The opinion
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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-10730
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VERTUIES WALL,
a.k.a. Vert,
LAWRENCE GRICE,
a.k.a. Lo Lo G,
LEWIS MOBLEY,
a.k.a. OG
Defendants-Appellants.
____________________
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2 Opinion of the Court 20-10730
Appeals from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:16-cr-00145-TWT-JKL-7
____________________
Before WILLIAM PRYOR, Chief Judge, and JILL PRYOR and BRASHER,
Circuit Judges.
BRASHER, Circuit Judge:
This all-of-the-above criminal appeal of a three-defendant
trial involves several different issues related to the convictions and
sentences of members of the Gangster Disciples. Vertuies Wall,
Lawrence Grice, and Lewis Mobley were indicted in the same in-
dictment at issue in United States v. Caldwell, 81 F.4th 1160 (11th Cir.
2023), cert. denied sub nom. Clayton v. United States, 144 S. Ct. 870
(2024). But the cases were tried separately. In both cases, the dis-
trict court gave many of the same key jury instructions and used
the same key language in its verdict forms. Of import in this appeal,
Grice, Wall, and Mobley were all convicted of conspiracy under
the Racketeer Influenced and Corrupt Organizations Act, and
Grice was also convicted of a drug trafficking conspiracy charge.
Grice challenges the sufficiency of the evidence of his convictions.
And Wall and Mobley challenge various aspects of their convic-
tions and sentences. But they ultimately fail on each of the many
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20-10730 Opinion of the Court 3
issues. Therefore, we affirm the defendants’ convictions and sen-
tences. 1
I.
About forty alleged members of the Gangster Disciples were
indicted on various charges, namely conspiracy under the Racket-
eer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962(d),
and drug trafficking conspiracy charges, 21 U.S.C. § 846. Some in-
dividuals pleaded guilty, and others were found guilty. Three indi-
viduals, Lewis Mobley, Vertuies Wall, and Lawrence Grice ended
up codefendants in one such case. The indictment provided notice
that the government would seek to convict the individuals of the
enhanced sentencing provision of 18 U.S.C. § 1963(a). Of particular
note, the indictment cites all three Georgia murder-related stat-
utes—the statutes criminalizing murder, attempted murder, and
conspiracy to murder—in its list of racketeering acts for purposes
of the RICO conspiracy charge but only the actual murder statute
in the notice for the enhanced sentencing provision.
Before trial, the district court had to determine whether
Mobley was competent to assist in his defense. A defense expert,
Dr. Julie Dorney, testified that Mobley wasn’t competent to stand
trial. But Dorney conceded that Mobley was aware of the different
pleas and plea bargains and the roles of different trial participants,
that Mobley wasn’t hearing voices at that time, and that Mobley
had his condition under control via medication. Mobley refused to
1 As to any issues not discussed, we summarily affirm.
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4 Opinion of the Court 20-10730
see the government’s expert psychologist, Dr. Scott Duncan, mak-
ing it so that Duncan couldn’t opine on Mobley’s competence di-
rectly. But Duncan testified that an individual can be both “para-
noid schizophrenic” and competent. He further explained that
Mobley’s prison records showed that Mobley had been very stable
over the previous year and gave Mobley the lowest designation for
mental health issues.
Duncan also testified that Mobley’s conduct suggested “false
or grossly exaggerated symptoms”—or malingering—particularly
in light of Mobley’s previous malingering diagnosis. For example,
Mobley previously said that he did not want to be in a multi-de-
fendant trial, giving him a reason to feign incompetency. And a
prison guard testified that, after Mobley refused to meet with Dun-
can, Mobley said that “he didn’t want to see the person to be made
competent.” The government also introduced recordings of calls
that Mobley made from prison within days of Dorney’s May inter-
view finding him incompetent in which Mobley asked someone to
send certain information to his attorneys and laughed and made
plans.
Ultimately, the district court found Mobley competent. The
district court noted that it had conducted a colloquy with Mobley
several months before the competency hearing, and he had under-
stood the charges against him and what was going on.
The trial was five weeks long and included testimony from
more than sixty witnesses, establishing that the Gangster Disciples
was a racketeering enterprise and that the defendants conspired to
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participate in that enterprise through a pattern of racketeering ac-
tivity that included murder and drug trafficking. The trial evidence
included intercepted calls and detailed testimony from twelve
Gangster Disciples members describing the gang’s highly sophisti-
cated organization and rules and specifying the violent, criminal
conduct of numerous Gangster Disciples members, including
Gangster Disciples leaders Mobley and Wall. Several Gangster Dis-
ciples witnesses testified that they had pleaded guilty in this case or
to the RICO conspiracy. And there was some testimony about the
convictions of other coconspirators. There was also significant in-
criminating physical evidence, such as gang literature, drugs, and
firearms—including the firearm that Wall used in murders that
took place at the Wings Cafe. Some of this physical evidence was
recovered from Mobley’s residence. Moreover, the trial evidence
included surveillance video of both Mobley and Wall participating
in attempted murder and murder, respectively.
Witnesses’ testimony and gang literature established that
murder was a feature of the Gangster Disciples and was directed by
gang leadership—not mere random violence. For example, the
gang’s rules include a list of death violations, which are infractions
punishable by death. Witnesses testified that there were special
units of the gang charged with committing murder on gang lead-
ership’s orders.
The evidence connected Mobley and Wall to the gang’s
murders from their positions as gang leaders. For example, Mobley
headed the Hate Committee, which enforced gang rules and
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6 Opinion of the Court 20-10730
committed murders in Georgia. Mobley ordered the Hate Com-
mittee to kill J.H. As for Wall, the evidence showed that he was
also a leader of the gang and used his leadership position to incite
the gunfight at Wings Cafe, which ended in the murder of three
people. Witnesses testified that Wall went to the Wings Cafe seek-
ing a deadly confrontation with his victims and that he instigated
the shootings.
Moreover, witnesses testified about the Gangster Disciples
drug trafficking scheme and specified that the gang trafficked kilo-
grams of cocaine. Gang literature discussed cocaine trafficking and
how to do it effectively. Junior members were trained on drug traf-
ficking, and gang leadership organized drug trafficking across state
lines. Furthermore, cocaine and drug trafficking paraphernalia
were seized from Mobley’s residence during a search. Law enforce-
ment agents testified about many of these facts based on their in-
vestigation.
Witnesses also testified that Grice was a Gangster Disciples
leader in the Houston area. The jury heard evidence that Grice per-
sonally participated in Gangster Disciples management and in
packaging a large Louisiana cocaine shipment. Other witnesses tes-
tified that Grice was involved in cocaine and heroin trafficking, and
cell phone records established that Grice was in a car following the
Louisiana cocaine shipment and made thirty-eight calls from
nearby the Louisiana traffic stop that caught the drug shipment
right after the stop happened.
