UNITED STATES OF AMERICA v. JABREE WILLIAMS, a/k/a “MINUTE“; ROLANDO CRUZ, JR.; MARC HERNANDEZ, a/k/a Marky D.; ROSCOE VILLEGA; EUGENE RICE, also known as “B MOR“; DOUGLAS KELLY; ANGEL SCHUEG, a/k/a “POCKO“; MAURICE ATKINSON; ANTHONY SISTRUNK, a/k/a “KANYE“; TYREE EATMON, a/k/a Ree
Nos. 17-2111, 17-3191, 17-3373, 17-3586, 17-3711, 17-3777, 18-1012, 18-1324, 18-2468 and 19-1037
United States Court of Appeals for the Third Circuit
September 10, 2020
PRECEDENTIAL
v.
JABREE WILLIAMS, a/k/a “MINUTE”
Appellant in No. 17-2111
ROLANDO CRUZ, JR.,
Appellant in No. 17-3191
MARC HERNANDEZ, a/k/a Marky D.
Appellant in No. 17-3373
ROSCOE VILLEGA,
Appellant in No. 17-3586
EUGENE RICE, also known as “B MOR”
Appellant in No. 17-3711
DOUGLAS KELLY,
Appellant in No. 17-3777
ANGEL SCHUEG, a/k/a “POCKO”
Appellant in No. 18-1012
MAURICE ATKINSON,
Appellant in No. 18-1324
ANTHONY SISTRUNK a/k/a “KANYE”
Appellant in No. 18-2468
TYREE EATMON, a/k/a Ree,
Appellant in No. 19-1037
On Appeal from the United States District Court for the Middle District of Pennsylvania (D. C. Nos. 1-14-cr-00070-017; 1-14-cr-0070-004; 1-14-cr-0070-001; 1-14-cr-00070-003; 1-14-cr-00070-011; 1-14-cr-0070-002; 1-14-cr-00070-012; 1-14-cr-00070-008; 1-14-cr-00070-009; 1-14-cr-00070-006)
District Judge: Honorable Yvette Kane
Argued December 10, 2019
Before: RESTREPO, ROTH and FISHER, Circuit Judges.
(Filed: September 10, 2020)
Jonathan W. Crisp
Crisp & Associates
4031 North Front Street
Harrisburg, PA 17110
Counsel for Jabree Williams
Jeremy B. Gordon
Suite 106
1848 Lone Star Road
Mansfield, TX 76063
Counsel for Rolando Cruz, Jr.
Peter Goldberger [ARGUED]
50 Rittenhouse Place
Ardmore, PA 19003
Counsel for Marc Hernandez
Edson A. Bostic, Federal Public Defender
Tieffa N. Harper
Office of Federal Public Defender
800 King Street, Suite
Wilmington, DE 19801
Counsel for Roscoe Villega
G. Scott Gardner
2117 West 4th Street
Williamsport, PA 17701
Counsel for Eugene Rice
Richard F. Maffett, Jr
2201 North Second Street
Harrisburg, PA 17110
Counsel for Douglas Kelly
Terrence J. McGowan
Killian & Gephart
218 Pine Street
P.O. Box 886
Harrisburg, PA 17108
Counsel for Angel Schueg
John F. Yaninek [ARGUED]
Thomas Thomas & Hafer
305 North Front Street, 6th Floor
Harrisburg, PA 17101
Counsel for Maurice Atkinson
Daniel M. Myshin [ARGUED]
P.O. Box 33
Hummelstown, PA 17036
Counsel for Anthony Sistrunk
Andrew J. Shubin
333 South Allen Street
State College, PA 16801
Counsel for Tyree Eatmon
David Freed, United States Attorney
Michael A. Consiglio [ARGUED]
Office of United States Attorney
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108
Counsel for Appellee
OPINION OF THE COURT
FISHER, Circuit Judge.
In mid-September 2014, a federal grand jury in the U.S. District Court for the Middle District of Pennsylvania returned an indictment of twenty-one men from the South Side neighborhood of York, Pennsylvania. All twenty-one were charged on counts of racketeering conspiracy, drug-trafficking conspiracy, and drug trafficking. Four were also variously charged with federal firearms offenses related to the alleged trafficking. Although so called because of its geographic location in the city, South Side, the indictment alleged, had constituted since 2002 the identity of a criminal enterprise associated through its upper echelons with the Bloods, a national street gang. At the heart of the enterprise, it was said, lay an extensive drug-traf-ficking operation, conducted across a defined territory and nurtured in part through sporadic episodes of occasionally deadly violence involving rival gangs, gang affiliates, and, collaterally, members of the general public.
Over the course of the ensuing year, several of the defendants pleaded guilty. Twelve, however, proceeded to a joint trial, held over eight weeks from September to November 2015. The jury heard from well over one hundred witnesses, including some of the original twenty-one who chose to cooperate with the Government in the hope of a reduced sentence. The picture that emerged was of lives characterized by cycles of crime and incarceration, stretching across more than a decade and punctuated by moments of significant and sometimes reckless violence. The witnesses depicted widespread drug dealing in crack cocaine and heroin. They told of territorial rivalries, market competition, and personal feuds. They recounted episodes of threat and retaliation, attack and retribution. But they also described friendship, loyalty, and loss; pride and fear; ambition, and great ability left unrealized. In the end, all twelve defendants were convicted on one or more of the charges against them, and in the years thereafter were sentenced to, among other things, terms of imprisonment ranging from sixty months to life.
Ten of the twelve (the Defendants) now appeal their convictions and sentences on a variety of grounds, advanced both severally and collectively. These issues, which span more or less all the relevant phases of a criminal prosecution, can be divided
For the reasons that follow, we will affirm the Defendants’ judgments of conviction. We will also affirm the judgments of sentence of Jabree Williams and Eugene Rice. But we will vacate either in whole or in part the other Defendants’ judgments of sentence, and remand the cases of Marc Hernandez and Angel Schueg for resentencing proceedings consistent with this opinion.
I. BACKGROUND
A. Investigation and Indictment
These cases began with an act of cooperative federalism.1 At the initiation of, and together with, local law enforcement, the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) conducted a multiyear investigation into drug trafficking and violence in the city of York, Pennsylvania. The investigation centered on what the Government called “the Southside Gang,” after the neighborhood in which it was said to operate. Over the first decade of the current century, York law enforcement officials perceived in the city a pattern of escalating violence that they attributed primarily to a rivalry between the South Side and Parkway, another supposed gang, named for a public housing project in the northern part of York. The Government associated this violence, which also occasionally involved other neighborhood groups, with the widespread drug trafficking throughout the South Side. It was believed that the principal sources of these drugs—and concomitantly of the increased violence—were individuals affiliated with the Bloods, who had developed the South Side‘s existing drug trafficking into a more organized operation.
Legal proceedings began in mid-March 2014, when a grand jury in the Middle District of Pennsylvania returned an indictment of three men, Hernandez, Roscoe Villega, and Douglas Kelly, charging them on counts of drug-trafficking conspiracy and drug trafficking. Shortly thereafter,
In September, the grand jury returned a second superseding indictment that vastly expanded the scope and ambition of the prosecution. The indictment now listed twenty-one defendants, including the original four. It charged all twenty-one on three counts: (I) conspiracy to violate
relation to or in furtherance of a drug-trafficking crime,
B. Jury Selection
One year later, in September 2015, twelve of the twenty-one defendants proceeded to a consolidated trial before the Honorable Yvette Kane. On Friday, September 18, with jury selection set to begin the following Monday, the District Court issued a series of orders related to the upcoming voir dire. See D. Ct. Dkt. Nos. 733-40. One such order stated:
AND NOW, on this 18th day of September, 2015, IT IS HEREBY ORDERED THAT due to courtroom capacity limitations, only (1) court personnel, (2) defendants, (3) trial counsel and support staff, and (4) prospective jurors shall be allowed in the courtroom during jury selection. No other individuals will be present except by express authorization of the Court.
App. 10.5 Other than the concern with “courtroom capacity limitations,” there is no further indication in the record of the
District Court‘s rationale for conditionally barring the public from the jury-selection proceedings. There is also no evidence of
Jury selection lasted for two days, concluding on Tuesday, September 22. During the process, Cruz‘s trial counsel, Michael Wiseman, brought a Batson challenge to the Government‘s first peremptory strike of a prospective juror. The District Court heard the objection in chambers rather than in the courtroom itself, announcing its decision to do so in open court. The District Court ultimately ruled that the Government‘s strike was not motivated by purposeful discrimination. After the hearing, several defense counsel, led by John Yaninek, counsel for Maurice Atkinson, objected to the District Court‘s decision to hear the challenge out of open court. The District Court provided a detailed description of the hearing and the reasons for its ruling, and Yaninek pursued the objection no further at the time. All defense counsel thereafter professed themselves satisfied with the jury members, who were duly sworn.
The trial commenced the next day, September 23, 2015. It appears that all other proceedings were open to the public.
C. Trial
The Government‘s theory was that the defendants’ identification with the South Side constituted a continuing, willful participation in a criminal enterprise. The defense generally countered that, despite the illegal activity that undoubtedly occurred, expressions of a South Side identity reflected at most a kind of autochthonous pride, a loyalty borne of a common home, and did not amount to the existence of a South Side gang or criminal organization.
Witnesses depicted widespread drug trafficking that was organized, or at least differentiated, according to street blocks. Each block had a group, or “crew,” of individuals who would “affiliate with each other,” chiefly through selling drugs, and in particular crack cocaine. App. 1523. Some crews’ operations were more organized or structured, but a person from any of the crews could, without incident, sell drugs throughout the South Side. The most prominent of these groups was located at Maple and Duke Streets, near what was called the Jungle—an area formed by four streets, George, Queen, South, and Maple, with Duke running through it. The Maple and Duke crew was said to be made up largely of an older generation of South Side drug dealers. At various points, witnesses associated Rice, Schueg, Atkinson, Anthony Sistrunk, and Tyree Eatmon with Maple and Duke, while Williams was said to be part of another crew, Maple and Manor. By contrast, witnesses described Cruz, Hernandez, and Kelly as principally distributors of crack to street-level dealers. Villega was identified as an associate of Cruz and Hernandez who dealt in crack and heroin.
Together with the descriptions of drug trafficking were accounts of episodic violence. Members of the crews would carry or store away firearms for protection, and they would often retaliate when a fellow South Side member was attacked. These episodes frequently involved individuals from Parkway, who were described as rivals, but also occasionally other persons. Witnesses recalled, among other incidents, reprisals for the wanton killing of a nine-year-old girl, Ciara Savage, on Mother‘s Day in 2009, a violent altercation between South Side and Parkway members at a gas station and store named Rutter‘s, and the severe beating and eventual murder of a man in the parking lot of a York restaurant
D. Verdicts and Sentencing
The jury returned its verdicts on November 16, 2015, announcing them seriatim, with only the relevant defendant present. All twelve defendants were found guilty on one or more of the counts against them. They were subsequently sentenced to various periods of incarceration and ordered to pay certain fines and costs.
The convictions and sentences of imprisonment of the ten Defendants who have appealed to our Court are as follows:
- Williams: Convicted on Count III; sentenced to 60 months of imprisonment.6
- Cruz: Convicted on Counts I, II, III, V, and VI; sentenced to life terms of imprisonment on Counts I-III, 5 years on Count V, and 20 years on Count VI. The terms on Counts I-III and VI are concurrent; the term on Count V is consecutive to those sentences.
- Hernandez: Convicted on Counts I, II, III, V, and VI; sentenced to life terms of imprisonment on Counts I-III, 20 years on Count VI, and 60 months on Count V. The terms on Counts I-III and VI are concurrent; the term on Count V is consecutive to the other sentences.
- Villega: Convicted on Counts I, II, and III; sentenced to 300 months in prison on each count, to be served concurrently.
