offenses were systematic and related, thereby forming a “pattern” for RICO purposes.
This evidence was also probative of the defendants‟ roles and responsibilities within a
larger drug trafficking network,
see id.
, an integral part of the prosecution‟s effort to
*10
demonstrate Mark‟s “knowing participation in and association with the RICO enterprise.”
United States v. DiSalvo
,
Second, the Springette evidence was not unfairly prejudicial under Federal Rule of
Evidence 403.
[3]
Not every hint of prejudice requires exclusion,
see United States v.
Echeverri
,
IV.
For the foregoing reasons, we will affirm the judgment of the District Court.
Notes
[1] Counts Four, Six and Seven charged Blyden only with assault, money laundering and fraud offenses.
[2] This is a point which we emphasize: the calendar of the court, when not dealing with a speedy trial question, should not trump a defendant‟s Sixth Amendment rights; in weighing a request for a continuance, the court‟s calendar should only play a minor role.
[3] For the same reason, Mark‟s reference to Rule 404(b) as a basis for exclusion is misplaced.