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At one point during trial, after the government introduced
calls between coconspirators, Mobley—over the government’s ob-
jection—elicited testimony that the defense didn’t have the same
opportunity to put “calls” before the jury. Mobley then later unsuc-
cessfully tried to introduce evidence of a call. Consequently, the
district court instructed the jury on the hearsay rule and the cocon-
spirator exception, explaining that the defense may not use the co-
conspirator exception but may use other exceptions to the hearsay
rule.
The district court also instructed that the evidence of guilty
pleas and convictions was admitted for the limited purpose of ex-
plaining why certain individuals weren’t part of the trial and di-
rected the jury that it could not consider that evidence “in deciding
the guilt or innocence of the defendants here on trial.”
At the end of evidence, the district court instructed the jury
on the relevant charges. The court explained to the jury during trial
and in the final charge that it was the jury’s responsibility to deter-
mine that a conspiracy existed before it could consider coconspira-
tor statements. And the court instructed that the jury “shouldn’t
assume from anything I’ve said that I have any opinion about any
factual issue in this case” and that the jury had to “arriv[e] at [its]
own decision about the facts.”
There was a dispute below about the mens rea. Mobley pro-
posed an instruction that would have instructed the jury that he
had to have knowledge that a coconspirator would commit racket-
eering acts. But then Mobley seemingly changed his position after
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8 Opinion of the Court 20-10730
arguing for the knowledge language. In Mobley’s objections to the
jury instructions, which Wall adopted, he argued that the “know-
ing” language in the enhanced sentencing element was “an incor-
rect statement of the law.” Mobley proposed that the instruction
be changed to “charge the jury that the defendant joined or re-
mained in the conspiracy knowing, intending[,] and agreeing that
the enterprise engaged in this type of racketeering activity.” Before
the jury was instructed, Mobley and Wall again asserted that the
sentencing element jury instruction stated “the incorrect stand-
ard.” Again, counsel told the district court that “it has to be [] know-
ing, intending, and agreeing that the enterprise engaged in this type
of activity.” Ultimately, the district court instructed the jury that
“[f]or those racketeering activity types, you must unanimously de-
cide whether the Defendant joined or remained in the RICO con-
spiracy knowing that the enterprise engaged in this type of racket-
eering activity.”
In its narration of what counts as a “pattern of racketeering
activity,” the district court defined “acts involving murder” broadly
to “include[] murder, attempted murder, and/or conspiracy to
murder.” Dist. Ct. Doc. 2905 at 17. In this context, the district court
explained the difference between murder—both standard murder
with its requirement of malice aforethought and felony murder—
and an inchoate crime like conspiracy to commit murder.
The jury verdict form for each defendant contained the rel-
evant charges. Importantly, the special verdict form asked whether
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the conspiracy “involve[d] murder” for purposes of the enhanced
sentencing provision of 18 U.S.C. § 1963(a).
Grice was convicted of RICO conspiracy in violation of 18
U.S.C. § 1962(d) and drug trafficking conspiracy in violation of 21
U.S.C. § 846.
The jury found Mobley and Wall guilty of RICO conspiracy
and found by special verdict for each defendant that the RICO con-
spiracy “involve[d] murder.” For Mobley, the jury also found that
the RICO conspiracy involved at least five kilograms of a mixture
containing cocaine.
The jury also found Mobley guilty of committing a violent
crime in aid of a racketeering activity (VICAR)—specifically
VICAR attempted murder in violation of 18 U.S.C. § 1959(a)(5)—
and of using a firearm during and in relation to a crime of violence
in violation of 18 U.S.C. § 924(c) (Count 3).
And the jury found Mobley guilty of possessing cocaine with
intent to distribute it based on a small quantity of cocaine found at
his residence during the execution of a search warrant (Count 4)
and a related firearms offense under 18 U.S.C. § 924(c) (Count 5).
After trial, Mobley renewed a motion for acquittal on Counts 4 and
5 and on the drug quantity special verdict for the RICO conspiracy
conviction. The court granted the acquittal motion as to Counts 4
and 5 but upheld the drug quantity special verdict. In upholding the
drug quantity finding, the district court relied on a Gangster Disci-
ples cooperator’s testimony that historically the Gangster Disciples
trafficked in multiple kilograms of cocaine, the cocaine recovered
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10 Opinion of the Court 20-10730
from the residences of Gangster Disciples coconspirators, and the
evidence that Grice was trafficking twenty kilograms of cocaine.
At issue in this appeal, Mobley and Wall received sentences
for their RICO conspiracy counts based on the enhanced statutory
maximum provision over objections raised at sentencing. The dis-
trict court sentenced Mobley to 360 months of imprisonment on
the RICO conspiracy count, a concurrent 120-month term for the
VICAR attempted murder conviction, and a mandatory consecu-
tive 120-month term on the Count 3 section 924(c) offense, for a
total sentence of 480 months. The district court stated that it would
give Mobley the same 480-month sentence even if the RICO con-
spiracy conviction were invalidated. The district court sentenced
Wall to 360 months of imprisonment for the RICO conspiracy.
The defendants appealed. Grice challenges the sufficiency of
the evidence for his convictions. Mobley and Wall challenge vari-
ous aspects of their convictions and challenge receiving the en-
hanced statutory maximum sentences.
II.
We must apply several standards of review to the issues in
this appeal.
“We review a district court’s determination of ‘competency
to stand trial as a factfinding subject to reversal only for clear er-
ror.’” United States v. Saingerard, 621 F.3d 1341, 1343 (11th Cir. 2010)
(quoting United States v. Izquierdo, 448 F.3d 1269, 1276 (11th Cir.
2006)). “Where there are two permissible views of the evidence,
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the factfinder’s choice between them cannot be clearly erroneous.”
Id. (quoting Izquierdo, 448 F.3d at 1278).
We review several of the challenged decisions de novo. “We
review a denial of a motion for judgment of acquittal de novo.”
United States v. Maurya, 25 F.4th 829, 841 (11th Cir. 2022) (emphasis
added) (citing United States v. Broughton, 689 F.3d 1260, 1276 (11th
Cir. 2012)). “The evidence is sufficient if, taking it in the light most
favorable to the government [and drawing all reasonable infer-
ences in the government’s favor], ‘a reasonable trier of fact could
find that the evidence established guilt beyond a reasonable
doubt.’” Id. (quoting Broughton, 689 F.3d at 1276); United States v.
Spradlen, 662 F.2d 724, 727 (11th Cir. 1981). This standard is the
same for a sufficiency of the evidence challenge to a statute’s en-
hanced sentencing provision. And we also “review challenges to
the constitutionality of a sentence de novo.” United States v. Flanders,
752 F.3d 1317, 1342 (11th Cir. 2014) (quoting United States v.
Sanchez, 586 F.3d 918, 932 (11th Cir. 2009)).
We can apply harmless error principles to most sentencing
issues, including constitutional violations under Apprendi v. New Jer-
sey, 530 U.S. 466 (2000). See United States v. Candelario, 240 F.3d
1300, 1307 (11th Cir. 2001) (quoting Neder v. United States, 527 U.S.