- Rice: Convicted on Counts II and III; sentenced to 200 months in prison on each count, to be served concurrently.
- Kelly: Convicted on Counts I, II, and III; sentenced to life terms of imprisonment on each count, to be served concurrently.
- Schueg: Convicted on Counts II and III; sentenced to 165 months in prison on each count, to be served concurrently.
- Atkinson: Convicted on Counts I, II, and III; sentenced to life terms of imprisonment on each count, to be served concurrently.
- Sistrunk: Convicted on Counts I, II, and III; sentenced to 360 months in prison on each count, to be served concurrently.
- Eatmon: Convicted on Counts I, II, and III; sentenced to 260 months in prison on each count, to be served concurrently.
On appeal, these Defendants raise numerous issues, described above, touching their convictions and sentences.7 We have jurisdiction
II. THE PUBLIC-TRIAL ERROR
We begin with the District Court‘s closure of the courtroom to the public during jury selection. Because a ruling for the Defendants on this issue would entail a reversal of their convictions and remand for a new trial, we confront this question at the outset. For the reasons that follow, we will not exercise our discretion to correct the error.
A. Our Review Is for Plain Error
Review of a constitutional error of criminal procedure is at bottom a matter of rights and remedies: whether a constitutional right has been violated, and whether a remedy shall be provided for that violation. The District Court‘s closure of the courtroom undoubtedly violated the Defendants’ Sixth Amendment right to public trial, Presley v. Georgia, 558 U.S. 209, 213 (2010) (per curiam), and under Supreme Court precedent that sort of violation is a “structural” error, see Arizona v. Fulminante, 499 U.S. 279, 310 (1991) (citing Waller v. Georgia, 467 U.S. 39, 49 n.9 (1984)). Ordinarily contrasted with constitutional errors subject to “harmless-error analysis,” Fulminante, 499 U.S. at 306, this category represents “a limited class of fundamental constitutional errors that,” Neder v. United States, 527 U.S. 1, 7 (1999), by their very nature, “affect substantial rights” and so cannot be “disregarded,”
Yet the Federal Rules of Criminal Procedure also distinguish between preserved and unpreserved errors. A party can invoke Rule 52(a) on appeal only if he timely objected to the error, thus giving the district court the opportunity to rectify, or at least respond to, the purported problem. See
A federal appellate court‘s authority to remedy an unpreserved error “is strictly circumscribed.” Puckett v. United States, 556 U.S. 129, 134 (2009). Following the text of Rule 52(b), the Supreme Court has described a four-part inquiry for plain-error review. There must: (1) be an “error” that (2) is “plain” and (3) “affects substantial rights.” United States v. Olano, 507 U.S. 725, 732 (1993) (alteration omitted) (quoting
B. Olano Prong Three
“[I]n most cases,” for an unpreserved error to affect substantial rights it “must have been prejudicial“—that is, “[i]t must have affected the outcome of the district court proceedings.” Olano, 507 U.S. at 734. The defendant ordinarily has the burden of showing “a reasonable probability that, but for the error claimed, the result of the proceeding would have been different.” United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004) (alteration omitted) (quoting United States v. Bagley, 473 U.S. 667, 682 (1985) (opinion of Blackmun, J.)). However, the Court in Olano also acknowledged that “[t]here may be a special category of forfeited errors that can be corrected regardless of their effect on the outcome.” 507 U.S. at 735. Hernandez urges us not only to associate this “special category” with structural error, but also to give the error here the same effect it would have in the Rule 52(a) context—automatic reversal of the convictions. We cannot accept this argument.
The Supreme Court has never held that Olano‘s “special category” includes or is the same as that of structural error. It therefore remains at least unclear whether a structural error ipso facto satisfies Olano‘s third prong. The Court has consistently acknowledged but declined to address this possibility. See United States v. Marcus, 560 U.S. 258, 263 (2010); Puckett, 556 U.S. at 140-41; United States v. Cotton, 535 U.S. 625, 632-33 (2002); Johnson, 520 U.S. at 469; see also Dominguez Benitez, 542 U.S. at 82 (suggesting that Olano‘s third prong should be treated as “[]tethered to a prejudice requirement” in cases of “nonstructural error“). We too find it unnecessary to take that doctrinal leap here. Because, as detailed below, a federal appellate court‘s evaluation of Olano‘s fourth prong is independent of whether the third has been satisfied, and the District Court‘s error in this case did not “seriously affect the fairness, integrity or public reputation of judicial proceedings,” Olano, 507 U.S. at 736, we do not need to decide whether the error also affected the Defendants’ substantial rights.9
C. Olano Prong Four
1. Structural Error Generally
The fact that a type of error has been deemed “structural” has no independent significance for applying Olano‘s fourth prong. In all direct appeals arising in the federal system, “the seriousness of the error claimed does not remove consideration of it from the ambit of the Federal Rules of Criminal Procedure.” Johnson, 520 U.S. at 466. Rule 52(b) states that a court “may” consider “[a] plain error that affects substantial rights.” If Olano‘s first three prongs are satisfied, the court of appeals has the “authority” to
Nevertheless, although a structural error is not to be given automatic effect in the Rule 52(b) context, the same considerations that in other contexts render its correction automatic may coincide with the appropriate exercise of judicial discretion to notice an unpreserved error. A structural defect is an error “affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.” Fulminante, 499 U.S. at 310. When such an error occurs over a contemporaneous objection, the trial “cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair.” Id. (quoting Rose v. Clark, 478 U.S. 570, 577-78 (1986)). The origins of Rule 52(b) lie in the recognition that “if a plain error was committed in a matter so absolutely vital to defendants,” the reviewing court is “at liberty to correct it.” Wiborg v. United States, 163 U.S. 632, 658 (1896). When the error threatens “the fair and impartial conduct of the trial,” the fact that it was not raised contemporaneously “does not preclude [the appellate court] from correcting [it].” Brasfield v. United States, 272 U.S. 448, 450 (1926). As the Supreme Court said in its most recent case on this issue, “the public legitimacy of our justice system relies on procedures that are neutral, accu-rate, consistent, trustworthy, and fair, and that provide opportunities for error correction.” Rosales-Mireles v. United States, 138 S. Ct. 1897, 1908 (2018) (internal quotation marks omitted).
Therefore, even when confronting a structural error, a federal court of appeals should evaluate the error in the context of the unique circumstances of the proceeding as a whole to determine whether the error warrants remedial action. See id. at 1909 (“[A]ny exercise of discretion at the fourth prong of Olano inherently requires ‘a case-specific and fact-intensive’ inquiry.” (quoting Puckett, 556 U.S. at 142)). The very nature of the error may warrant a remedy in the ordinary case, id. at 1909 n.4, and actual innocence is dispositive, Olano, 507 U.S. at 736, but these are not the same as automatic reversal. In all direct appeals from a criminal conviction in the federal system, the discretion contemplated by Rule 52(b) is to be preserved.
2. Public-Trial Error Specifically
This conclusion receives additional support from our own and the Supreme Court‘s case law on violations of the Sixth Amendment right to a public trial.
The presence of a contemporaneous objection is an important reason why violations of that right were deemed structural error. As early as 1949—in a case, like the present ones, from the Middle District of Pennsylvania—our Court reversed a criminal conviction and remanded for a new trial due to a Sixth Amendment public-trial
a public trial need not prove actual prejudice” on appeal. United States ex rel. Bennett v. Rundle, 419 F.2d 599, 608 (3d Cir. 1969) (en banc).
The Supreme Court has expressed similar sentiments. Like Rundle, Waller concerned a Sixth Amendment challenge to a state trial court‘s closure of a suppression hearing. Under its First Amendment precedent, the Court noted, “the right to an open trial” is generally, but not absolutely, paramount. Waller, 467 U.S. at 45 (citing, e.g., Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984)). To justify a closure, there must be “an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.” Id. at 48. Waller extended this framework to the Sixth Amendment, holding “that under the Sixth Amendment any closure of a suppression hearing over the objections of the accused must meet the tests set out in Press-Enterprise and its predecessors.” Id. at 47 (emphasis added). The Court later applied this standard to a state court‘s closure of jury selection to the public. Presley, 558 U.S. at 213. As in Waller, defense counsel had objected contemporaneously. Id. at 210. Under these cases, then, a violation of the right to a public trial is a reversible error when a party lodges a contemporaneous objection and the trial court fails to articulate the interest behind the closure or to make the appropriate findings.
The Supreme Court‘s first consideration of a Sixth Amendment public-trial violation in the absence of a contemporaneous objection came in Weaver v. Massachusetts, 137 S. Ct. 1899 (2017). Yet that case arose not under
Our principal question must be whether and how Weaver‘s analysis in the collateral-review
In sum, both our own and the Supreme Court‘s jurisprudence on the Sixth Amendment right to a public trial support the application here of the “case-specific and fact-intensive inquiry” that a federal appellate court is normally to conduct under Olano‘s fourth prong. Rosales-Mireles, 138 S. Ct. at 1909 (internal quotation marks omitted).
3. The Legal Standard
Given the relative novelty of a public-trial error reviewed under
First, in determining the costs of inaction, the Supreme Court has focused chiefly upon the error‘s effect on the values or interests protected by the violated right. For example, at stake in Rosales-Mireles—which involved a Sentencing Guidelines calculation error—was the defendant‘s liberty, and an error “reasonably likely to have resulted in a longer prison sentence than necessary” sufficiently compromised that interest to advise correction. 138 S. Ct. at 1910. A reasonable citizen, the Court noted, would “bear a rightly diminished view of the judicial process and its integrity” if the error were allowed to stand. Id. at 1908 (quoting United States v. Sabillon-Umana, 772 F.3d 1328, 1333-34 (10th Cir. 2014)); see also United States v. Dahl, 833 F.3d 345, 359 (3d Cir. 2016).
Similarly, in other contexts, the Court has looked to the error‘s effect on the jury‘s verdict. In Cotton and Johnson, the interests underlying the right at issue11 were not so compromised that correction was warranted—in each case,
Evaluation of the degree to which an error has compromised the violated right‘s underlying values or interests does not, however, necessarily reduce to a determination of whether the error likely altered the outcome of the proceeding. Though a “court of appeals should no doubt correct a plain forfeited error that causes the conviction or sentencing of an actually innocent defendant,” the Supreme Court has “never held that a
Second, against these considerations of the costs of inaction, the Court has weighed the costs to the fairness, integrity, and public reputation of judicial proceedings that would alternatively result from noticing the error. In Rosales-Mireles, the Court noted “the relative ease of correcting the error,” id. at 1908, commenting that “a remand for resentencing, while not costless, does not invoke the same difficulties as a remand for retrial does,” id. (quoting Molina-Martinez v. United States, 136 S. Ct. 1338, 1348-49 (2016)); see also United States v. Williams, 399 F.3d 450, 456 (2d Cir. 2005) (“A legal system seeks to protect rights, but it also takes into account the costs in time, resources, and disruption in the lives of participants . . . that result when a case must be tried a second time.“). And in Cotton and Johnson, the Court perceived “[t]he real threat ... to the fairness, integrity, and public reputation of judicial proceedings” to be if the error were corrected “despite the overwhelming and uncontroverted evidence that” the outcome of the proceeding would have been the same regardless. Cotton, 535 U.S. at 634 (internal quotation marks omitted); see also Johnson, 520 U.S. at 470.
4. Application and Resolution
Applying this standard, we conclude that the District Court‘s error does not warrant reversal of the Defendants’ convictions and remand for a new trial.12
The District Court‘s September 18 order stated that, “due to courtroom capacity limitations,” only court personnel, defendants, trial counsel and support staff, and prospective jurors would be allowed in the courtroom during jury selection. App. 10. All other individuals could be present only “by express authorization of the Court.” Id. As noted above, the record gives no further indication of the District Court‘s rationale for issuing the order. There is no evidence that any party or member of the press or public objected to the order, nor is there any evidence of an individual or news organization either seeking authorization from the District Court or being turned away after attempting to attend the proceedings. Jury selection ultimately lasted only two days, September 21 and 22, with the trial beginning on September 23. All other proceedings were open to the public, and a transcript of the jury voir dire was later made available.
