United States v. Reginald Graham

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19-10332 Opinion of the Court 1

[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 19-10332

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

REGINALD GRAHAM,

a.k.a. The Real Rico,

a.k.a. To Cool Rico,

a.k.a. G'Rico Longllive Kingsqueezer,

a.k.a. Reggie,

ANTONIO GLASS,

a.k.a. ntn_1bloodgangsta@yahoo.com,

a.k.a. Tone Bleedin Red (Tone Gone Bag'em),

a.k.a. Money Man Future @ S16_Future,

a.k.a. smackvilletone,

a.k.a. Tone Glass,

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2 Opinion of the Court 19-10332

a.k.a. (at)tone.glass,

JERIMAINE BRYANT,

a.k.a. RNS DSBF Capo,

a.k.a. (at) d5bf_mc,

a.k.a. Blood @_McMaine06,

a.k.a. Maine,

MARIO RODRIGUEZ,

a.k.a. "Blood",

a.k.a. "str8_crackk",

a.k.a. "Tuti",

TORIVIS REGINALD INGRAM,

a.k.a. "DSBF Mullet'',

MICHAEL WALKER,

a.k.a. Laid Back ManMan,

a.k.a. Baba,

LEVI BRYANT,

a.k.a. Fish,

CURTIS BRYANT,

a.k.a. Snow Luther King Jr.,

a.k.a. Snow Bryant,

a.k.a. Big Momma,

DANIEL JONES,

a.k.a. Dodo,

SAMUEL HAYES,

a.k.a. DSBF Jit,

a.k.a. Nba Flame,

a.k.a. Looney Hoe,

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19-10332 Opinion of the Court 3

a.k.a. Sammy,

Defendants-Appellants.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:17-cr-20307-JEM-7

____________________

Before WILSON, JORDAN, and BRASHER, Circuit Judges.

JORDAN, Circuit Judge:

The Wire is said to be one of best television shows of all time.

That is in large part because of its realistic depiction of gang vio-

lence in an American city. See Emma Jones, How the Wire Became

the Greatest TV Show Ever Made, BBC (Apr. 13, 2018),

https://perma.cc/2V3Q-GYVK; Rob Sheffield, 100 Greatest TV

Shows of All Time, Rolling Stone (Sept. 21, 2016),

https://perma.cc/D862-BGDU. This case is about what happens

when that fiction becomes reality.

Reginald Graham, Antonio Glass, Jerimaine Bryant, Mario

Rodriguez, Torivis Reginald Ingram, Michael Walker, Levi Bryant,

Curtis Bryant, Daniel Jones, and Samuel Hayes appeal their convic-

tions and sentences for committing numerous crimes in connec-

tion with their membership in a Miami-based gang—the Dub

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4 Opinion of the Court 19-10332

Street Blood Family or DSBF. For nearly two decades, the gang

operated in and tyrannized a community through its drug opera-

tions. When narcotics did not prove fruitful enough, its members

turned to armed robberies. And when members stepped out of line

or rivals encroached on the gang’s territory, its members did not

hesitate to kill. 1

The FBI, the Bureau of Alcohol, Tobacco, Firearms, and Ex-

plosives, the City of Miami Police Department, and the Miami-

Dade County Police Department invested considerable resources

to investigate the DSBF and take it down. Their collective work

culminated in a broad indictment charging the defendants with nu-

merous offenses. Count 1 charged Mr. Graham, Mr. Glass,

Jerimaine Bryant, Mr. Rodriguez, Mr. Ingram, Mr. Walker, Levi

Bryant, Curtis Bryant, Mr. Jones, and Mr. Hayes with a racketeer-

ing conspiracy in violation of 18 U.S.C. § 1962(d). Count 2 charged

the same defendants—along with Latitia Houser, Donzell Jones,

and Vencess Toby—with a narcotics conspiracy (to possess 280

grams or more of crack cocaine and marijuana with the intent to

distribute) in violation of 21 U.S.C. § 846. The indictment also

charged the defendants with numerous substantive offenses. 2

1 Because three of the defendants share the last name of Bryant, we use their

full names or first names where necessary.