1, 7 (1999)). And we review the record de novo in performing harm-
less error review. See United States v. Hands, 184 F.3d 1322, 1330 n.23
(11th Cir.), (quoting United States v. Scroger, 98 F.3d 1256, 1261 (10th
Cir. 1996), modified on other grounds by, 194 F.3d 1186 (11th Cir.
1999).
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12 Opinion of the Court 20-10730
What’s more, we review the cumulative effect of trial errors
de novo. See United States v. Pendergrass, 995 F.3d 858, 881 (11th Cir.
2021) (citing United States v. Dohan, 508 F.3d 989, 993 (11th Cir.
2007)). And we interpret statutes de novo. See United States v. Rojas,
718 F.3d 1317, 1319 (11th Cir. 2013) (citing United States v. Murrell,
368 F.3d 1283, 1285 (11th Cir. 2004)).
We also review several of the challenged decisions for an
abuse of discretion. “We review a court’s refusal to instruct the jury
on a lesser included offense for [an] abuse of discretion.” United
States v. Nguyen, 255 F.3d 1335, 1340 (11th Cir. 2001) (citing United
States v. Cornillie, 92 F.3d 1108, 1109 (11th Cir. 1996)). And we re-
view a judge’s determination that relevant evidence is admissible,
rather than excludable under Federal Rule of Evidence 403, for an
abuse of discretion. See United States v. Eason, 920 F.2d 731, 734
(11th Cir. 1990) (citing United States v. Griffin, 778 F.2d 707, 709
(11th Cir. 1985)). We likewise review for an abuse of discretion a
district court’s decisions about the admissibility of testimony. See
United States v. Hawkins, 934 F.3d 1251, 1264 (11th Cir. 2019) (citing
United States v. Emmanuel, 565 F.3d 1324, 1335 (11th Cir. 2009)).
Finally, we review most challenges that are raised for the
first time on appeal for plain error. See United States v. Gresham, 325
F.3d 1262, 1265 (11th Cir. 2003).
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III.
A.
We will start with Mobley’s competency to stand trial. The
district court found that Mobley had schizophrenia but was still
competent to stand trial and assist with his defense. There was sig-
nificant evidence of Mobley’s schizophrenia. Indeed, the district
court deferred to Mobley’s medical diagnosis, finding that Mobley
was “suffering from a mental disease or defect, that is, paranoid
schizophrenia and/or antisocial personality disorder”—although
the court noted serious questions about that diagnosis given the
evidence of malingering. Nonetheless, the court found Mobley was
“able to understand the nature and consequences of the proceed-
ings against him and to assist properly in his defense.” We review
this competency determination for clear error. See Saingerard, 621
F.3d at 1343 (quoting Izquierdo, 448 F.3d at 1276). As long as the
district court chooses one permissible view of the evidence, we
must affirm on this issue. See id. (quoting Izquierdo, 448 F.3d at
1278). Mobley cannot meet this high bar.
A defendant is incompetent “if ‘there is reasonable cause to
believe that the defendant may presently be suffering from a men-
tal disease or defect rendering him mentally incompetent to the ex-
tent that he is unable to understand the nature and consequences
of the proceedings against him or to assist properly in his defense.’”
Id. (quoting 18 U.S.C. § 4241(a)) (citing Dusky v. United States, 362
U.S. 402 (1960)). “[O]dd behavior” and a “history of mental illness”
don’t “mandate a finding of incompetency.” Battle v. United States,
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14 Opinion of the Court 20-10730
419 F.3d 1292, 1299 (11th Cir. 2005); see also id. at 1299 n.9 (“[M]en-
tal illness, as a matter of law, does not preclude a finding of compe-
tency to stand trial.”). In short, Mobley could have a mental illness
and still be competent to stand trial.
Applying the deferential standard of review, we cannot say
the district court clearly erred. To be sure, a defense expert opined
that Mobley wasn’t competent to stand trial, and there is no direct
opposing testimony that Mobley was competent. Nonetheless,
there is circumstantial evidence that Mobley was competent. Be-
cause Mobley refused to see the government’s expert psychologist,
Dr. Duncan, Duncan couldn’t opine on Mobley’s competence di-
rectly. But Duncan testified that an individual can be “paranoid
schizophrenic” and still be competent, and he testified that
Mobley’s prison records showed that he had been very stable over
the previous year and gave him the lowest designation for mental
health issues. Duncan also opined that Mobley’s evaluation record
raised concern that Mobley may be malingering—expressing false
or grossly exaggerated symptoms. The testimony of a prison guard
and prison recordings suggested that Mobley understood the pro-
ceedings and may have been exaggerating his symptoms. Finally,
the district judge cited an in-person colloquy with Mobley, after
which the district court believed that Mobley understood the
charges and proceedings.
In conclusion, there is evidence that Mobley was competent.
Mental illness alone isn’t enough to be incompetent; the key is a
defendant’s ability to assist counsel and understand the charges. See
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Battle, 419 F.3d at 1299 (quoting Medina v. Singletary, 59 F.3d 1095,
1107 (11th Cir. 1995)). Based on this record, we cannot second-
guess the district court’s assessment. Because we cannot hold that
the district court clearly erred by choosing one permissible view of
the facts, Mobley’s competency argument must fail.
B.
We turn now to Grice’s appeal. Unlike the other defendants,
Grice challenges the sufficiency of evidence for his convictions for
RICO conspiracy (Count 1) and drug trafficking conspiracy
(Count 24). He argues that the district court erred by denying his
motion for judgment of acquittal because the government failed to
prove each element of the two offenses beyond a reasonable doubt.
The burden on this issue on appeal is on Grice, and he fails to sus-
tain it because there is sufficient evidence to support Grice’s con-
victions.
To establish a RICO conspiracy under 18 U.S.C. § 1962(d),
the government must prove that the defendants “objectively man-
ifested, through words or actions, an agreement to participate in
the conduct of the affairs of the enterprise through the commission
of two or more predicate crimes.” United States v. Starrett, 55 F.3d
1525, 1543 (11th Cir. 1995) (quoting United States v. Russo, 796 F.2d
1443, 1455 (11th Cir. 1986)) (citing United States v. Gonzalez, 921
F.2d 1530, 1540 (11th Cir. 1991); United States v. Elliott, 571 F.2d 880,
902 (5th Cir. 1978)). “Agreement to participate in a RICO conspir-
acy can be prove[n] in one of two ways”: (1) “by showing an agree-
ment on an overall objective” or (2) “by showing that a defendant
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16 Opinion of the Court 20-10730
agreed personally to commit two predicate acts.” United States v.
Abbell, 271 F.3d 1286, 1299 (11th Cir. 2001) (citing United States v.