Even on this sparse record, there are facts that suggest some costs should the error remain uncorrected. The closure order came from the District Court itself and extended across an entire phase of the trial. The Court apparently issued the order unprompted, and there is no indication that it—albeit without objection to the order by the parties, counsel, or the public—considered reasonable alternatives. It is undeniable that the order to some degree compromised the values underlying the public-trial right. It had the potential to call into question the fairness, integrity, and public reputation of judicial proceedings because it stamped the violation of the Defendants’ Sixth Amendment right with the imprimatur of the federal judiciary itself, thereby undermining public confidence in its impartiality.
Nevertheless, there are several countervailing factors that sufficiently mitigate this possibility. For one, although the closure encompassed all of the jury-selection phase, those proceedings lasted only two days; the public had access to all other phases of the trial, which in total lasted longer than seven weeks. See, e.g., Weaver, 137 S. Ct. at 1913 (“The closure was limited to the jury voir dire; the courtroom remained open during the evidentiary phase of the trial.“); Press-Enterprise, 464 U.S. at 510 (finding it significant that “[a]lthough three days of voir dire in this case were open to the public, six weeks of the proceedings were closed” (emphasis in original)). Further, a transcript of the proceedings was produced
The ways, then, in which the closure potentially compromised the values protected by the Defendants’ Sixth Amendment right are answered by countervailing factors suggesting that those values were in other respects substantially vindicated—that, in spite of the closure, the jury-selection proceedings possessed the publicity, neutrality, and professionalism that are essential components of upholding an accused‘s right to a fair and public trial. Allowing the error to stand would not leave in place an unmitigated nullification of the values and interests underlying the right at issue.
Second, the costs of remedial action here would be significant. Unlike in Rosales-Mireles, we are confronted with a remand for a new trial in ten consolidated cases whose original trial occurred almost five years ago, spanned approximately two months, and involved well over one hundred witnesses. But even in the absence of the heavy burdens specific to these cases, the prospect of retrial demands “a high degree of caution,” Rosales-Mireles, 138 S. Ct. at 1909, and implicates more fully the Supreme Court‘s admonition that we exercise our discretion under
***
The practical costs of correcting the District Court‘s error are not dispositive,14 but
III. RIGHT-TO-PRESENCE CHALLENGE
Atkinson argues that the District Court‘s in camera resolution of the Batson challenge during jury selection violated his constitutional “right to personal presence at all critical stages of the trial.” Rushen v. Spain, 464 U.S. 114, 117 (1983) (per curiam); see also Kentucky v. Stincer, 482 U.S. 730, 745 (1987). He further contends that the exclusion was sufficiently prejudicial to warrant a new trial. The Supreme Court has made clear that violations of the right to be present are subject to harmless-error review. See Fulminante, 499 U.S. at 306-07 (citing Rushen, 464 U.S. at 117-18 & n.2). We may assume without deciding that there was a violation here, because even if an error occurred, “it was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24 (1967).16
In evaluating a putative equal protection violation under Batson, trial courts are to follow a three-step process. First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race. Second, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question. Third, in light of the parties’ submissions, the trial court must determine
Here, there is no reasonable basis for concluding that prejudice resulted from the District Court‘s conduct of the Batson hearing. At no point during the hearing or afterward did the District Court or defense counsel suggest that any of the Government‘s proffered reasons were pretextual, that the Government had misrepresented the record, or that any other circumstantial evidence suggested racial bias. Indeed, Wiseman—who had raised the objection and was one of two defense counsel present—acknowledged at the hearing, and Atkinson concedes on appeal, that the Government “stated race-neutral reasons.” App. 667. And when Wiseman and Royce Morris, the other defense attorney present, questioned whether the characteristics that led the Government to strike the juror were unique among the persons in the venire, the District Court proceeded, with Wiseman and Morris‘s assistance, to search the questionnaires for any other remaining juror with characteristics similar those for which the juror was struck—in particular, the existence of multiple relatives who had been criminally convicted and imprisoned, including for drug trafficking. The search revealed no comparable jurors still on the panel. The record before us provides no basis for doubting the District Court‘s side-by-side comparison of the jurors. See Davis v. Ayala, 576 U.S. 257, 274 (2015).17 Finally, we have not been shown any evidence that might otherwise contradict the Government‘s representations or suggest that it acted on grounds of racial animus.
In sum, we have no reason to conclude that Atkinson‘s absence from the Batson hearing was prejudicial. If, therefore, “the alleged constitutional error” occurred, it was “harmless beyond a reasonable doubt.” Rushen, 464 U.S. at 121.
IV. EVIDENTIARY CHALLENGES
The Defendants’ evidentiary challenges fall into three basic categories. First, Kelly
A. Suppression
Shortly after the grand jury returned its initial indictment in March 2014, federal agents searched Kelly‘s apartment at 337 East Philadelphia Street in York, seizing evidence later introduced at trial. Almost exactly six months later, just after the return of the second superseding indictment, agents conducted a similar search of Sistrunk‘s apartment, located at 326 West Philadelphia Street, also seizing evidence that was later introduced. The Government conducted each search pursuant to a warrant issued by Magistrate Judge Carlson. ATF Special Agent Scott Endy signed the warrant applications and attached a sworn affidavit to each of them, detailing his decades-long experience in federal law enforcement, the history of the South Side investigation, and the basis for probable cause. To establish the latter, he relied in part upon information provided by several confidential informants relating to Kelly and Sistrunk‘s drug-trafficking activities.
Approximately two months before the trial, Kelly and Sistrunk filed motions to suppress the evidence obtained from the searches. They contended that the information in the affidavits was insufficient to establish a factual basis for probable cause and that the exclusionary rule‘s good-faith exception did not apply. The District Court held hearings on the motions on August 28, 2015 and denied both of them less than a week later. It included with each of its orders a memorandum explaining its decision. Kelly and Sistrunk now appeal those orders, raising largely the same arguments they did before the District Court.
1. Kelly
“[N]o Warrants shall issue,” the
The Legal Standard
“Our review of the denial of a motion to suppress is for clear error as to the District Court‘s findings of fact, and plenary as to legal conclusions in light of those facts.” United States v. Hester, 910 F.3d 78, 84 (3d Cir. 2018). In contexts like the present, though, that latter standard applies only to our review of “the District Court‘s evaluation of the magistrate‘s probable cause determination.” United States v. Stearn, 597 F.3d 540, 554 (3d Cir. 2010). We pay great deference to the magistrate‘s initial determination, asking only “whether ‘the magistrate had a substantial basis for concluding that probable cause existed.‘” Id. (quoting Illinois v. Gates, 462 U.S. 213, 238-39 (1983)). It is distinctly the magistrate‘s task to make the “practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying
Specifically, “[w]hen the crime under investigation is drug distribution, a magistrate may find probable cause to search the target‘s residence even without direct evidence that contraband will be found there.” Stearn, 597 F.3d at 558. We have long maintained that when a suspect is involved in drug trafficking, on a significant scale or for an extended period of time, it is reasonable to infer that he would store evidence of that illicit activity in his home. See United States v. Hodge, 246 F.3d 301, 306 (3d Cir. 2001); United States v. Whitner, 219 F.3d 289, 297-98 (3d Cir. 2000). It is insufficient, however, if the affidavit suggests only that the suspect “is actually a drug dealer” and “that the place to be searched is possessed by, or the domicile of, the [suspect].” United States v. Burton, 288 F.3d 91, 104 (3d Cir. 2002). There must also be evidence “linking [the targeted location] to the [suspect]‘s drug activities.” Id. (emphasis added). “[T]he search of a drug dealer‘s home would be unreasonable if the affidavit suggested no reason to believe contraband would be found there.” Stearn, 597 F.3d at 559.
Further, when (as here) the affidavit refers to information gained from confidential informants, bare conclusory assertions by the affiant of the reliability and veracity of the informants are insufficient. See Gates, 462 U.S. at 239. “Mere affirmance of belief or suspicion is not enough.” Nathanson v. United States, 290 U.S. 41, 47 (1933). But when “independent police work” substantially corroborates the information of a confidential informant, “an entirely different case” is presented. Gates, 462 U.S. at 241-42. “[C]orroborat[ion] in significant part by independent police investigation” may provide the requisite substantial basis for a magistrate‘s finding of probable cause, to which we will defer. Stearn, 597 F.3d at 556, 557-58; see also Gates, 462 U.S. at 246.
Application and Resolution
Informants told law enforcement of several interactions with Kelly related to drug trafficking. In September 2013, an informant identified Kelly in a photograph and stated that he had supplied the informant with crack “on numerous occasions in the recent past.” Kelly App. 120, ¶ 18. Another informant described a February 2014 encounter in which the informant asked Kelly for crack to distribute, and Kelly responded that he was going to Atlantic City to get some more cocaine. Around that same time, a third informant told a York police detective that Hernandez was supplying Kelly with large amounts of crack. These data points suggest that Kelly was at least involved in the sale and supply of crack cocaine shortly before the warrant issued.
That suggestion was corroborated by independent police work. The affidavit describes two incidents that occurred in September 2013. York law enforcement conducted a controlled delivery of $120 to Kelly through a confidential source who had been fronted cocaine. Six days later, law enforcement oversaw a controlled buy and delivery of crack involving Kelly. The source received the drugs earlier in the day, and later delivered $150 to Kelly “at 337 E. Philadelphia Street.” Kelly App. 129, ¶ 57. There was some dispute over this wording at the suppression hearing, and Kelly contends on appeal that it incorrectly implies that the transaction took place inside his residence, when the police report states that the transaction occurred in front of the building. For the reasons
The final relevant incident in the affidavit is the most significant. In early March 2014, about two weeks before Kelly was indicted, federal and local law enforcement (including Special Agent Endy) conducted a controlled purchase of crack from Kelly through a cooperating source. Surveillance documented Kelly leaving his East Philadelphia Street apartment, driving to the location, delivering (what was later confirmed to be) crack to the source, and then returning immediately to his apartment. “While we generally accept the common sense proposition that drug dealers often keep evidence of their transactions at home, that inference is much stronger when the home is the first place a drug dealer proceeds following such a transaction.” Burton, 288 F.3d at 104 (citation omitted).
In sum, independent police work corroborated the suggestion of multiple informants that Kelly was not an occasional street-level dealer, but one who consistently sold and supplied crack to others in the months and weeks leading up to the warrant application. Further, that police work provided evidence placing Kelly‘s residence on East Philadelphia Street in close spatial and temporal proximity to his illegal activity. Magistrate Judge Carlson therefore had ample basis to conclude there was “a fair probability that contraband or evidence of a crime w[ould] be found” at the apartment. Gates, 462 U.S. at 238.
2. Sistrunk
Our Court has “turn[ed] directly to the good faith issue” when we concluded that a defendant‘s probable-cause arguments did not “involve novel questions of law whose resolution is necessary to guide future action by law enforcement officers and magistrates.” United States v. Ninety-Two Thousand Four Hundred Twenty-Two Dollars & Fifty-Seven Cents, 307 F.3d 137, 145 (3d Cir. 2002) (alterations and internal quotation marks omitted); see United States v. Leon, 468 U.S. 897, 925 (1984). We think such a move is appropriate here, and we will affirm the denial of Sistrunk‘s motion on good-faith grounds.