2 Ms. Houser, Donzell Jones, and Mr. Toby were not defendants in the trial

we review in this appeal.

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19-10332 Opinion of the Court 5

After a 38-day trial, a jury found the defendants guilty of

many of the charges. A summary of the convictions and the sen-

tences imposed follows:

Defendant Counts Sentence of

Imprisonment

Reginald Graham 1 – Racketeering Conspir- 228 months

acy (18 U.S.C. § 1962(d))

2 – Narcotics Conspiracy

(21 U.S.C. § 846)

11 – Attempted Possession

of Narcotics with the In-

tent to Distribute (21

U.S.C. § 846)

Antonio Glass 1 – Racketeering Conspir- Life

acy (18 U.S.C. § 1962(d))

2 – Narcotics Conspiracy

(21 U.S.C. § 846)

19 – Possession of Narcot-

ics with the Intent to Dis-

tribute (21 U.S.C.

§ 841(a)(1))

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Jerimaine Bryant 1 – Racketeering Conspir- Life

acy (18 U.S.C. § 1962(d))

2 – Narcotics Conspiracy

(21 U.S.C. § 846)

5 – Possession of Narcotics

with the Intent to Distrib-

ute (21 U.S.C § 841)

12 – Possession of Narcot-

ics with the Intent to Dis-

tribute (21 U.S.C § 841)

21 – Possession of Narcot-

ics with the Intent to Dis-

tribute (21 U.S.C § 841)

Mario Rodriguez 2 – Narcotics Conspiracy 260 months

(21 U.S.C. § 846)

10 – Possession of a Fire-

arm in Furtherance of

Drug Trafficking (18 U.S.C.

§ 924(c))

22 – Possession of Narcot-

ics with the Intent to Dis-

tribute (21 U.S.C.

§ 841(a)(1))

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Torivis Reginald In- 2 – Narcotics Conspiracy 168 months

graham (21 U.S.C. § 846)

22 – Possession of Narcot-

ics with the Intent to Dis-

tribute (21 U.S.C.

§ 841(a)(1))

Michael Walker 1 – Racketeering Conspir- 235 months

acy (18 U.S.C. § 1962(d))

2 – Narcotics Conspiracy

(21 U.S.C. § 846)

20 – Possession of Narcot-

ics with the Intent to Dis-

tribute (21 U.S.C § 841)

Levi Bryant 2 – Narcotics Conspiracy 192 months

(21 U.S.C. § 846)

4 – Possession of Narcotics

with the Intent to Distrib-

ute (21 U.S.C. § 841(a)(1))

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8 Opinion of the Court 19-10332

Curtis Bryant 1 – Racketeering Conspir- Life

acy (18 U.S.C. § 1962(d))

2 – Narcotics Conspiracy

(21 U.S.C. § 846)

11 – Attempted Possession

of Narcotics with the In-

tent to Distribute (21

U.S.C. § 846)

Daniel Jones 2 – Narcotics Conspiracy 235 months

(21 U.S.C. § 846)

Samuel Hayes 1 – Racketeering Conspir- 334 months

acy (18 U.S.C. § 1962(d))

15 – Hobbs Act Robbery

(18 U.S.C. § 1951(a))

17 – Hobbs Act Robbery

(18 U.S.C. § 1951(a))

18 – Brandishing a Firearm

in Furtherance of a Crime

of Violence (18 U.S.C.

§ 924(c)(1)(A)(ii))

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19-10332 Opinion of the Court 9

The defendants now appeal, raising a host of issues. We va-

cate the Count 1 RICO conspiracy convictions due to the district

court’s erroneous and wholesale exclusion of the defendants’ gang

expert and the government’s complete failure to brief harmless er-

ror, an issue on which it bears the burden. We also vacate the sen-

tence of Mr. Jones due to the improper application of a use-of-vio-

lence enhancement. In all other respects, we affirm.3

I. THE EVIDENCE AT TRIAL

The government’s case was largely based on the testimony

of Special Agent Christopher Mayo of the FBI; Sergeant Surami

Kelly of the City of Miami Police Department; Special Agent Ros-

niel Perez of the ATF; Larry Grimes and Vandel Coakley, former

members of the DSBF; Ms. Houser, a drug supplier for the DSBF

and the ex-girlfriend of one of its members; and Donzell Jones, a

local drug dealer who was close to the DSBF. Viewing the evi-

dence in the light most favorable to the government, see United

States v. Scott, 61 F.4th 855, 863 (11th Cir. 2023), this is generally the

story they told.