Church, 955 F.2d 688, 694 (11th Cir.1992)). An agreement on an
overall objective may be proven “by circumstantial evidence show-
ing that each defendant must necessarily have known that others
were also conspiring to participate in the same enterprise through
a pattern of racketeering activity.” Starrett, 55 F.3d at 1544 (quoting
Gonzalez, 921 F.2d at 1540). “RICO conspiracy requires neither
proof of the commission of an overt act nor proof of an agreement
to commit individual predicate acts.” United States v. Green, 981 F.3d
945, 952 (11th Cir. 2020) (citing Starrett, 55 F.3d at 1543; United
States v. Pepe, 747 F.2d 632, 659 (11th Cir. 1984)).
To establish a drug trafficking conspiracy under 21 U.S.C.
§ 846, the government must prove (1) an agreement between two
or more people to possess with intent to distribute at least five kil-
ograms of cocaine, (2) that the defendant knew about the agree-
ment, and (3) that the defendant voluntarily joined the agreement.
See United States v. Azmat, 805 F.3d 1018, 1035 (11th Cir. 2015) (cit-
ing United States v. Monroe, 866 F.2d 1357, 1365 (11th Cir. 1989)).
The existence of an agreement may “be prove[n] by inferences
from the conduct of the alleged participants or from circumstantial
evidence of a scheme.” United States v. Mateos, 623 F.3d 1350, 1362
(11th Cir. 2010) (quotation marks omitted) (quoting United States v.
Molina, 443 F.3d 824, 828 (11th Cir.2006)). A drug trafficking con-
spiracy conviction will be upheld “if there is sufficient positive in-
dication that an illegal agreement exists, or when the circumstances
surrounding a person’s presence at the scene of conspiratorial
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activity are so obvious that knowledge of its character can fairly be
attributed to him.” United States v. Figueroa, 720 F.2d 1239, 1246
(11th Cir. 1983) (citations omitted).
Here, witnesses testified that Grice was a Gangster Disciples
leader in the Houston area. The jury heard evidence that Grice per-
sonally participated in Gangster Disciples management and the
packaging of the Louisiana cocaine shipment. Other witnesses tes-
tified that Grice was involved in cocaine and heroin trafficking, and
cell phone records established that Grice was in a car following the
Louisiana cocaine shipment and made thirty-eight calls right after
the Louisiana traffic stop from nearby that stop. Thus, the record
evidence, taken in the light most favorable to the government, sup-
ports both of Grice’s convictions for conspiracy because “a reason-
able trier of fact could find that the evidence established guilt be-
yond a reasonable doubt.” Maurya, 25 F.4th at 841 (quoting Brough-
ton, 689 F.3d at 1276). There was sufficient evidence for both the
RICO conspiracy and drug trafficking conspiracy charges. Grice is
wrong that his convictions are based on only speculation.
C.
Next, we face the question whether the district court cor-
rectly subjected Mobley and Wall to an enhanced statutory maxi-
mum sentence for their racketeering conspiracy convictions or in-
stead violated Apprendi v. New Jersey, 530 U.S. 466 (2000), with the
360-month sentence. The general statutory maximum sentence
under the Racketeer Influenced and Corrupt Organizations Act is
twenty years. See 18 U.S.C. § 1963(a). But “[t]he Act provides for a
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18 Opinion of the Court 20-10730
maximum sentence of life imprisonment instead of only [twenty]
years if ‘the violation is based on a racketeering activity for which
the maximum penalty includes life imprisonment.’” Caldwell, 81
F.4th at 1174 (quoting 18 U.S.C. § 1963(a)). Mobley and Wall re-
ceived thirty years under this enhanced statutory maximum sen-
tencing provision.
The defendants collectively bring four challenges. 2 First, the
defendants contend that the jury instructions (by referencing “acts
involving murder”) and the verdict form (by asking whether the
conspiracy “involve[d] murder”) failed to limit the jury’s special
verdict finding to crimes that carry a life sentence like murder and
instead expanded it to other crimes like attempted murder and con-
spiracy to murder. Second, the defendants argue that the jury in-
structions should have required the jury to find each defendant’s
agreement and intent that the enterprise engage in murder or drug
trafficking of a large quantity of drugs. Third, Wall individually ar-
gues that the court should have given a lesser-included offense in-
struction. Fourth, Mobley separately brings a sufficiency of the ev-
idence challenge to the enhanced sentencing provision, arguing
that the evidence was insufficient for the jury to find that he knew
the conspiracy involved murder or the trafficking of over five kilo-
grams of a controlled substance.
2 Because Grice brought only one challenge, discussion of the “defendants”
throughout the remainder of the opinion’s analysis refers to Mobley and Wall.
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1.
Mobley and Wall first argue that the district court’s jury in-
structions and the special verdict form on the enhanced sentencing
provision were overbroad and violated their due process rights un-
der the Fifth Amendment and the notice and jury trial guarantees
of the Sixth Amendment. Because Apprendi requires that, “[o]ther
than the fact of a prior conviction, any fact that increases the pen-
alty for a crime beyond the prescribed statutory maximum must be
submitted to a jury[] and proved beyond a reasonable doubt,” 530
U.S. at 490, the defendants argue that ambiguity in what the jury
was asked to find means that they cannot be sentenced to more
than twenty years in prison on their RICO conspiracy convictions.
The argument goes that if the jury didn’t find a section 1962(d)
predicate for which the maximum penalty includes life imprison-
ment, section 1963(a) cannot be satisfied and their sentences be-
yond twenty years would violate Apprendi. Specifically, Mobley
and Wall argue that the district court’s jury instructions and special
verdict form on the enhanced sentencing provision did not limit
the jury’s special finding to racketeering activities for which the
maximum penalty is life imprisonment. Because the district court
instructed the jury to consider whether the defendants had en-
gaged in “acts involving murder”—which the district court defined
to “include[] murder, attempted murder, and/or conspiracy to
murder”—and the special verdict form contained the language “in-
volve[d] murder,” Mobley and Wall contend that this language in-
vited the jury to consider inchoate crimes like attempted murder
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20 Opinion of the Court 20-10730
and conspiracy to murder, which do not carry a life sentence under
Georgia law.
The government argues that Mobley and Wall invited this
error because their proposed jury instructions also contained the
“involving murder” language. In a letter under Federal Rule of Ap-
pellate Procedure 28(j), the government argues that the defend-
ants’ challenge on this point is foreclosed by Caldwell.
We need not decide whether the defendants invited the er-
ror because their challenge is squarely foreclosed by Caldwell. In
Caldwell, which involved a separate trial of some of Mobley and
Wall’s coconspirators, we rejected a challenge to section 1963(a)
jury instructions and a jury verdict form with the same challenged
language. See 81 F.4th at 1180–82. In doing so, we stated that this
argument didn’t even implicate Apprendi because it was about the
district court’s allegedly improper interpretation of the jury’s find-
ings instead of a factual finding by the district court that increased
the statutory range for a defendant’s sentence. See id. at 1181.