The Legal Standard
“To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” Herring v. United States, 555 U.S. 135, 144 (2009). One triggering circumstance is when “the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth.” Leon, 468 U.S. at 923 (citing Franks v. Delaware, 438 U.S. 154 (1978)). The Franks rule, we have said, encompasses not only an affiant‘s assertions, but also his omissions. See Wilson v. Russo, 212 F.3d 781, 787 (3d Cir. 2000). Our standard for assertions “is that . . . ‘when viewing all the evidence, the affiant must have entertained serious doubts as to the truth of his statements or had obvious reasons to doubt the accuracy of the information he reported.‘” United States v. Brown, 631 F.3d 638, 645 (3d Cir. 2011) (quoting Wilson, 212 F.3d at 788). For omissions, by contrast, we ask whether the “officer withholds a fact in his ken that any reasonable person would have known . . . was the kind of thing the judge would wish to know.” Wilson, 212 F.3d at 788 (alteration and internal quotation marks omitted).
Although Wilson concerned an action under
This accordingly demands adjusting the application of the first prong when an affiant‘s alleged omissions are at issue. In the
Dempsey, 834 F.3d at 473 n.13 (noting that satisfaction of its standard does not necessarily amount to a finding of bad faith).
Application and Resolution
Sistrunk identifies four instances where Special Agent Endy allegedly omitted relevant facts, thereby “misle[ading] the magistrate judge in reckless disregard for the truth.” Sistrunk Br. at 26.
First, the affidavit states that on July 8, 2007, “a Southside gang member” was “fatally shot multiple times.” Sistrunk App. 170. A suspect later made “a statement to police [that] implicated Anthony Sistrunk as being . . . with him during the shooting.” Id. Sistrunk contends that this statement “fail[ed] to inform the . . . magistrate that [the suspect] exonerated [him] of any role in th[e] shooting.” Sistrunk Br. at 25.
Second, the affidavit relates that in April 2009, Sistrunk fled a vehicle stop and was later arrested. Police discovered two firearms in the vehicle. Sistrunk was later “convicted of fleeing or attempting to elude police.” Sistrunk App. 170. He now contends that this account omits the fact that some firearms-related charges were withdrawn, and that the jury acquitted him of other offenses.
Third, according to the affidavit, while Sistrunk was in prison in September 2009, an ATF Special Agent “obtained the inmate visitor list for Sistrunk which indicated an association with multiple Southside Gang members.” Sistrunk App. 170. Sistrunk argues that this information “failed to report that none of [his] co-defendants listed on his prison visitor list actually visited [him].” Sistrunk Br. at 26.
The fourth instance concerns the homicide of Christen Latham in November 2012. The affidavit states that “police identified . . . Sistrunk as being involved in an altercation with the victim prior to his murder.” Sistrunk App. 171. This account,
These alleged omissions do not amount to a deliberate or reckless concealment of facts both relevant to the magistrate‘s probable-cause inquiry and evincing a culpability worth the costs of suppression.18 The context is important. Special Agent Endy filed his warrant application on September 22, 2014—only five days after the grand jury returned the second superseding indictment. The application “clearly was supported by much more than a ‘bare bones’ affidavit“—it “related the results of an extensive investigation” that had already led to Sistrunk‘s indictment on conspiracy and drug-trafficking charges. Leon, 468 U.S. at 926. Moreover, none of the supposedly omitted facts negates, or even substantially mitigates, the intended implication of the related facts actually adduced: that, as the affidavit asserted, Sistrunk “ha[d] a long history of membership in the Southside Gang and ha[d] consistently engaged in or ha[d] been associated with criminal activity including drug trafficking, firearm possession and violence.” Sistrunk App. 174. As a result, Special Agent Endy‘s failure to include the facts does not evince the level of culpability necessary to
trigger the exclusionary rule. The costs of suppression here would far outweigh any concomitant deterrence effect.
B. Knowing Use of Perjured Testimony
During his testimony, Darvin Allen, one of the Government‘s principal witnesses, described a March 2009 episode of attack and retaliation between members of South Side and Parkway. Late one night at a club, Jahkeem Abney, a South Side member, got into a verbal dispute with some men from Parkway and was later shot in front of the club. A few days later, Allen recounted, several persons, including Atkinson, discussed how to respond to the shooting. Allen then testified that these same individuals drove up to Parkway and “engaged in gunfire” with Skylar Handy, one of the Parkway members at the club the night Abney was shot. App. 1647. On cross-examination, however, Atkinson‘s counsel, Yaninek, asked Allen if it would “make sense to [him]” that Atkinson was incarcerated in March 2009. App. 1801. Allen answered affirmatively and agreed that, as a result, Atkinson could not have been involved in the retaliatory shooting.19 Later, during the defense portion of the trial, Yaninek questioned Special Agent Endy, who had prepared Allen for trial. Endy acknowledged that his report of investigation included Allen‘s identification of Atkinson at the retaliatory shooting, and he accepted that
this was impossible, but he did not recall Allen testifying to that effect.
“A witness commits perjury if he or she ‘gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory.‘” United States v. Hoffecker, 530 F.3d 137, 183 (3d Cir. 2008) (quoting United States v. Dunnigan, 507 U.S. 87, 94 (1993)). Allen‘s testimony was not limited to the night club incident; it ranged across several years and recounted multiple shootings involving a number of different persons. That Allen could not remember precisely who was present at the March 2009 retaliatory shooting is therefore unsurprising, and it does not in itself demonstrate willful intent.
Further, Atkinson presents no evidence that Allen, at the time of his direct testimony, knew that Atkinson was incarcerated in March 2009. Compare Haskell v. Superintendent Greene SCI, 866 F.3d 139, 143, 146 (3d Cir. 2017), with Hoffecker, 530 F.3d at 183. Indeed, on cross-examination, when asked whether Atkinson was present at the retaliatory shooting, Allen replied that he knew Atkinson “committed a shooting at Skylar” Handy, but that he didn‘t “know if it was March because I think [Atkinson] went away.” App. 1801. And when Allen was affirmatively presented with the fact of Atkinson‘s incarceration, he readily allowed it. Given this testimony, we cannot but conclude that Allen‘s initial identification of Atkinson was simply the result of a “faulty memory.” Hoffecker, 530 F.3d at 183.
C. Admission
The final category of evidentiary challenges concerns the admission and exclusion of evidence at trial. On multiple occasions, it is argued, the District Court ran afoul of the relevance provisions of the
1. Relevance
We will disturb a district court‘s admission decision only if the court abused its discretion—if the decision “was arbitrary, fanciful or clearly unreasonable,” such that “no reasonable person would
Kelly‘s Nickname
The second superseding indictment included an alias, or street name, for each defendant. The one for Kelly was “Killer.” App. 18. Early in the trial, his attorney filed a motion in limine objecting to the Government‘s use of the alias as unfairly prejudicial because it suggested extrinsic evidence that Kelly had committed murder. The Government countered that certain witnesses knew Kelly only through his alias, and that it would use the nickname only to identify Kelly, thus preventing jury confusion. The District Court agreed with the Government. It also, at the conclusion of the trial, included a limiting instruction to the jury on this issue. Kelly now seeks a new trial, arguing that the “probative value” of the nickname evidence was “substantially outweighed by a danger of . . . unfair prejudice.”
Several of our sister circuits have long maintained that the prosecution‘s use of a defendant‘s alias in an indictment or at trial is permissible where the evidence is relevant—including for purposes of identifying the defendant—and does not result in unfair prejudice. See, e.g., United States v. Doe, 741 F.3d 217, 227 (1st Cir. 2013); United States v. Farmer, 583 F.3d 131, 144-47 (2d Cir. 2009); United States v. Emuegbunam, 268 F.3d 377, 394 (6th Cir. 2001); United States v. Delpit, 94 F.3d 1134, 1146 (8th Cir. 1996); United States v. Hines, 955 F.2d 1449, 1454 (11th Cir. 1992); United States v. Williams, 739 F.2d 297, 299-300 (7th Cir. 1984). We agree, and adopt this standard here.
The District Court‘s judgment easily passes muster. Allen knew Kelly only by his nickname, and the District Court engaged in a reasonable balancing of the testimony‘s relevance with the nickname‘s potential to generate unfair prejudice. Kelly points to no instance where either Allen or a later witness in the same position was able to identify him by anything else, nor does he indicate any moment where the Government used the alias to do anything other than identify him in a witness‘s testimony.20 Further, the District Court fortified its Rule 403 balancing by including the limiting instruction. We perceive no abuse of discretion in this course of events.
The Latham Homicide
A few hours after midnight on November 17, 2012, a Harrisburg man named Christen Latham died of a gunshot wound to the chest in the parking lot outside a York restaurant known as MoMo‘s. A verbal dispute inside the restaurant spilled out into the parking lot, where Latham was at first severely beaten by several men and then fatally shot. Police later identified Hernandez, Cruz, Kelly, and Schueg as either involved in or at least present at the altercation,21 but no charges were ever filed.
The Government sought at trial to introduce evidence suggesting the involvement of several defendants in the altercation, including testimony that Hernandez threw the first punch and circumstantial evidence that Kelly was the one who killed Latham.
Court denied the motion, ruling that the evidence was intrinsic to the RICO-conspiracy offense charged at Count I and that any danger of unfair prejudice did not substantially outweigh the evidence‘s probative value. Seven Defendants22 now contest one or both aspects of that ruling.
Intrinsic evidence need not be analyzed under
On this standard, the District Court here did not abuse its discretion. As we detail more fully below, both RICO and
drug-trafficking conspiracy are ultimately grounded in the general principles of conspiracy law. The Latham evidence implicates several of the Defendants and goes to their willingness to engage in concerted illegal action, amounting at its most serious to murder. The argument that the evidence has nothing to do with drug trafficking and the South Side-Parkway rivalry is therefore inapposite. Conspiracy is a single crime, even if it embraces a multitude of ends to be achieved over a period of time, by means that are not themselves the subject of agreement among the conspirators. See Frohwerk v. United States, 249 U.S. 204, 209-10 (1919); infra, Section V.B.1. In this light, a reasonable person could agree with the District Court that the Latham evidence serves directly to prove the existence of RICO conspiracy among the Defendants.
The Defendants’ Rule 403 challenges also fail. The fact that the evidence is intrinsic establishes its probative nature, and as the District Court pointed out, any evaluation of prejudicial effect here must be considered in the context of the totality of the evidence produced. “The jury,” the District Court observed, “has heard extensive evidence of Defendants’ and their alleged co-conspirators’ drug trafficking and gun possession, gang membership, multiple shootings directed at their rivals, shootouts on public streets involving feuding rivals in which children are shot and even killed, and evidence of multiple murders.”
2. Expert Testimony
It is well established that a district judge has a “general ‘gatekeeping’ obligation” with respect to all testimony based on specialized knowledge of some form. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999). Under
Sistrunk‘s Tattoo
The second superseding indictment included allegations that several South Side members were affiliated with the Bloods. Prior to trial, the Government announced its intention to have John Havens, a Special Agent with the Federal Bureau of Investigation, testify as an expert on the Bloods, detailing among other things their organization and symbols. Anticipating a challenge to this proffer, the District Court held a Daubert hearing. And when during trial the motion to exclude came, the District Court ruled in a memorandum opinion that most of it was admissible, but it excluded (among other things) testimony “as to any individual defendant except in the abstract.” D. Ct. Dkt. No. 860, at 11.
In support of its Blood-affiliation allegations, the Government sought to introduce depictions of a tattoo on Sistrunk‘s left bicep that read: “Live By The 5, Die By The [symbol of a gun].” App. 5127; Sistrunk App. 78. Special Agent Havens would not be shown the tattoo, the Government assured, but he would describe the significance of certain symbols, such as the number five. Sistrunk‘s attorney objected under Rule 403, arguing that this singled out his client in contradiction of the Daubert decision. The District Court admitted the evidence, and Sistrunk now appeals.