As early as the year 2000, law enforcement authorities be-

came aware of a group operating out of the South Gwen Cherry

housing complex in the Allapattah neighborhood of Miami, Flor-

ida. That group called itself the DSBF and its members frequently

identified themselves by other monikers such as RNS (Real N****

Shit) and GMT (Get Money Team). Founded by Isaac “Ike”

3 As to any issues not discussed, we summarily affirm.

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10 Opinion of the Court 19-10332

Thompson, the DSBF had no formal affiliation with the infamous

Bloods street gang of Los Angeles but its members considered

themselves to be “[E]ast coast” Bloods.4

The law enforcement investigation into the DSBF began in

earnest in the early 2010s. The DSBF had a chain of command. At

the top of the chain was a chief executive of sorts, a position held

by men like Mr. Thompson (and then Mr. Glass around 2012). Be-

low him were “Top Smackers” or “TopShottas,” high-ranking dep-

uties who were in charge of the daily drug operations. Then came

the “L.T.s.”—lieutenants who were second in command during

drug transactions and typically collected the money and held the

drugs and firearms. Although this chain of command became

more fluid over time, there was always a designated leader.

The DSBF had an initiation ritual, rules, handshakes, and

hand signs. The initiation involved a 31-second display of loyalty,

usually consisting of fighting a member or committing an act of

violence against outsiders. The 31-second initiation was co-opted

from the “Blood code.” Once initiated, members had to follow at

least two rules: no stealing from the DSBF and no talking to the

police. If a rule was broken, an enforcer, like Mr. Rodriguez, would

oversee a 31-second punishment.

Only members could perform the DSBF handshake; outsid-

ers who tried using it “could get beat up.” The DSBF’s hand signs

4 Later in the opinion, we discuss in more detail the government’s evidence

about the DSBF’s association or affiliation with the Bloods.

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19-10332 Opinion of the Court 11

were intended to symbolize a capital B, a lowercase B, and “East

side,” for “[E]ast coast” Bloods.

The DSBF was not shy about demonstrating its presence to

the outside world. The area around the South Gwen Cherry com-

plex had graffiti tags of the DSBF. And the gang’s members tat-

tooed DSBF on their bodies. As self-proclaimed “[E]ast coast”

Bloods, the DSBF’s members preferred to wear red.

Members frequently boasted of the DSBF on Facebook and

disparaged a rival gang, the “13th Avenue Gang.” In a message that

proved prescient, a friend of the DSBF warned Mr. Graham:

“[D]on’t put that DGMT shit on you all [Facebook] status. Feds

watching that shit yeah.”

Through 2017, the DSBF primarily sold crack cocaine and

marijuana, but its members regularly worked together to commit

other crimes such as armed robberies. The group’s members were

no strangers to violence. Members touted firearms and used

them—killing rival gang members and “outsiders” such as Pooh

Johnson, Richard Hallman, and Terrell Washington. They some-

times even shot their own members for violating the DSBF’s rules.

The DSBF’s criminal activities fell under three broad catego-

ries: (1) drugs; (2) armed robberies; and (3) homicides. We briefly

summarize each of them.

Drugs. The DSBF controlled the sale of drugs—primarily

crack cocaine and marijuana—in the South Gwen Cherry complex.

Narcotics were the group’s financial engine, and many of the deci-

sions were driven by this reality. Only DSBF members could sell

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12 Opinion of the Court 19-10332

at South Gwen Cherry, and they did so “[e]very day” in shifts. Out-

siders like Donzell Jones had to obtain permission to sell drugs

there. Ms. Houser testified that starting in 2015 she began supply-

ing the DSBF—through Mr. Glass, Quincy Bryant, Mr. Graham,

and Mr. Walker—with the drugs the gang sold at South Gwen

Cherry. She also said that Jerimaine Bryant supplied drugs to the

DSBF.