Wall and Mobley argue that Caldwell is distinguishable be-
cause the defendants there did not preserve the objection to the
section 1963(a) instruction, but Wall and Mobley did. But the rea-
soning of Caldwell applies, especially because Caldwell doesn’t tie
the key reasoning on this issue to the plain error review standard.
See id. at 1181–82. It wasn’t a case in which we said that we couldn’t
find plain error because of its high standard; we simply found no
error.
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20-10730 Opinion of the Court 21
Mobley and Wall concede that the verdict form language in
Caldwell is “identical” to the instructions here. In both cases, the
jury verdict form asked the jury to find whether the conspiracy “in-
volve[d] murder.” Id. at 1181 (alteration in original) (emphasis
omitted). And indeed, the key jury instructions that allegedly led to
error on this issue were also identical in Caldwell because in both
cases the district court defined “acts involving murder” to “in-
clude[] murder, attempted murder, and/or conspiracy to murder.”
Dist. Ct. Doc. 2905 at 17; see also Caldwell, 81 F.4th at 1181.
We held in Caldwell that this exact language in the verdict
form required the jury to find “that the conspiracy included actual,
not inchoate, murder as part of its racketeering activities”; and we
said that the district court defined “acts involving murder” in a dif-
ferent context such that there was no ambiguity in the instructions.
81 F.4th at 1181. Here, just as in Caldwell, the district court did not
instruct the jury that it could use a finding of inchoate murder to
satisfy the enhanced sentencing provision.
The district court defined “acts involving murder” broadly
to include inchoate murder only in its narration of what counts as
a “pattern of racketeering activity.” That context was about finding
at least two predicate acts for a RICO conspiracy conviction. See id.
But just as in Caldwell, “the district court never said that the jury
should read the phrase ‘involve murder’ to mean ‘involve acts in-
volving murder.’” Id. Indeed, just as in Caldwell, it is critical that
“[t]he district court specifically defined ‘murder’ to include only ac-
tual murder under Georgia law, which is ‘a racketeering activity for
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22 Opinion of the Court 20-10730
which the maximum penalty includes life imprisonment.’” Id.
(quoting 18 U.S.C. § 1963(a)) (citing Ga. Code § 16-5-1(e)(1)). And
just as in Caldwell, “the verdict form asked whether the conspiracy
‘involve[d] murder,’ not ‘acts involving murder.’” Id. (alteration in
original). We held in Caldwell that “[t]he plain meaning of this
phrase is that the question concerns what the district court defined
as murder, not what the district court defined as acts involving mur-
der.” Id. Therefore, Caldwell decided the exact dispute at issue here.
A close reading of the record combined with Caldwell’s reasoning
establishes that there was no error. Mobley and Wall’s first chal-
lenge to the enhanced sentencing provision fails.
2.
Mobley and Wall also argue that the jury instructions on the
sentencing element were erroneous because the jury was not in-
structed to find that Mobley and Wall had the specific intent to as-
sist in murder or large-scale drug trafficking. Instead, the district
court instructed the jury that “[f]or those racketeering activity
types, you must unanimously decide whether the Defendant
joined or remained in the RICO conspiracy knowing that the en-
terprise engaged in this type of racketeering activity.” Mobley and
Wall contend that “knowledge” that the enterprise was engaged in
murder and drug trafficking was insufficient and argue that, to au-
thorize a higher statutory sentence consistent with Apprendi, the
jury needed to find intent. Put differently, Mobley and Wall argue
that the section 1963(a) sentencing element instruction language
needed to mirror the substantive conspiracy element instruction.
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20-10730 Opinion of the Court 23
The government responds that Mobley and Wall invited the error
and waived or forfeited this challenge. And even if they can chal-
lenge the “knowing” language on appeal, the government con-
tends there was no error.
Ultimately, even if Mobley and Wall didn’t invite the error
and the failure to instruct on intent were error, any error was harm-
less. Although a district court may not under Apprendi impose a
statutorily enhanced sentence without a jury finding that is neces-
sary to that sentence, “Apprendi errors do not fall within the limited
class of ‘fundamental constitutional errors that defy analysis by
harmless error standards.’” United States v. Candelario, 240 F.3d
1300, 1307 (11th Cir. 2001) (internal quotation marks omitted)
(quoting Neder v. United States, 527 U.S. 1, 7 (1999)). We have held
that an Apprendi error is harmless when “it is clear beyond a rea-
sonable doubt that a rational jury would have found the defendant
guilty absent the error.” United States v. Nealy, 232 F.3d 825, 829
(11th Cir. 2000) (quoting Neder, 527 U.S. at 18). Applied to the en-
hanced sentencing provision, the error is harmless if it is clear be-
yond a reasonable doubt that a rational jury would have found the
facts necessary for the enhanced sentencing provision to apply to
the defendants, absent the alleged knowledge-versus-intent error.
The evidence here establishes that the Gangster Disciples
enterprise included murder and that both Mobley and Wall entered
into the RICO conspiracy and remained in it intending to commit
murder. Many witnesses’ testimony and gang literature established
that murder was a key feature of the Gangster Disciples and was
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24 Opinion of the Court 20-10730
directed by gang leadership; it wasn’t just random violence. For ex-
ample, the rules of the gang include a list of death violations—in-
fractions punishable by death. Witnesses testified that there were
special units of the gang charged with committing murder on gang
leadership’s orders.
And the evidence established beyond a reasonable doubt
that, as gang leaders, Mobley and Wall were part of the enterprise’s
murders. For example, Mobley headed the Hate Committee,
which enforced gang rules and committed murders in Georgia.
Mobley ordered the Hate Committee to kill J.H. As the govern-
ment persuasively argues, Mobley’s argument that he attempted
murder but did not know and intend for the conspiracy to com-
plete the crime of actual murder confounds logic. As for Wall, the
evidence established beyond a reasonable doubt that he was also a
leader of the gang and used his leadership position to incite the gun-
fight at Wings Cafe, which ended in the murder of three people.
Witnesses testified that Wall went to the Wings Cafe seeking a
deadly confrontation with his victims and that he instigated the
shootings. For both Mobley and Wall, the evidence established be-
yond a reasonable doubt that each intended to murder or intended
that others murder as part of the Gangster Disciples enterprise.
Furthermore, the evidence also established beyond a reason-
able doubt that Mobley joined and remained in the conspiracy
knowing and intending that the enterprise would engage in felony
drug trafficking sufficient for a life sentence. Witnesses testified
about the gang’s drug trafficking scheme and specified that it
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20-10730 Opinion of the Court 25
trafficked kilograms of cocaine. And the evidence showed that drug
trafficking was pervasive through the gang. Gang literature dis-
cussed cocaine trafficking and how to do it effectively. Junior mem-
bers were trained on drug trafficking, and gang leadership orga-
nized drug trafficking across state lines. Mobley was no exception:
cocaine and drug trafficking paraphernalia was seized from
Mobley’s residence during a search. Mobley argues that this is not
enough to establish that he knew about the gang’s drug trafficking
in quantities exceeding five kilograms and that he did not agree to
participate in the conspiracy as to drug trafficking. But because the
evidence established that there was cocaine and drug trafficking
paraphernalia in Mobley’s house—even if the district court tossed
the possession count—that Mobley was a gang leader, and that
even low-level members of the gang were aware of the large-scale
drug trafficking enterprise, the evidence established beyond a rea-
sonable doubt that Mobley joined and remained in the conspiracy
intending to commit drug trafficking that supported a life sentence
in furtherance of the Gangster Disciples enterprise.