We find no abuse of discretion in the District Court‘s decision. Cooperating witnesses identified Sistrunk as a Blood. Further, according to testimony of Special Agent Endy, when federal agents executed the search warrant of Sistrunk‘s home, they found a letter signed, “Hat Boy, Low Ridah, Brim, Kanye.” App. 5016. Special Agent Endy testified that “Kanye” was Sistrunk‘s alias and that “Brim” was “a Blood set reference“—that is, a reference to a particular subgroup of Bloods. App. 5016. Sistrunk‘s argument that this testimony and evidence was minimal when compared to the voluminous trial record is irrelevant. At the very least, the testimony represents independent support, apart from the tattoo and Special Agent Havens‘s testimony, for the Government‘s theory was Sistrunk was affiliated with the Bloods.
Nor did the District Court‘s decision to admit the evidence unfairly single out Sistrunk in contradiction of the Daubert ruling. Under that decision, Special Agent Havens would not have testified as to Sistrunk in particular; the tattoo would have been introduced after Special Agent Havens‘s testimony, and the jury would have been allowed to infer, or not infer, a connection
The De La Cruz Criteria
One of the defense‘s principal expert witnesses was Dr. Jesse De La Cruz, a former gang member who earned a doctoral degree studying the gangs of Stockton, California. While conducting that research, he developed a set of eight characteristics common to the gang members he studied. Upon completion of his degree, Dr. De La Cruz began to testify as an expert witness, determining whether a criminal defendant possessed all or most of the characteristics. He interviewed all twelve defendants and was prepared to say whether they met his criteria.
The Government challenged that proposed testimony under
This was not reversible error. It may be true that Dr. De La Cruz‘s application of the eight criteria would not have constituted “the last step in the inferential process—a conclusion as to the [defendants‘] mental state.” United States v. Watson, 260 F.3d 301, 309 (3d Cir. 2001) (citation omitted). As we de-
scribe in Section V.B.1 below, a RICO enterprise may still exist even if it does not amount to a gang, nor does gang membership in itself prove RICO conspiracy. Yet that distinction illustrates the problematic nature of the testimony. The probative value was minimal unless one associates gang membership with RICO conspiracy, and so any testimony to that effect would have served, as the District Court said, only to “confuse and mislead the jury.” App. 5755. “The trial judge has broad discretion to admit or exclude expert testimony, based upon whether it is helpful to the trier of fact.” Gibbs, 190 F.3d at 211. In this light, we cannot say the District Court abused its discretion in excluding the testimony.
V. SUFFICIENCY OF THE EVIDENCE
We turn now to a series of interlocking challenges to the sufficiency of the evidence supporting the jury‘s verdicts. The operative indictment charged all the Defendants in Counts I, II, and III: RICO conspiracy,
to life. See
For the reasons that follow, we will affirm the judgments of conviction. We also shall affirm the jury‘s Count II drug-quantity verdicts insofar as they bear on the Defendants’ statutory maximum terms of imprisonment.
A. The Rowe Error
We begin with the legal framework governing our inquiry. Nearly three and a half years after trial, and after all the Defendants had been sentenced, our Court in United States v. Rowe, 919 F.3d 752 (3d Cir. 2019), clarified the effect of Alleyne v. United States, 570 U.S. 99 (2013), upon the distribution and possession elements of
quantities specified in
The parties agree that under Rowe the evidence was insufficient to support the Count III verdicts attributing to the Defendants the
1. Standard of Review
When a new rule is issued during the pendency of a direct criminal appeal, it is the appellate court‘s duty to “apply the law in effect at the time it renders its decision.” United States v. Johnson, 899 F.3d 191, 199 (3d Cir. 2018) (quoting Henderson v. United States, 568 U.S. 266, 271 (2013)). But that does not necessarily determine
The standard for preserving an argument on a Rule 29 motion remains an open question in our circuit. In United States v. Joseph, 730 F.3d 336 (3d Cir. 2013), we drew a distinction between “issues” and “arguments,” noting that the former “can encompass more than one of the latter.” Id. at 340. We then held that, in the evidence-suppression context, “for parties to preserve an argument for appeal, they must have raised the same argument in the District Court—merely raising an issue that encompasses the appellate argument” results in waiver of the argument. Id. at 337 (emphases omitted). The Government invites us to apply this standard here.
Nearly all of our sister circuits, though, have settled on a somewhat different standard. One has said that when a defendant makes “general motions pursuant to Rule 29 for acquittal, generally arguing that the government presented insufficient evidence,” he has “preserved his sufficiency claims for appeal.” United States v. Hoy, 137 F.3d 726, 729 (2d Cir. 1998). Others have maintained that “[w]hen a defendant raises specific grounds in a Rule 29 motion, grounds that are not specifically raised” are subject to some form of plain-error review, if not waived, on appeal. United States v. Chong Lam, 677 F.3d 190, 200 (4th Cir. 2012) (emphasis omitted).27 A plurality of circuits has explicitly adopted both of these standards.28 Only the Fifth Circuit applies a Joseph-like standard in the Rule 29 context. See United States v. McDowell, 498 F.3d 308, 312-13 (5th Cir. 2007).
We think uniformity in federal criminal practice has value, and so we decline to import Joseph wholesale here. It is unnecessary, though, to diverge too far from Joseph and hold
that a broadly stated Rule 29 motion preserves all arguments bearing on the sufficiency of the evidence. It is enough to accept here that when a Rule 29 motion raises specific grounds, or arguments (in the Joseph sense), all such arguments not raised are unpreserved on appeal. Sistrunk‘s motion raised a narrow factual argument regarding the testimony of a witness. That is a specific ground distinct from the Rowe argument, rendering the latter unpreserved. Our principal divergence from Joseph comes in how to treat the error: we will review for plain error.29
The parties agree that Olano‘s first and second prongs are satisfied, and so
at 101 (emphases omitted).
A similar approach is appropriate here. A Rowe error‘s principal effect goes to the sentence imposed. The “aggravated crime,” Alleyne, 570 U.S. at 116, charged in Count III encompasses the “lesser included offense” of a “[v]iolation of
To determine whether the Defendants’ sentences would have been different absent the Rowe error, we may look in the first instance to the evidence supporting the verdicts on Count II—drug-trafficking conspiracy under
contest their convictions on Count II. These six were sentenced to concurrent terms of imprisonment on both counts. See supra Section I.D. If the evidence is sufficient to support the jury‘s drug-quantity attributions on Count II—and, in particular, the resulting maximum term of imprisonment under
2. Section 846 Conspiracy and Drug Quantity: The Legal Standard
Hernandez and Sistrunk contend that Rowe and Alleyne also affect our evaluation of the evidence supporting the drug-quantity verdicts on Count II. In particular, they argue that those decisions either transformed drug quantity into a mens rea element of
Mental Element
Section 846 does not demand that a person conspire to distribute a particular quantity of a controlled substance. To see why, we must begin with the underlying statute. Under
This interpretation is consistent with Apprendi and Alleyne. The Court in those cases operated on an expansive definition of “crime” according to its “invariable linkage” with punishment, Apprendi, 530 U.S. at 478, rather than specifically the conduct and mental state deemed illegal. Yet the decisions did not fundamentally affect legislative authority to define a crime‘s elements. In Apprendi, for example, the Court noted that traditionally, an indictment under a criminal statute that “annexe[d] a higher degree of punishment to a common-law felony, if committed under particular circumstances,” needed to charge both “the circumstances of the crime and the intent
of the defendant at the time of commission,” and “the circumstances mandating [the higher] punishment.” Id. at 480 (quoting John Archbold, Pleading and Evidence in Criminal Cases 51 (15th ed. 1862)). Both were “essential elements to be alleged,” id., but a prosecutor could fail to prove the latter and still prove that the felony had been committed, id. at 480-81 (citing Archbold, supra, at 188). As a result, although bundled in the broader concept of an “aggravated” crime, the statutory definitions of “[t]he core crime” and the “triggering” fact remain the same. Alleyne, 570 U.S. at 113. In the context of
The same logic applies to drug-trafficking conspiracies under
Drug-Quantity Aggregation
The Defendants alternatively argue that just as Rowe and Alleyne bar the aggregation of drug quantity for discrete violations of
In Gori, we recognized that the general principles of conspiracy law may influence a defendant‘s sentencing exposure under
It is elementary that the “agreement to commit an offense does not become several conspiracies because it continues over a period of time.” Braverman v. United States, 317 U.S. 49, 52 (1942). “[A] single continuing agreement to commit several offenses” is equally a violation of the relevant conspiracy statute as a one-off agreement to commit a single offense. Id.; see also United States v. Kissel, 218 U.S. 601, 607 (1910). Gori simply applied this principle in the context of a
Yet, importantly, Gori concerned the aggregation of drug quantities arising from the offenses of the same defendant. See 324 F.3d at 236. Equally central to conspiracy law is the concept of co-conspirator liability. “It has always been, . . . and is still, the law that, after prima facie evidence of an unlawful combination has been introduced, the act of any one of the co-conspirators in furtherance of such combination may be properly given in evidence against all.” Bannon v. United States, 156 U.S. 464, 469 (1895). The “unlawful agreement contemplated precisely what was [to be] done,” it “was formed for the purpose” of committing a crime or crimes, and so the “act of one partner in crime is attributable to all.” Pinkerton v. United States, 328 U.S. 640, 647 (1946). Although thus expanding liability, this logic contains its own limiting principle: the act must be “done in furtherance of the conspiracy,” or “fall within the scope of the unlawful project.” Id. at 647-48. A “ramification[] of the plan
These principles inform the extent of a defendant‘s sentencing exposure under
Phillips‘s holding did not apply to mandatory minimum sentences. We adopted in that case the reasoning of three of our sister circuits, see Phillips, 349 F.3d at 141-42 (citing United States v. Knight, 342 F.3d 697, 710-11 (7th Cir. 2003); United States v. Turner, 319 F.3d 716, 722-23 (5th Cir. 2003); and Derman v. United States, 298 F.3d 34, 42-43 (1st Cir. 2002)), and those courts do not employ a conspiracy-wide approach in the context of mandatory minimums, see United States v. Haines, 803 F.3d 713, 741-42 & n.9 (5th Cir. 2015); United States v. Colon-Solis, 354 F.3d 101, 103 (1st Cir. 2004); Knight, 342 F.3d at 711. Phillips said nothing to the contrary, consistent with Collado: the jury sets the maximum according to the total amount of drugs in the conspiracy, and the sentencing judge conducts an individualized inquiry to determine the penalty for each co-conspirator.