Mr. Coakley testified that when it came to selling drugs,

“everyone had a position.” At the bottom of the rung were “watch

outs,” members who would alert the group if they saw rivals or

police in the area. Members could graduate from a “watch out” to

a “bomb man,” a position which required them to hold the drugs.

They also had a “gunman,” which, as one would expect, was a

member who had a firearm to protect the group.

Mr. Grimes described how a typical narcotics transaction

would be conducted. The DSBF would have at least a watch out

and a bomb man. The drugs would be in a nondescript bag (“the

bomb”) like a trash bag or a chip bag. When a customer requested

drugs, the bomb man would take the cash and walk over to set “the

bomb.” He would then go back to the customer to deliver the

drugs. Sgt. Kelly similarly described the drug transactions from her

team’s controlled purchases.

During Mr. Grimes’ time with the DSBF, sometime in late

2010, Mr. Glass was the L.T. who ran the daily drug operations.

Mr. Glass would collect the money, assign shifts, and provide the

drugs and guns.

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19-10332 Opinion of the Court 13

In addition, Mr. Grimes gave the jury insight into the fi-

nances of the DSBF’s narcotics operations. A “rock” of crack co-

caine sold for $5, and his commission was 20%. On a good day,

Mr. Grimes would pocket $500, and on a bad day $250. He esti-

mated that, on average, the DSBF sold 21 grams of crack cocaine

daily. Like all markets, however, the drug sales would sometimes

be up and other times be down. Starting in 2016, sales were down.

The DSBF’s drug operation dried up significantly; supply was un-

reliable, and the buyers stopped coming. So, like any other market

actor, the DSBF decided to diversify its operations to tap other in-

come streams. That meant turning to robberies.

Armed Robberies. The jury learned of the DSBF’s armed

robberies mostly through Mr. Grimes, who in response to defense

counsel’s questioning stated, “I’m a robber.” Mr. Grimes testified

that he was arrested for four robberies, but had committed over 25

robberies; at some point he stopped counting. Mr. Grimes’ first

robbery with the gang dated to his initiation into the DSBF in 2010,

when he and Mr. Glass (and others who are not defendants here)

attempted to rob a drug dealer. During that attempted robbery,

Mr. Grimes fired a gun provided to him by Mr. Rodriguez to show

that they “ain’t to be played with and we going to shoot.”

Following his first robbery in 2010, Mr. Grimes consistently

committed armed robberies with the DSBF (“[m]ainly every day”).

He identified Mr. Hayes as one of the gang members who fre-

quently joined him in those endeavors. The firearms for the rob-

beries were provided by Messrs. Rodriguez and Glass.

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14 Opinion of the Court 19-10332

Mr. Coakley testified to his participation in four armed rob-

beries in the fall of 2016 with other DSBF members—Mr. Hayes,

Mr. Glass, Mr. Graham, and Curtis Bryant. The government intro-

duced security footage from each of the victimized establishments

and Mr. Coakley walked the jury through each robbery.

On September 17, 2016, Mr. Coakley, Mr. Glass, Mr. Gra-

ham, and Curtis Bryant robbed a Metro PCS store near South

Gwen Cherry at gun point. Less than a week later, Messrs. Coakley

and Hayes robbed the same store. In October of 2016, Messrs.

Coakley, Hayes, and Glass robbed a nearby convenience store.

That same month, Messrs. Coakley and Hayes again robbed the

Metro PCS store. In all four robberies, the members held up the

store clerk at gun point. And sometimes they held customers hos-

tage. After each robbery, the members involved would split the

proceeds evenly.

Homicides. The jury heard testimony about the DSBF’s

killing of Mr. Johnson, Mr. Hallman, and Mr. Washington. All

three men were murdered for crossing the gang. Mr. Glass killed

Mr. Johnson in 2010 for robbing from the DSBF; Mr. Grimes, Mr.