Because “it is clear beyond a reasonable doubt that a rational
jury would have found,” absent the alleged knowledge-versus-in-
tent error, that Mobley and Wall had committed a predicate rack-
eteering act that could receive a life sentence as part of their respec-
tive RICO conspiracy convictions, any error was harmless—not re-
versible error. Nealy, 232 F.3d at 829 (quoting Neder, 527 U.S. at 18).
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26 Opinion of the Court 20-10730
3.
Next, Wall argues that the district court erred by not grant-
ing his request to include voluntary manslaughter as a defense to
the murder finding in the special verdict form. He argues that the
evidence supported a voluntary manslaughter defense and that the
jury could have found his participation in the conspiracy involved
manslaughter, not murder, which would make him ineligible for a
sentence over twenty years. The government argues that lesser-in-
cluded-offense instructions are not applicable in the context of a
RICO conspiracy. The government’s argument is better.
We have already considered whether a district court is obli-
gated to instruct a jury on the lesser included offenses of a predicate
act as part of the guilt instructions for a RICO conspiracy. See United
States v. Nguyen, 255 F.3d 1335, 1339–40 (11th Cir. 2001). We have
explained that “the purpose of a lesser included offense instruction
is to afford the defendant the opportunity to be found guilty of a
crime that carries a lesser sentence than the charged offense.” Id. at
1340 (citing United States v. Forsythe, 594 F.2d 947, 952 (3d Cir.
1979)). Because a defendant “cannot be convicted of either the state
law felonies alleged as predicate acts or the lesser included offenses
of those felonies when he is tried for a RICO violation in federal
court,” we held that instructions on lesser included offenses were
not required. Id. (citing Forsythe, 594 F.2d at 952).
The government argues that the reasoning in Nguyen “ap-
plies equally to the murder special verdict.” Wall responds that
Nguyen does not foreclose his argument because instructing the
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20-10730 Opinion of the Court 27
jury on lesser included offenses in the sentencing element is not the
same as instructing the jury on the lesser included offenses as part
of the guilt finding for the conspiracy. Wall is wrong. Although
Nguyen did not address whether courts must instruct on lesser in-
cluded offenses as part of the sentencing element of sec-
tion 1963(a), Nguyen’s reasoning applies. A RICO conspiracy based
on murder “is not simply a federalized version of the state crime”
of murder but “a distinct substantive offense that requires proof of
its own particular elements.” United States v. Diaz, 176 F.3d 52, 101
(2d Cir. 1999). To prevail on the sentencing element of sec-
tion 1963(a), the government must prove that the elements of an-
other criminal offense that carries a life sentence were satisfied. See
United States v. Simmons, 11 F.4th 239, 259 (4th Cir. 2021).
So for the jury to find that Wall was eligible for a sentence
over twenty years, the government had to prove that the conspir-
acy involved an offense that carries a life sentence—not a lesser of-
fense like negligent homicide or voluntary manslaughter. See 18
U.S.C. § 1961(1) (defining “racketeering activity” to include murder
but not lesser offenses of murder). The jury was instructed on mur-
der and the requirement of malice aforethought and was instructed
on felony murder. Thus, the jury was properly instructed on an
offense that carries a life sentence and ultimately found that the en-
hanced sentencing element’s facts were met. The jury wasn’t in-
structed on voluntary manslaughter—which, by contrast, wasn’t a
valid predicate offense for the enhanced sentencing element. But
the jury need not be instructed on every crime. Indeed, a district
court is not required to “charge respecting an offense of which the
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28 Opinion of the Court 20-10730
defendant could not be found guilty.” Nguyen, 255 F.3d at 1340
(quoting Forsythe, 594 F.2d at 952). And just as in the context of guilt
for the RICO conspiracy itself, because a defendant “cannot be con-
victed of [] the state law felonies alleged as predicate acts or the
lesser included offenses of those felonies when he is tried [and sen-
tenced] for a RICO violation in federal court,” instructions on lesser
included offenses were not required. Id. Therefore, Wall’s argu-
ment fails. The district court didn’t abuse its discretion by refusing
to give the lesser-included-offense instruction.
4.
In the final sentence-related challenge, Mobley challenges
the sufficiency of the evidence supporting the finding that the en-
hanced sentencing provision applies to him. 3 Mobley argues that
the evidence was insufficient for the jury to find that he knew that
the conspiracy involved actual murders or the trafficking of over
five kilograms of a controlled substance. Mobley argues that the
evidence only supported a finding that he committed attempted
murder but cannot support a finding that he knew about any actual
murder committed by the conspiracy. The government argues that
the evidence overwhelmingly showed that Mobley was a leader of
the racketeering conspiracy and knew, intended, and agreed that
3 Only Mobley brings this challenge. Wall merely states that the evidence isn’t
too strong but doesn’t so much as say he is making a sufficiency of the evi-
dence challenge. If he tried to do so, he forfeited it due to insufficient briefing.
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20-10730 Opinion of the Court 29
murder was a core part of the Gangster Disciples. We agree with
the government.
In reviewing the sufficiency of the evidence, “we ‘view the
evidence in the light most favorable to the verdict and draw all rea-
sonable inferences and credibility choices in the verdict’s favor.’”
United States v. Iriele, 977 F.3d 1155, 1168 (11th Cir. 2020) (altera-
tions accepted) (quoting United States v. Godwin, 765 F.3d 1306,
1319 (11th Cir. 2014)). “A guilty verdict ‘cannot be overturned if
any reasonable construction of the evidence would have allowed
the jury to find the defendant guilty beyond a reasonable doubt.’”
Id. (quoting United States v. Rodriguez, 732 F.3d 1299, 1303 (11th Cir.
2013).
The evidence discussed above supporting the harmless error
analysis of the knowledge-versus-intent sentencing issue also de-
feats Mobley’s sufficiency of the evidence challenge. The evidence
here was sufficient to show that the Gangster Disciples enterprise
included murder. A reasonable construction of the evidence would
allow the jury to conclude that Mobley knew and agreed that ac-
tual murder was part of the Gangster Disciples enterprise. Moreo-
ver, based on the facts discussed in the harmless error analysis
above, it is clear that the evidence was also sufficient to allow a jury
to reasonably conclude that Mobley joined and remained in the
conspiracy knowing and agreeing that the enterprise engaged in
felony drug trafficking sufficient for a life sentence. And frankly,
there was sufficient evidence that Mobley intended both of these
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30 Opinion of the Court 20-10730
ends of the RICO conspiracy too. Therefore, Mobley’s sufficiency
of the evidence challenge to the enhanced sentencing element fails.