Alleyne alters this regime. Since that decision, several circuits—including the First and the Fifth—have held that the jury, in determining (as Alleyne requires) drug quantity for purposes of the mandatory minimum, may attribute to a defendant only that “quantity which was within the scope of the agreement and reasonably foreseeable to him.” United States v. Dewberry, 790 F.3d 1022, 1030 (10th Cir. 2015) (internal quotation marks omitted); see also United States v. Stoddard, 892 F.3d 1203, 1221 (D.C. Cir. 2018); Haines, 803 F.3d at 740; United States v. Rangel, 781 F.3d 736, 742-43 (4th Cir. 2015); United States v. Pizarro, 772 F.3d 284, 292-93 (1st Cir. 2014).33
First, it follows from the basic principles of our prece- dent. In Rowe, we acknowledged that because the drug quantities specified in
Second, the approach is most consistent with our pre- Alleyne regime. Phillips ensured that the jury would set the maximum term a defendant could spend in prison, leaving it to the judge to determine each co-conspirator‘s individual sentencing exposure under
We thus agree with Hernandez and Sistrunk that an error occurred as to Count II. The jury rendered its verdicts by considering only the amount of drugs involved in the conspiracy as a whole. But for the same reasons given above with respect to the Rowe error on Count III—the drug-trafficking count—this argument was not preserved in the Defendants’
B. Count I: RICO Conspiracy
Having clarified the legal framework of our inquiry, we now turn to the sufficiency of the evidence on Counts I and II—RICO conspiracy and drug-trafficking conspiracy. Both offenses may arise from the same set of facts because they follow from the general principles of conspiracy law. Here, the operative indictment incorporated its allegations at Count I as the basis for its charge at Count II. And, as we shall see, the evidence supporting the Count I convictions overlaps with that supporting the convictions on Count II.39 We hold that a rational juror could have concluded that each of the Defendants convicted on Count I was guilty as charged.40
1. The Elements of the Offense
Conspiracy Generally
The fountainhead of any criminal conspiracy is the agreement: when “two or more . . . confederate and combine together, by concerted means, to do that which is unlawful or criminal.” Callan v. Wilson, 127 U.S. 540, 555 (1888). Under both the RICO- and the drug-trafficking-conspiracy statutes,
Further, the RICO or drug-trafficking conspiracy may continue over time and embrace a multitude of objects. Smith, 568 U.S. at 111. It may exist even if an individual conspirator “does not agree to commit or facilitate each and every part of the” contemplated crime or crimes. Salinas, 522 U.S. at 63. Nor even must the conspiracy actually achieve any or all of its criminal ends. United States v. Rabinowich, 238 U.S. 78, 86 (1915). It is enough that the conspirator “intend[s] to further an endeavor which, if completed, would satisfy all of the elements of a substantive criminal offense.” Salinas, 522 U.S. at 65.
Thus involved, each conspirator is subject to the ordinary principles of co-conspirator liability. Smith, 568 U.S. at 111 (citing Pinkerton, 328 U.S. at 646). And he continues to be liable “up to the time of abandonment or success.” Kissel, 218 U.S. at 608. Indeed, “a defendant‘s membership in the conspiracy, and his responsibility for its acts, endures even if he is entirely inactive after joining it.” Smith, 568 U.S. at 114; see also Callanan v. United States, 364 U.S. 587, 593 (1961) (“Group association for criminal purposes often, if not normally, makes possible the attainment of ends more complex than those which one criminal could accomplish.“). Once the prosecution has proved both the existence of a conspiracy across a period of time and the defendant‘s participation in that conspiracy, the burden falls on the defendant to establish his withdrawal prior to the completion of the period. Smith, 568 U.S. at 113. If he does not show “some [affirmative] act to disavow or defeat the purpose” of the conspiracy, then he must “incur the guilt” attendant upon its continuance. Hyde v. United States, 225 U.S. 347, 369-70 (1912).
Section 1962(c)
Seven Defendants were convicted of conspiracy to violate
It shall be unlawful for any person . . . associated with any enterprise engaged in, or the activities of which affect, interstate . . . commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise‘s affairs through a pattern of racketeering activity . . . .
For our purposes here, the final two elements are the most significant: participation in (1) the conduct of an enterprise (2) through a pattern of racketeering activity.
RICO defines an “enterprise” to “include[] any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.”
Next, “racketeering activity” is said to “mean[]” certain criminal acts defined by statute, including “any offense involving . . . the felonious manufacture, importation, receiving, concealment, buying, selling, or otherwise dealing in a controlled substance.”
Section 1962(d)
As relevant here, to be liable for RICO conspiracy under
Thus, consistent with the general principles of conspiracy law recited above, conspiracy to violate
2. The Evidence
In any review of the sufficiency of the evidence supporting a criminal conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). The Government may prove the existence of a conspiracy entirely through circumstantial evidence. United States v. Kapp, 781 F.2d 1008, 1010 (3d Cir. 1986). In such instances, we sustain the verdict if the proof “appears as a reasonable and logical inference” from “evidence of related facts and circumstances.” United States v. Brodie, 403 F.3d 123, 134 (3d Cir. 2005) (citation omitted). And we “must credit all available inferences in favor of the government.” Fattah, 914 F.3d at 162 (citation omitted).
The Defendants—Cruz, Hernandez, Villega, Kelly, Atkinson, Sistrunk, and Eatmon—contend that the alleged South Side gang did not amount to an enterprise for purposes of RICO liability. They point to testimony that the South Side was simply a neighborhood where the Defendants grew up or lived; that the drug dealing that occurred there amounted at best to parallel conduct by independent actors; and that any violent incidents were the product of personal “beefs.”
It is undeniable that the drug dealers operating on the South Side during the indictment period did not constitute a gang on the order of the Bloods or Crips. Nor was this a trafficking operation to rival the ‘Ndrangheta. Yet that is not what RICO requires. The evidence need only support the conclusion that each of these seven Defendants at least agreed to further a continuing unit that functioned with a common illegal purpose.
Testimony showed that as early as 2002, Cruz, Hernandez, and Kelly supplied crack to Atkinson and Eatmon in the area around Maple and Duke. App. 3543-47, 3633-34; see also App. 1503-07. Hernandez and Kelly also, it was said, helped to introduce guns to the South Side, at least partially in response to fighting with Parkway. App. 3553. A few years later, Sistrunk began selling drugs at Maple and Duke. App. 3559-60. By that time, however, Cruz, Hernandez, and Kelly had been incarcerated, and so Atkinson, Eatmon, and Sistrunk, among others, began collectively to traffic in large quantities of crack. App. 3570-75, 3830-31; see also App. 2110-11; 3138-39. Their profits were all earned separately, App. 3817-18, but nevertheless the men sometimes shared scales and bought or fronted drugs among each other, App. 3574.
This association persisted into the next decade. See, e.g., App. 2456-57. In June 2011, while in prison, Villega told Warren Pillgreen to “straighten out that package,” referring to a drug debt Pillgreen owed to Hernandez. App. 3016. A few months later, shortly before Pillgreen‘s release from prison, Cruz engaged him to “commit an act of violence” to settle the debt. App. 3018. By 2012, Cruz and Hernandez were still supplying substantial amounts of crack, and Kelly was present for these transactions. App. 3644-48. In September, Cruz, Hernandez, Kelly, Atkinson, and Eatmon were involved in a physical altercation between South Side and Parkway at Rutter‘s gas station. App. 3649-63. The Latham homicide occurred just over two months later—an event, we have seen, in which Hernandez, Cruz, Kelly, and perhaps
A rational juror could conclude from this evidence—and, more generally, from the entire body of evidence—that each of the seven challengers agreed to further an enterprise whose predominant common purpose was “making money” through the sale of controlled substances, but which also occasionally embraced related ends, such as “protecting its own members and criminal schemes.” See Bergrin, 650 F.3d at 269. As noted, the conspiracy and the enterprise need not be distinct, and a continuing unit for purposes of RICO may exist even if a given Defendant was not always active. See Boyle, 556 U.S. at 948 (“[N]othing in RICO exempts an enterprise whose associates engage in spurts of activity punctuated by periods of quiescence.“); see also Smith, 568 U.S. at 114. Here, each of the Defendants persisted in the group‘s concerted illicit activities over an extended period of time, operating within the larger, if “relatively loose and informal,” Bergrin, 650 F.3d at 269, structure of the South Side‘s drug blocks. Based on this evidence, we cannot say that no rational juror would find the Defendants guilty of RICO conspiracy under
C. Count II: Drug-Trafficking Conspiracy
We proceed, finally, to the evidence supporting the convictions on Count II. Six Defendants—Hernandez, Villega, Rice, Kelly, Sistrunk, and Eatmon—challenge the sufficiency of this evidence. We hold that a rational juror could have found each of the challengers guilty under
1. The Elements of the Offense
We have already described some of the basic principles governing a defendant‘s liability under
First, there must be a conspiracy—an agreement among two or more persons to achieve by concerted means an illegal goal. It has long been settled in our Court that to prove a drug-trafficking conspiracy, “the government must establish a unity of purpose between the alleged conspirators, an intent to achieve a common goal, and an agreement to work together toward that goal.” Gibbs, 190 F.3d at 197. A conspiracy under
Second, the defendant must have been a member of the conspiracy. He must be shown to have intended to further a scheme whose execution he knew would or did result in the commission of each element
Although the evidence establishing the existence of a conspiracy may coincide with proof of participation in that conspiracy, “certain types of circumstantial evidence become substantially more probative if it can be established that a conspiracy existed and the only remaining question is whether the defendant was a part of it.” Pressler, 256 F.3d at 151. “[A] simple buyer-seller relationship,” however, “without any prior or contemporaneous understanding beyond the sales agreement itself, is insufficient to establish that the buyer was a member of the seller‘s conspiracy.” Gibbs, 190 F.3d at 197. Rather, the “buyer” is liable under
Third, if the indictment charges drug quantities pursuant to
2. The Evidence
We proceed generally according to the sufficiency-of-the-evidence standard recited above. In cases of drug-trafficking conspiracy, “the verdict must be upheld as long as it does not ‘fall below the threshold of bare rationality.‘” Caraballo-Rodriguez, 726 F.3d at 431 (quoting Coleman v. Johnson, 566 U.S. 650, 656 (2012)).
The challengers contest the jury‘s verdicts on two grounds. First, they contend there was no evidence of an agreement either to form a conspiracy or to join one. Second, they dispute the evidence as to drug quantity. We consider each argument in turn.
Agreement
Our foregoing discussion establishes the common foundation of RICO and drug-trafficking conspiracy in the general principles of conspiracy law. The two offenses may be coincident in their factual circumstances, especially where the pattern of racketeering activity involves “the felonious manufacture, . . . buying, selling, or otherwise dealing in a controlled substance.”
The only Defendant to challenge his Count II conviction who was not convicted
Based on this evidence, a reasonable juror could conclude that Rice was consciously and willingly a part of a larger drug-trafficking operation and remained so even after periods of imprisonment. See Gibbs, 190 F.3d at 200.
Drug Quantity
A rational juror also could conclude that Hernandez, Villega, Rice, Kelly, Sistrunk, and Eatmon were each responsible, on a conspiracy-wide basis, for 280 grams or more of crack cocaine. Rogers‘s testimony alone indicated that in the early years just after 2002, he received 1 kilogram of crack from each of Hernandez, Kelly, and Cruz. App. 3633-34. At that time, he was close with Atkinson, Rice, and Eatmon, who were receiving drugs from Hernandez and Kelly in similar quantities. App. 3543-45. Rogers also estimated that in later years, when he, Atkinson, Rice, Sistrunk, and Eatmon worked closely together, he would bring back from New York 500-1000 grams of crack “[e]very couple of days.” App. 3573. He testified that in this time he distributed and saw his friends distribute “many kilos of crack.” App. 3575. Moreover, to the extent that any of the Defendants were incarcerated and could not have been present for the movement of these quantities, their renewed drug dealing upon release from prison confirms their continuing liability for acts in furtherance of the conspiracy, even apart from the absence of an affirmative act of withdrawal. See Hyde, 225 U.S. at 369-70.
Finally, as noted above, Villega aided Hernandez in the collection of a drug debt by warning Pillgreen to “straighten out that package.” App. 3016. Marquis Williams testified that Villega fronted him 6 grams of heroin in 2013. App. 2443-44, 2655. By early 2014, Villega was still dealing heroin, App. 4513-16, and police later recovered about 13.5 grams of heroin and 61 grams of crack from the basement Villega was seen to frequent with others. App. 4561. In just that timeframe, from 2011 to 2014, Rogers testified that he received 156 grams of crack from Cruz and Hernandez, App. 3645-46, and Marquis Williams said he sold 50-gram quantities of crack on “several” occasions, App. 2442. Based on this evidence alone, an attribution to Villega of over 280 grams of crack on a conspiracy-wide basis does not fall below the threshold of bare rationality.
***
There was sufficient evidence upon which a rational juror could have
VI. SENTENCING
The final category of issues concerns the sentences imposed in the years following the trial. All the Defendants challenge various aspects of those judgments.41 For the reasons that follow, we will affirm the judgments of sentence of Williams and Rice. But we will vacate Hernandez‘s judgment of sentence in full, the other Defendants’ judgments of sentence in part, and remand the cases of Hernandez and Schueg for resentencing proceedings consistent with this opinion.