Coakley, and Ms. Houser all testified about that murder. Curtis

Bryant killed Mr. Hallman in 2015 after he shot a younger DSBF

member; Mr. Coakley and Ms. Houser testified about that murder.

Several DSBF members, including Mr. Glass and Curtis Bryant,

killed Mr. Washington in 2016; Mr. Coakley, Ms. Houser, and De-

tective Roderick Passmore testified about that murder.

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19-10332 Opinion of the Court 15

The DSBF’s violence did not stop with outsiders. For exam-

ple, Mr. Glass shot Mr. Grimes in a drive-by shooting for violating

the DSBF’s rules; he had robbed a customer and that was bad for

business.

The narcotics, the robberies, and the murders all shared one

thing in common—firearms. Guns were used to sell drugs, to rob,

and to kill. The DSBF’s members frequently posted pictures on

social media with their guns—sometimes pointing them directly at

the camera. Mr. Coakley testified that he had seen Mr. Rodriguez

and Mr. Glass supply weapons, including handguns and semi-auto-

matic rifles, to DSBF members at South Gwen Cherry.

II. PRE-TRIAL ISSUES

The defendants raise various challenges to the district

court’s pre-trial orders, voir dire findings, evidentiary rulings, jury

instructions, and sentencing determinations. A number of defend-

ants also take issue with the sufficiency of the evidence against

them on some of the charges. We address the issues presented in

rough chronological order.

A. COUNT 2 OF THE INDICTMENT

We begin with Levi Bryant. For the first time on appeal, he

challenges the sufficiency of Count 2 of the indictment. 5

5 Mr. Ingram, Mr. Walker, and Jerimaine Bryant adopted Levi Bryant’s chal-

lenge to Count 2. See Fed. R. App. P. 28(i).

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16 Opinion of the Court 19-10332

Where a defendant did not raise an issue below, we conduct

plain error review. See Fed. R. Crim. P. 52(b); United States v. Olano,

507 U.S. 725, 731–37 (1993). Plain error requires a defendant to

show (1) that there was an error, (2) that the error is plain, and (3)

that the error affected his substantial rights. See United States v.

Hesser, 800 F.3d 1310, 1324 (11th Cir. 2015). If these three condi-

tions are satisfied, we have discretion to correct the error. We

“should correct a forfeited plain error that affects substantial rights

if the error seriously affects the fairness, integrity or public reputa-

tion of judicial proceedings.” Rosales-Mireles v. United States, 585

U.S. 129, 137 (2018) (citation and internal quotation marks omit-

ted).

As relevant here, Count 2 of the indictment charged a num-

ber of defendants, including Levi Bryant, with conspiracy to pos-

sess 280 grams or more of crack cocaine (and marijuana) with the

intent to distribute. See 21 U.S.C. § 846. Numerous other counts

individually or jointly charged different defendants with substan-

tive narcotics offenses, such as possession of a controlled substance

with the intent to distribute. See 21 U.S.C. § 841(a)(1).

According to Levi Bryant, the § 846 conspiracy charged in

Count 2 required a “linked” substantive § 841 violation. In his

view, because Count 2 in part alleged a conspiracy involving in part

280 grams or more of crack cocaine, the government was required

to allege that at least one of the substantive § 841 violations in-

volved 280 grams or more of crack cocaine. But a substantive of-

fense and a conspiracy to commit that offense are separate and

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distinct crimes. See Callanan v. United States, 364 U.S. 587, 593

(1961) (citing Pinkerton v. United States, 328 U.S. 640, 643 (1946)).

They may therefore be separately and independently charged, and

the government is not required to “link” them in the charging in-

strument. See United States v. Shabani, 513 U.S. 10, 11 (1994) (hold-

ing that § 846 does not require proof that “a coconspirator commit-

ted an overt act in furtherance of the conspiracy”).

As we explained decades ago, a conspiracy “is not confined

to the substantive offense which is the immediate aim of the enter-

prise” because “the essence of the crime of conspiracy . . . is an

agreement to commit an unlawful act.” United States v. Cowart, 595

F.2d 1023, 1030 (5th Cir. 1979). As a result, Levi Bryant cannot es-

tablish a defect in the indictment. There was no error, plain or oth-

erwise, in the drafting of Count 2.