D.
Next, Mobley and Wall challenge the government’s intro-
duction of testimony about the convictions of non-testifying co-
conspirators. They challenge the admission on both a non-consti-
tutional ground that was raised below and a constitutional ground
that wasn’t raised below. Both challenges fail.
We turn first to the admissibility of the testimony under
Federal Rule of Evidence 403. We have held that “[a] co-defend-
ant’s guilty plea may not be used as substantive evidence of the de-
fendant’s guilt.” United States v. McLain, 823 F.2d 1457, 1465 (11th
Cir. 1987), overruled on other grounds by United States v. Watson, 866
F.2d 381 (11th Cir. 1989). Thus, courts must be careful with such
evidence generally. We have also held that “the admission of guilty
pleas or convictions of codefendants or coconspirators not subject
to cross-examination is generally considered plain error.” Eason,
920 F.2d at 734 (citing McLain, 823 F.2d at 1465). And we have
noted that “[t]he prejudice incurred by admission of a conviction
may be even greater than that incurred by admission of a guilty
plea because of the persuasiveness of the judgment of another
group of unbiased fact-finders.” Id. at 734 n.2. We have identified
two exceptions that don’t apply here: (1) where codefendants plead
guilty in the middle of trial and disappear from the courtroom, “the
trial court may comment that codefendants have been excused
from trial for legally sufficient reasons that should have no bearing
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20-10730 Opinion of the Court 31
on the remaining defendants’ guilt or innocence”; and (2) “where a
codefendant takes the witness stand, evidence of a guilty plea may
be introduced to aid the jury in assessing the codefendant’s credi-
bility.” Id. at 734 n.3 (quoting Griffin, 778 F.2d at 710 n.5).
Here, the district court instructed that the evidence of guilty
pleas and convictions was admitted for the limited purpose of ex-
plaining why certain individuals were not part of the trial and di-
rected the jury that it could not consider that evidence in deciding
the guilt or innocence of the defendants. Any error from the admis-
sion of this evidence, however, was harmless because it was merely
cumulative. Several Gangster Disciples witnesses testified that they
had pleaded guilty in this case or to the RICO conspiracy. The fact
that these testifying coconspirators had sustained convictions was
permissibly before the jury to help it evaluate credibility. See Griffin,
778 F.2d at 710 n.5 (“[W]here a codefendant takes the witness
stand, evidence of a guilty plea may be introduced to aid the jury
in assessing the codefendant’s credibility.” (citing United States v.
Baez, 703 F.2d 453, 455 (10th Cir. 1983))). The knowledge that a few
more people had been convicted would not have appreciably
changed the jury’s assessment of the evidence. The introduction of
the convictions and guilty pleas here were, therefore, “merely cu-
mulative,” and thus harmless. United States v. Emmanuel, 565 F.3d
1324, 1336 (11th Cir. 2009).
Next, we turn to the defendants’ summary Sixth Amend-
ment claim on this issue. This claim wasn’t preserved because the
defendants objected below only on the grounds that the evidence
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32 Opinion of the Court 20-10730
was irrelevant and prejudicial. Thus, we review this Sixth Amend-
ment claim for plain error. There are four elements to the plain-
error test: “there must be (1) an error (2) that is plain and (3) that
has affected the defendant’s substantial rights”; and if the first three
elements are met, “then a court may exercise its discretion to cor-
rect the error if (4) the error seriously affects the fairness, integrity
or public reputation of judicial proceedings.” United States v. Moore,
22 F.4th 1258, 1264–65 (11th Cir. 2022) (quoting United States v.
Madden, 733 F.3d 1314, 1320 (11th Cir. 2013)).
Our case law states that “[t]he traditional standard for admis-
sion of a co-defendant’s guilty plea comes under Fed[eral] R[ule]
[of] Evid[ence] 403.” McLain, 823 F.2d at 1465 (citing Griffin, 778
F.2d at 709). Our case law doesn’t state that admission of a code-
fendant’s guilty plea under Rule 403 can nonetheless give rise to a
constitutional problem under the Sixth Amendment. And even if it
had been a Rules-based error, not all error rises to the level of con-
stitutional error; and our case law doesn’t plainly establish that this
would be one even if it were a Rule 403 error. See United States v.
Akwuba, 7 F.4th 1299, 1311 (11th Cir. 2021). Given this case law, we
cannot say that any error was plain even if this were a Sixth Amend-
ment error.
E.
Additionally, the district court made references to cocon-
spirators to the jury that the defendants argue were tantamount to
a directed verdict in this conspiracy case. The defendants are
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20-10730 Opinion of the Court 33
wrong. To start, the defendants didn’t object to this at trial; so we
review this issue for plain error.
“To rise to the level of a directed verdict—and constitute
constitutional error—the trial judge’s statements, viewed as a
whole, must amount to an intervention which could have led the
jury to a predisposition of guilt by improperly confusing the func-
tions of judge and prosecutor.” Id. (cleaned up). But while a district
court judge “has no power to direct a verdict of guilty,” he “has a
wide latitude in commenting on the evidence during his instruc-
tions to the jury.” Id. (quoting Mims v. United States, 375 F.2d 135,
148 (5th Cir. 1967)).
After the government introduced calls between coconspira-
tors at trial, Mobley—over the government’s objection—elicited
testimony that the defense didn’t have the same opportunity to put
“calls” before the jury. Mobley then later unsuccessfully tried to
introduce evidence of a call. Because the implication of these de-
fense actions to the jury was that information was being kept from
the jury, the district court instructed the jury on the hearsay rule
and the coconspirator exception and explained that the defense
may not use the coconspirator exception but may use other excep-
tions to the hearsay rule.
The mention of “coconspirators” in the context of explain-
ing evidentiary rules to the jury is not error. It is merely explaining
the law to the jury so that the jury can understand the proceedings
and the evidence. The district court’s use of the word “coconspira-
tors” was well within its wide latitude to comment on the evidence
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34 Opinion of the Court 20-10730
in instructing the jury. See id. On plain error review of this consti-
tutional issue, we cannot say that the district court erred.
F.
Mobley and Wall next challenge the admission of certain
opinion testimony. Relying on United States v. Hawkins, 934 F.3d
1251 (11th Cir. 2019), they argue that improper opinion testimony
was admitted because the testimony included summaries of the ev-
idence and speculation about ordinary language. This challenge
fails.
In Hawkins, we held that an agent presented as an expert had
given improper expert testimony when he interpreted and specu-
lated about the meaning of unambiguous conversations as a whole.