A. Individual Challenges
1. Williams
Jabree Williams‘s Presentence Report (PSR) recommended a Guidelines range of 78-97 months in prison. The District Court sentenced him to 60 months, the mandatory minimum, based upon time served for two prior state drug convictions. The Court also recommended that the Bureau of Prisons credit Williams with an additional 13 months for time served on a prior juvenile offense, and with approximately 28-29 months for time in federal custody.
Williams raises only one issue on appeal. The District Court, he contends, should have credited the 13-month term because
We need not address the merits of Williams‘s constitutional challenge to
At Hernandez‘s sentencing hearing, his attorney, Morris, stated that “Mr. Hernandez does not desire to address the court this morning. However, he did want me to say that he wanted to thank his family for their support of him throughout this process, and so we‘d have nothing further beyond that.” App. 289. The District Court accepted this submission, and, after allowing the Government an opportunity to speak, announced its judgment. It did not address Hernandez personally, and neither Morris nor the Government raised Hernandez‘s right to allocution. See
Hernandez now argues that he is entitled to resentencing proceedings under United States v. Adams, 252 F.3d 276 (3d Cir. 2001). The Government concedes the point, but it asserts without elaboration that resentencing “should be limited to providing Hernandez the opportunity to allocute should he so desire.” Gov‘t Br. at 212. We disagree. In Hill v. United States, 368 U.S. 424 (1962), the Supreme Court cited Van Hook v. United States, 365 U.S. 609 (1961) (per curiam), for the appropriate remedy in direct appeals. 368 U.S. at 429 n.6. Van Hook is a one-sentence opinion, stating: “The judgment is reversed and the case remanded for resentencing in compliance with” Rule 32 and Green. 365 U.S. at 609. This language provides no indication of a limited remand, and our post-Adams cases have not applied such a remedy. See United States v. Chapman, 915 F.3d 139, 147 (3d Cir. 2019); United States v. Paladino, 769 F.3d 197, 204 (3d Cir. 2014); United States v. Plotts, 359 F.3d 247, 251 (3d Cir. 2004). Hernandez is entitled to a resentencing proceeding, with all its attendant considerations.42 See, e.g., Pepper v. United States, 562 U.S. 476 (2011). However, the District Court may, in its discretion, allow the Government to offer new evidence. United States v. Dickler, 64 F.3d 818, 831-32 (3d Cir. 1995).
3. Kelly
Kelly brings several challenges to his concurrent life sentences. Five of those challenges are unique to him. He asserts four procedural defects in the District Court‘s decision, and he claims that the sentences were substantively unreasonable. We review procedural-soundness and substantive-unreasonableness challenges for abuse of discretion. United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc). Further, “[w]e exercise plenary review of a district court‘s interpretation of the Sentencing Guidelines and review its factual findings for clear error.” United States v. Welshans, 892 F.3d 566, 573 (3d Cir. 2018). Four of the issues are meritless. The other leaves Kelly‘s sentence unaffected.
1. Dangerous-weapon enhancement. Kelly asserts that the District Court erred in applying the two-level enhancement for possession of “a dangerous weapon” in connection with a controlled-substances offense.
2. Organizer or leader increase. Kelly contends that the District Court erred in applying a four-level increase for being “an organizer or leader of a criminal activity that involved five or more participants.”
3. Calculation of criminal-history score. Kelly next contests his classification as a career offender for purposes of his criminal-history category. Under the Guidelines, a defendant is a career offender if he “has at least two prior felony convictions of either a crime of violence or a controlled substance offense.”
This finding was not clearly erroneous. As the District Court pointed out, on the form there were two options after the line “The defendant having been.” Gov‘t Supp. App. 165. One was “convicted of the crime(s) of“; the other, “adjudicated a Youthful Offender.” The former was checked, suggesting Kelly‘s conviction was the same as that for an adult. At the bottom of the form was written “YO denied.” The District Court reasonably inferred that this meant “youthful offender denied.” Kelly App. 518. Finally, simply because Kelly was marked a “Juvenile Offender” on the form is not, under applicable New York law, indicative of a non-adult conviction. See In re Raymond G., 715 N.E.2d 486, 488 (N.Y. 1999); Matter of Vega, 393 N.E.2d 450, 452-53 (N.Y. 1979).
4. Use-of-violence enhancement. Kelly points out that the District Court failed to consider his objection to the two-level enhancement under
5. Substantive reasonableness. “[I]f the district court‘s sentence is procedurally sound, we will affirm it unless
4. Schueg
Schueg‘s challenges to his concurrent 165-month sentences all relate to the assessment of fines and costs. After stating simply that Schueg “has the ability to pay a fine,” the District Court ordered that he, together with other defendants, pay $6,500 in restitution under the Mandatory Victims Restitution Act (MVRA). Schueg App. 63-64. It also ordered payment of the special assessment under
Under the MVRA, a district court must “specify in the restitution order the manner in which, and the schedule according to which, the restitution is to be paid,” after considering the defendant‘s “financial resources and other assets,” projected income, and “financial obligations.”
5. Atkinson
Atkinson contests the District Court‘s application of a two-level enhancement for obstructing the administration of justice. To be eligible for that increase, a defendant must (as relevant here) have “willfully . . . attempted to obstruct or impede[] the administration of justice with respect to the . . . sentencing of the instant offense of conviction.”
From that perspective, Atkinson‘s enhancement must remain. His “instant offense” was among other things RICO conspiracy, and Hodge was suspected of (and indeed was) revealing to the Government information related to ongoing concerted illicit activities of at least Hernandez, Cruz, and Atkinson. That goes directly to the offense of which Atkinson was convicted and awaiting sentencing. The District Court, then, did not clearly err in finding a nexus between the attack and Atkinson‘s pending legal proceedings.
B. Collective Challenges
1. Drug Quantity
Rice, Eatmon, and Kelly challenge the District Court‘s drug-quantity attributions pursuant to the Guidelines’ relevant-conduct provision.43 See
Rice‘s PSR recommended a base offense level of 30, due to a drug-quantity attribution of 280-840 grams of crack. See
As remarked above, Rogers testified that in the conspiracy‘s early years, he, Atkinson, Eatmon, and Rice all sold crack they received from Hernandez and Kelly. Rogers agreed that they were “essentially getting the same quantities or similar quantities,” App. 3544-45, and he estimated that in this time he received approximately 1 kilogram of crack from both Hernandez and Kelly. Further, in around 2006-2007, when those suppliers were imprisoned, Rogers said that he, Atkinson, Eatmon, Sistrunk, and Rice continued to sell drugs together, and that they mutually facilitated each other‘s drug dealing. Rice does not dispute this testimony, and other evidence indicates his continued involvement in the conspiracy in the years thereafter. The District Court did not clearly err in its attribution.
The same goes for Eatmon. He received a base offense level of 38, on an attribution of 28 kilograms or more of crack. Rogers testified that for about a year between 2006 and 2007, he would bring back from New York 500 to 1000 grams of crack “[e]very couple of days.” App. 3573. He agreed that he distributed, and that he saw Eatmon and others distribute, “many kilos of crack” over that time. App. 3575. Further, Darvin Allen testified that around that same time, for approximately one to two years, he received from Eatmon about 14 grams of crack a week. Eatmon indicates nothing in the record to doubt the reliability of this testimony. The attribution of 28 kilograms or more was not clear error.
Finally, Kelly‘s challenge fails on a similar basis. His base offense level, like Eatmon‘s, was 38, thanks to an attribution of 28 kilograms or more of crack. Rogers testified that he received approximately 1 kilogram of crack from each of Hernandez, Cruz, and Kelly in the years after 2002, and, as just noted, he said that Atkinson, Eatmon, and Rice all received a similar amount from at least Hernandez and Kelly. There was also testimony from a high-level South Side supplier, who said that in these years he moved 500 grams to 1 kilogram of crack a week, including deliveries to Cruz and Hernandez. Further, Rogers testified that by 2012, Kelly was present when he paid Hernandez for crack that had been fronted. This indicates Kelly‘s continued active participation in the conspiracy. Finally, as mentioned above, there was evidence that Kelly continued to associate with Cruz and Hernandez, and supply crack even up to the time of the initial indictment in March 2014. Given this longitudinal evidence of Kelly‘s twelve-year participation in the highest levels of the conspiracy, the indications of persistent drug-dealing activity, and the testimony regarding the amounts involved, we cannot say the District Court clearly erred in its attribution.
2. Body-Armor Enhancement
During his testimony regarding the early years of the conspiracy, Rogers said that he saw Hernandez and Kelly wearing bulletproof vests on multiple occasions at Maple and Duke Streets. Under the Guidelines, a defendant “convicted of a drug trafficking crime or a crime of violence” may be eligible for a two- or a four-level increase to his offense level based on the use of body armor in the commission of the offense.
This same evidence supports the application of
3. Costs of Prosecution
Seven Defendants—Cruz, Hernandez, Villega, Kelly, Schueg, Atkinson, Sistrunk, and Eatmon—challenge the District Court‘s assessment of a fine to reimburse the City of York for the overtime wages paid to York police officers who testified at trial. The Government concedes the issue. We will, therefore, vacate this aspect of the challengers’ judgments of sentence.
VII. CONCLUSION
For the foregoing reasons, we will affirm the Defendants’ judgments of conviction, and the judgments of sentence of Williams and Rice. We will vacate Hernandez‘s judgment of sentence in full, and Schueg‘s judgment of sentence as to the assessment of restitution, fines, and costs. We will remand those two cases for resentencing proceedings consistent with this opinion. We will also vacate the judgments of sentence of Cruz, Villega, Kelly, Atkinson, Sistrunk, and Eatmon as to the police overtime costs.
RESTREPO, Circuit Judge, dissenting.
The District Court issued a sua sponte order closing the courtroom for jury selection. Appellants were eventually convicted on various counts related to their involvement in a local street gang and were sentenced to prison. Among other issues they raise on appeal, Appellants argue that they are entitled to a new trial because of the courtroom closure. Due to the deep roots the right to a public trial has in our history and its critical importance to the functioning of our criminal justice system, I would reverse Appellants’ convictions and remand for a new trial. I respectfully dissent.
Following an extensive investigation conducted by the United States Bureau of Alcohol, Tobacco, Firearms and Explosives, a grand jury returned a six-count indictment against twenty-one defendants. From 2002 to 2014, the defendants were alleged to have participated in a racketeering conspiracy, a drug trafficking conspiracy, and drug trafficking while involved with a York, Pennsylvania street gang. After nine defendants entered into plea agreements with the Government, twelve went to trial. Ten of these defendants (collectively, “Appellants“) now appeal their convictions and sentences ranging from sixty months to life imprisonment.
On the eve of the trial, the District Court issued an order closing the courtroom for the entirety of jury selection. In full, the order states:
AND NOW, on this 18th day of September 2015, IT IS HEREBY ORDERED THAT due to courtroom capacity limitations, only (1) court personnel, (2) defendants, (3) trial counsel and support staff, and (4) prospective jurors shall be allowed into the courtroom during jury selection. No other individuals will be present except by express authorization of the Court.
App. 10 (bold in original). Neither the Government nor the defendants requested this order, and the District Court did not seek their input. The Court closed the courtroom to the public without determining whether it was necessary or considering any alternatives. None of the defendants objected to the order, and voir dire then took place for two days.
II.
We must now decide whether to correct an erroneous courtroom closure despite Appellants’ failure to object. As a preliminary matter, it is imperative to understand the contours of the constitutional right in question.