B. THE MOTIONS TO SUPPRESS

The district court denied the motions to suppress filed by

Messrs. Jones, Ingram, and Rodriguez. They challenge those deni-

als on appeal.

We review the denial of a motion to suppress under a mixed

standard. We review factual findings for clear error and the appli-

cation of the law to those facts de novo. See United States v. Ford, 784

F.3d 1386, 1391 (11th Cir. 2015).

1. MR. JONES

We begin with Mr. Jones. He sought to suppress his cell

phone and all evidence associated with it on the grounds that (1)

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18 Opinion of the Court 19-10332

he was illegally detained during a traffic stop and (2) the phone was

seized without probable cause.

A magistrate judge held an evidentiary hearing at which Sgt.

Kelly and Agent Perez testified. Following that hearing, the mag-

istrate judge recommended that Mr. Jones’ motion be denied be-

cause the officers’ search was incident to a lawful arrest. The dis-

trict court then adopted the magistrate judge’s recommendation.

We find no error in the district court’s factual findings or legal con-

clusions and affirm the denial of Mr. Jones’ motion to suppress.

The Fourth Amendment protects individuals from unrea-

sonable searches and seizures. See U.S. Const. Amend. IV. “[T]he

ultimate touchstone of the Fourth Amendment is ‘reasonable-

ness.’” Brigham City v. Stuart, 547 U.S. 398, 403 (2006). “Where a

search is undertaken by law enforcement officials to discover evi-

dence of criminal wrongdoing, . . . reasonableness generally re-

quires the obtaining of a judicial warrant.” Vernonia Sch. Dist. 47J v.

Acton, 515 U.S. 646, 653 (1995). “In the absence of a warrant, a

search is reasonable only if it falls within a specific exception to the

warrant requirement.” Riley v. California, 573 U.S. 373, 382 (2014).

One such exception—which the district court held applied here—

is when a warrantless search occurs incident to a lawful arrest. See

id.

We must first determine whether there was a lawful arrest.

Mr. Jones contends that he was not under arrest, and that even if

he was, no probable cause supported the arrest.

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The detention here “was in important respects indistinguish-

able from a traditional arrest.” See Dunaway v. New York, 442 U.S.

200, 212 (1979). The record shows that Mr. Jones was pulled over

and asked to step out of his car, but was not “questioned briefly

where he was found.” See id. Instead, he was put in handcuffs,

placed in the back of a police car, transported to the police station,

and taken to an interrogation room. Sgt. Kelly’s and Agent Perez’s

subjective beliefs that Mr. Jones was not under arrest or that he

went to the police station “voluntarily”—while handcuffed in the

back of a police car—do not control. See id. See also United States v.

Diaz-Lizaraza, 981 F.2d 1216, 1221–22 (11th Cir. 1993) (“The char-

acter of a seizure as arrest or Terry stop depends on the nature and

degree of intrusion, not on whether the officer pronounces the de-

tainee ‘under arrest.’”). Mr. Jones was practically and legally under

arrest when he was handcuffed and taken to the police station in a

police car.

Having determined that Mr. Jones was under arrest, we now

ask whether his arrest was supported by probable cause. Probable

cause exists when “the facts and circumstances within the officer’s

knowledge, of which he or she has reasonably trustworthy infor-

mation, would cause a prudent person to believe, under the cir-

cumstances shown, that the suspect has committed, is committing,

or is about to commit an offense.” Rankin v. Evans, 133 F.3d 1425,

1435 (11th Cir. 1998) (citation omitted). See also District of Columbia

v. Wesby, 583 U.S. 48, 57 (2018) (explaining that probable cause “re-

quires only a probability or substantial chance of criminal activity,

not an actual showing of such activity”) (citation omitted).