See id. at 1260–61. We held that the agent’s presentation of sum-
maries of the evidence in the context of an expert opinion was
plain error. See id. at 1261 (holding that it was plain error to allow
an expert agent’s testimony when, “[d]uring his extensive time on
the witness stand,” the agent “interpreted unambiguous language,
mixed expert opinion with fact testimony, [] synthesized the trial
evidence for the jury,” “strayed into speculation,” and “went be-
yond interpreting code words to interpret[ing] conversations as a
whole” (citation and quotation marks omitted)).
But as the defendants acknowledge, Hawkins was about ex-
pert testimony; and we have distinguished Hawkins outside that
context. In United States v. Pendergrass, 995 F.3d 858 (11th Cir. 2021),
we interpreted Hawkins in the face of a similar challenge to alleg-
edly improper opinion and summary testimony. See Pendergrass,
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20-10730 Opinion of the Court 35
995 F.3d at 880. We noted that “[i]n Hawkins, the government pre-
sented the agent there as an expert, but the agent also testified to
matters of fact” such that the “agent’s testimony crossed back and
forth between factual testimony and expert opinion.” Id. We also
stated that “the Hawkins agent provided speculative interpretative
commentary on the meanings of entire conversations, as opposed
to construing just drug code words used during the conversations
and for which he served as an expert.” Id.
We held that the situation was distinguishable in Pendergrass
because in Pendergrass “the government did not admit [the agent]
as an expert, so no danger of confusion between factual and expert-
opinion testimony existed.” Id. at 880–81. The agent in Pendergrass
“also did not purport to have expert knowledge of the subtext of
entire conversations consisting of everyday language, like the agent
in Hawkins did.” Id. at 881. Instead, the Pendergrass agent “simply
reviewed the evidence presented, explaining to the jury how he
linked Pendergrass to the robberies” at issue in that case. Id. “And
significantly, [the agent’s] testimony was supported by surveillance
videos, still pictures, tangible evidence found at Pendergrass’s
home, ballistics, cell-site data, and other witness testimony.” Id.
We held that instead of “involv[ing] improper interpretation of ev-
idence that impeded or invaded the function of the jury,” Pender-
grass “involve[d] the synthesis of a large volume of already-admit-
ted evidence.” Id. There was nothing wrong with such synthesis.
Moreover, “even assuming some of [the agent’s] testimony
strayed into the realm of improper interpretation,” we held that
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36 Opinion of the Court 20-10730
this wasn’t a problem because the agent “was neither the sole nor
the primary witness in the case,” which we concluded “distin-
guishe[d] [Pendergrass] . . . from Hawkins in yet another way.” Id.
Unlike Hawkins in which “the agent [] testified for more than half
the trial,” in Pendergrass “the government presented twenty-seven
witnesses at trial over five days, and many witnesses testified to the
same facts that [the agent] did.” Id.
This case is like Pendergrass, not Hawkins. Here, the case
agents whose testimony is challenged were not qualified as experts,
“so no danger of confusion between factual and expert-opinion tes-
timony existed.” Pendergrass, 995 F.3d at 880–81. Moreover, con-
trary to defendants’ argument, the bulk of the case agents’ testi-
mony was permissible factual or lay opinion testimony tied to the
specifics of their investigation. A lay witness may offer an opinion
that is (1) “rationally based on the witness’s perception,” (2) helpful
to the jury, and (3) not founded on scientific or expert knowledge
within the scope of Federal Rule of Evidence 702. Fed. R. Evid. 701.
A lay witness also may offer “opinion testimony based on his pro-
fessional experiences.” United States v. Williams, 865 F.3d 1328, 1341
(11th Cir. 2017). For example, in United States v. Jayyousi, 657 F.3d
1085 (11th Cir. 2011), we held that an agent’s translation of “code
words that he learned through his examination of voluminous doc-
uments” over the course of his investigation was permissible lay
testimony. Id. at 1103.
Thus, the testimony the defendants challenge wasn’t the
kind of entire-trial-long, all-compassing evidence summary that the
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20-10730 Opinion of the Court 37
expert in Hawkins presented. Instead, the evidence in this case was
the typical factual testimony that a knowledgeable lay witness in-
vestigator may present at trial. This testimony was not admitted in
error. The district court didn’t abuse its discretion.
G.
Mobley raises two final challenges, raising a cumulative er-
ror challenge and separately arguing that the predicate crime used
for his conviction for using a firearm during and in relation to a
crime of violence in violation of 18 U.S.C. § 924(c) wasn’t a crime
of violence.
First, Mobley summarily raises a claim of cumulative error.
“The cumulative-error doctrine calls for reversal of a conviction if,
in total, the non-reversible errors result in a denial of the constitu-
tional right to a fair trial.” Pendergrass, 995 F.3d at 881 (citing United
States v. Reeves, 742 F.3d 487, 505 (11th Cir. 2014)). “We address
claims of cumulative error by first considering the validity of each
claim individually[] and then examining any errors that we find in
the aggregate and in light of the trial as a whole to determine
whether the appellant was afforded a fundamentally fair trial.” Mor-
ris v. Sec’y, Dep’t of Corr., 677 F.3d 1117, 1132 (11th Cir. 2012) (citing
United States v. Calderon, 127 F.3d 1314, 1333 (11th Cir. 1997)). “No
cumulative error exists where a criminal defendant cannot estab-
lish that the combined errors affected his substantial rights.” Pen-
dergrass, 995 F.3d at 881 (citing United States v. Foley, 508 F.3d 627,
638 (11th Cir. 2007)). “A defendant’s substantial rights are not af-
fected if ‘properly admitted evidence sufficiently established [his]
USCA11 Case: 20-10730 Document: 167-1 Date Filed: 09/06/2024 Page: 38 of 38
38 Opinion of the Court 20-10730
guilt.’” Id. (alteration in original) (quoting United States v. Adams, 74
F.3d 1093, 1100 (11th Cir. 1996)). Mobley’s cumulative error claim
related to his conviction fails because—even assuming the testi-
mony that non-testifying coconspirators were convicted and
pleaded guilty were error—a single harmless error cannot be cu-
mulative error. Likewise, his cumulative error claim with respect
to his sentence fails because—even assuming the enhanced sen-
tencing provision issue resolved above on harmless error grounds
were error—again, a single harmless error cannot be cumulative
error.
Second, Mobley challenges his Count 3 conviction for using
a firearm during and in relation to a crime of violence in violation
of 18 U.S.C. § 924(c). Mobley argues that the predicate crime of vi-
olence—Mobley’s Count 2 VICAR attempted murder conviction,
which in turn is partially predicated on Georgia attempted mur-
der—is not a valid crime of violence. But as Mobley concedes, Al-
varado-Linares v. United States, 44 F.4th 1334 (11th Cir. 2022), fore-
closes his challenge. See id. at 1345–48 (providing that Georgia at-
tempted murder is a crime of violence).
IV.
We AFFIRM the defendants’ convictions and sentences.