The Sixth Amendment provides that “the accused shall enjoy the right to a speedy and public trial“—and the Supreme Court has long recognized the importance of the public trial right for the accused and the broader community. See, e.g., In re Oliver, 333 U.S. 257 (1948). “[T]he Sixth Amendment right to a public trial extends to the voir dire of prospective jurors.” Presley v. Georgia, 558 U.S. 209, 213 (2010) (per curiam); see also Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 508 (1984) (noting that “the accused‘s right [to a fair trial] is difficult to separate from the right of everyone in the community to attend the voir dire” under the First Amendment). As a part of the public trial right, criminal defendants and the public at large are entitled to open proceedings.
The public trial guarantee is deeply rooted in our common law heritage. In England, early court proceedings required public access to “moots,” which later evolved into juries, consisting of “the freemen of the community.” See Press-Enterprise, 464 U.S. at 505. In the eleventh century, the jury began to transform into a small group of individuals that represented the community, but “the public character of the proceedings, including jury selection, remained unchanged.” Id. at 506. As early as the sixteenth century, jurors in England were selected “openlie in the presence of the Judges, the Justices, the enquest, the prisoner, and so many as will or can come so neare as to heare it.” Id. at 507 (emphasis in original) (quoting Thomas Smith, De Republica Anglorum 96 (1565) (Alston ed. 1906)).
The presumption of public jury selection “carried over into proceedings in colonial
write the Names of all Petit Jurors appearing, on Scrolls or Pieces of Paper, which shall be put into a Box; and on every Issue in every Suit where it is not otherwise agreed by Consent, a Child under Ten Years old, in open Court, shall draw out of the said Box Twelve of the said Scrolls or Pieces of Paper.
James Davis, Complete Revisal of All the Acts of Assembly, of the Province of North-Carolina, Now in Force & Use 549 (1773) (emphasis added). Delaware employed a similar system in which prospective jurors’ names were placed in a box until “some indifferent person, by the direction of the court, may and shall, in open court, draw out twelve of the said pieces of parchment or paper.” 2 Laws of the State of Delaware 1073 (Samuel & John Adams eds. 1797) (emphasis added). These are just two examples, as open voir dire proceedings were the practice at the time of our Nation‘s founding.
The Sixth Amendment enshrined the presumption of public access in the Constitution. The Founding Fathers believed that public court proceedings provided safeguards integral to the nascent republic. At the Constitutional Convention, broad agreement existed regarding the jury trial‘s importance as “a valuable safeguard to liberty . . . [or] the very palladium of free government.” The Federalist No. 83, at 461 (Alexander Hamilton) (P.F. Collier ed., 1901). And jury selection was viewed as a “double security” against corruption that would require a person to “corrupt both the court and the jury.” Id. at 463.
Enunciating “revolution principles” under the pseudonym “Novanglus,” John Adams struck similar themes when he explained that “draw[ing] [jurors] by chance out of a box in open town meeting” best “secured against a possibility of corruption of any kind . . . having seen with their own eyes, that nothing unfair ever did or could take place.” John Adams, Novanglus; or, A History of the Dispute with America from Its Origin, in 1754, to the Present Time, The Revolutionary Writings of John Adams 152, 199 (C. Bradley Thompson, ed., 2000) (emphasis added). These sentiments were explicitly incorporated into the Constitution in the language of the Sixth Amendment.
It is thus no surprise that the Supreme Court classifies courtroom closures “as a structural error” that generally “entitl[es] the defendant to automatic reversal.”1 Weaver v. Massachusetts, 137 S. Ct. 1899, 1905 (2017) (plurality opinion). Courts usually reverse criminal convictions tainted by a structural error because they affect “the framework within which the trial proceeds,” thus “infect[ing] the entire trial process” and undermining the ultimate determination of “guilt or innocence.” Neder v. United States, 527 U.S. 1, 8-9 (1999) (citations and internal quotation marks omitted). An open courtroom during jury selection is fundamental to protecting defendants’ right to a jury free from prejudice and ensuring
The District Court did not consider alternative options or make any factual findings in support of its order. The Government points to comments the District Court made on the number of people in the courtroom. However, these comments do not support the proposition that the District Court made the required findings because they came days after the order and are not linked in any discernible way to the closure.
public confidence in the administration of justice. See Press-Enterprise, 464 U.S. at 508; United States v. Negron-Sostre, 790 F.3d 295, 301 (1st Cir. 2015). Accordingly, it was a structural error to close the courtroom during voir dire.
III.
There are instances in which a structural error does not automatically lead to a reversal. In Weaver, the Supreme Court recently examined an erroneous courtroom closure on collateral review. Due to space limitations, “an officer of the court excluded from the courtroom any member of the public who was not a potential juror.” Weaver, 137 S. Ct. at 1906. Citing finality concerns, the plurality concluded that the petitioner did not demonstrate prejudice as required for a new trial under Strickland v. Washington, 466 U.S. 668 (1984). See Weaver, 137 S. Ct. at 1912-14. Although the Weaver plurality cautioned courts not to assume that public trial violations always require reversal in a collateral proceeding, it did not address the appropriate remedy when the error is raised for the first time on direct review.
Here, Appellants did not object to the District Court‘s closure order or otherwise preserve their claim during the trial. We thus review the order for plain error.
Fourth, reviewing courts have discretion to remedy a forfeited error if it “seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.” Id. at 736 (citation and internal quotation marks omitted). Only the third and fourth prongs are relevant for our purposes because the parties agree that the closure was a clear error. Below, I will consider these prongs in turn.
A.
Olano‘s substantial rights prong typically requires a showing of prejudice. Puckett, 556 U.S. 129. “To satisfy this condition, the defendant ordinarily must show a reasonable probability that, but for the error, the outcome of the proceeding would have been different.” Rosales-Mireles v. United States, 138 S. Ct. 1897, 1904-05 (2018) (citation and internal quotation marks omitted). But “[t]here may be a special category of forfeited errors that can be corrected regardless of their effect on the outcome.” Olano, 507 U.S. at 735. The Majority declines to address whether
The Supreme Court has made clear that structural errors generally result in the reversal of a conviction because they “are so intrinsically harmful as to require automatic reversal (i.e., ‘affect substantial rights‘) without regard to their effect on the outcome.” Neder, 527 U.S. at 7. Requiring defendants to make a specific showing of prejudice when claiming a structural error on direct review would force them to engage in a “speculative inquiry into what might have occurred in an alternate universe.” United States v. Gonzalez-Lopez, 548 U.S. 140, 148-50 (2006) (describing why it is “unnecessary to conduct an ineffectiveness or prejudice inquiry” to establish a violation to the “right to counsel of choice“).
The District Court‘s closure of the courtroom during voir dire is the prototypical constitutional error that is impossible to measure. “Jury selection is the primary means by which a court may enforce a defendant‘s right to be tried by a jury free from ethnic, racial, or political prejudice . . . , or predisposition about the defendant‘s culpability.” Gomez v. United States, 490 U.S. 858, 873 (1989). Public jury selection proceedings impact the way in which potential jurors respond to questions about their past experiences and the types of questions attorneys ask them. See Negron-Sostre, 790 F.3d at 305-06.
The difficulty in determining the level of prejudice is precisely why structural errors are presumed to affect defendants’ substantial rights. See Neder, 527 U.S. at 7. Contrary to the Majority, I do not view the conclusion that the District Court‘s courtroom closure affected Appellants’ substantial rights as a “doctrinal leap.” See Majority Op. at 17. It would be illogical to classify an error as structural because it affects substantial rights but then conclude that it did not affect defendants’ substantial rights for purposes of Olano‘s third prong. Given the difficulty of measuring prejudice arising from a public trial violation and the importance of jury selection in protecting criminal defendants, this Court should presume prejudice and hold that Appellants have satisfied the substantial rights prong.
B.
The District Court‘s order also undermines the fairness, integrity, and public reputation of the trial proceedings, thus satisfying Olano‘s fourth prong. As explained above, open voir dire is key to ensure that unprejudiced jurors are ultimately selected to serve on juries. It also serves as a check on judicial abuse against defendants caught up in the criminal justice system. See United States v. Lnu, 575 F.3d 298, 305 (3d Cir. 2009) (stating that the public trial right “has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution“) (citation and internal quotation marks omitted). Even in cases where there are no further constitutional violations, open jury selection maintains the public‘s confidence in the system by enhancing “the appearance of fairness.”2 Press-Enterprise, 464 U.S. at 508; see also Waller, 467 U.S. at 46 (stating that public trials ensure that the “judge and prosecutor carry out their duties responsibly” and “discourages perjury“).3
The pivotal role that public proceedings play in our judicial system is precisely why reviewing courts find it particularly problematic when trial judges themselves limit access to courtrooms. See Weaver, 137 S. Ct. at 1913 (emphasizing that the “closure decision . . . was made by court officers rather than the judge“). It is also why trial judges are responsible for considering alternatives to closure even if none are raised by the parties. Presley, 558 U.S. at 214-15 (noting that trial courts must consider alternatives given jury selection‘s importance “to the adversaries [and] to the criminal justice system“) (citation and internal quotation marks omitted). As the reviewing court, it is imperative that we correct the District Court‘s structural error because it undermines the integrity and public reputation of criminal proceedings that resulted in Appellants’ convictions.
Instead, the Majority conducts a cost-benefit analysis to justify leaving the public trial violation uncorrected. Majority Op. at 29 (declining remedial action because “the remedy is to be assessed relative to the costs of the error“). This approach is foreign and detrimental to our structural error jurisprudence.
The Majority first minimizes the impact of the error by pointing out that there is no evidence anyone sought to access to the courtroom, that there is no indication of wrongdoing by the District Court or the Government, and that transcripts of voir dire were made available. Majority Op. at 26-28. The availability of transcripts does little to mitigate the error because “no transcript can recapture the atmosphere of the voir dire, which may persist throughout the trial.” Gomez, 490 U.S. at 874-75; see also United States v. Antar, 38 F.3d 1348, 1360 n.13 (3d Cir. 1994) (explaining that “the translation of a live proceeding to a cold transcript” misses “some information, concerning demeanor, non-verbal responses, and the like“).
The other two factors the Majority mentions miss the point of structural errors like public trial violations. Much of the Majority‘s analysis relies on cases that consider errors reviewed for harmlessness. See Majority Op. at 23-25. At one point, the Majority even posits that “apart from cases of actual innocence, an altered outcome does not in itself necessitate correction of the error.” Majority Op. at 25. The Majority overlooks the critical fact that we do not review criminal trials with a structural error for harmlessness because such trials “cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair.” Arizona v. Fulminante, 499 U.S. 279, 310 (1991) (citation and internal quotation marks omitted). Because public trial violations corrupt the very mechanism used to determine guilt or
The Majority next focuses on the high costs of remedial action to correct the error. Correcting the public trial violation would require reversal of Appellants’ convictions, which resulted from two-month long proceedings completed five years ago, and remand for a new trial. The costs to remedy the District Court‘s error are indeed considerable. I disagree, however, with the central role the Majority affords these costs in its plain error analysis. The District Court committed a grave constitutional violation by simultaneously violating twelve defendants’ right to a public trial for the entirety of jury selection. The nature of the error, not the cost of correcting it, must be the lodestar of our consideration of a structural error on plain-error review. The District Court “undermine[d] the structural integrity of the criminal tribunal itself” in a way that “is not amenable to harmless-error review“—and the Majority allows this to stand. Vasquez v. Hillery, 474 U.S. 254, 263-64 (1986). It is perverse to weigh the costs of judicial efficiency against Appellants’ constitutional rights when the District Court undeniably committed structural error.
For the reasons stated above, I respectfully dissent. A balancing test or a cost-benefit analysis is an improper and unjust method for determining whether to protect certain fundamental constitutional rights. The public trial right is one of these fundamental rights. It has deep roots in our Nation‘s history and is essential to the functioning of our criminal justice system. I would therefore reverse Appellants’ convictions and remand for a new trial.