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20 Opinion of the Court 19-10332

The magistrate judge—whose report the district court

adopted—identified two bases which established probable cause

for the arrest. The first was that Mr. Jones was driving an unregis-

tered vehicle in violation of Fla. Stat. § 320.02, a second-degree mis-

demeanor punishable by up to 60 days of imprisonment. See State

v. Brooks, 295 So. 3d 348, 350, 352–53 (Fla. 2d DCA 2020) (reversing

the trial court’s suppression of a firearm because the officers seized

it incident to a lawful arrest for driving an unregistered vehicle);

Fla. Stat. § 320.57(1) (making a violation of § 320.02 a second-de-

gree misdemeanor and referencing statutes setting the available

punishments). Second, Mr. Jones was involved in the RICO and

narcotics conspiracies. We agree with the first basis and therefore

do not address the second.

Mr. Jones does not dispute that he could have been arrested

for driving an unregistered vehicle. Indeed, he does not challenge

the validity of the initial stop for that infraction. He instead argues

that he was not arrested for doing so because he was given two

traffic citations. But, as we have explained, Mr. Jones was in fact

under arrest for purposes of the Fourth Amendment when he was

handcuffed, placed in the back of a police car, and taken to the po-

lice station. Nor does it matter under the Fourth Amendment that

the officers could have issued traffic citations rather than execute

an arrest. See Virginia v. Moore, 553 U.S. 164, 176 (2008) (“We con-

clude that warrantless arrests for crimes committed in the presence

of an arresting officer are reasonable under the Constitution, and

that while States are free to regulate such arrests however they de-

sire, state restrictions do not alter the Fourth Amendment’s

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19-10332 Opinion of the Court 21

protections.”). Accordingly, the officers had probable cause to ar-

rest Mr. Jones for driving an unregistered vehicle in violation of

Florida law.

Having confirmed the existence of an arrest supported by

probable cause, we turn to whether the search of Mr. Jones was

incident to a lawful arrest. Simply put, “a police officer who makes

a lawful arrest may conduct a warrantless search of the arrestee’s

person[.]” Davis v. United States, 564 U.S. 229, 232 (2011). This ex-

ception exists in part to prevent the concealment or destruction of

evidence. See United States v. Robinson, 414 U.S. 218, 226 (1973).

And the Supreme Court has permitted the seizure of a cell phone

for that purpose while a warrant is obtained for a search of its con-

tents. See Riley, 573 U.S. at 388.

An officer retrieved Mr. Jones’ cell phone during a pat down

following his detention and arrest. According to Agent Perez, cell

phones hold evidentiary value as the mediums of narcotics trans-

actions because they contain communications with customers and

suppliers and, as relevant here, photographs that are used for social

media posts. Mr. Jones’ cell phone therefore had independent evi-

dentiary value and was properly seized to prevent the concealment

or destruction of evidence it may have contained. See United States

v. Bragg, 44 F.4th 1067, 1071 (8th Cir. 2022) (“Bragg’s iPhone was

seized incident to his lawful arrest. . . . Because a seizure is gener-

ally less intrusive than a search, the Supreme Court ‘has frequently

approved warrantless seizures of property, on the basis of probable

cause, for the time necessary to secure a warrant, where a

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22 Opinion of the Court 19-10332

warrantless search . . . would have been held impermissible.’”)

(quoting Segura v. United States, 468 U.S. 796, 806 (1984)); Andersen

v. DelCore, 79 F.4th 1153, 1166 (10th Cir. 2023) (“So long as an of-

ficer has probable cause that a cell phone contains evidence of a

crime, he may seize the phone without a warrant if a reasonable

officer would conclude that the seizure is necessary to prevent the

destruction of evidence.”). Consequently, the district court did not

err in denying Mr. Jones’ motion to suppress the cellphone and the

evidence associated with it. 6

2. MESSRS. INGRAM AND RODRIGUEZ

We move on to Messrs. Ingram and Rodriguez. They

sought to suppress (1) evidence seized during an initial warrantless

search of a carport connected to their residence and (2) additional

evidence subsequently seized from their residence pursuant to a

search warrant, as fruits of the poisonous tree of the initial warrant-

less search. The district court denied the motions to suppress, rul-

ing that the initial warrantless search and seizure did not violate the

Fourth Amendment and so there was no basis to suppress the fruits

of that initial search.

a. THE CARPORT

6 Mr. Jones also challenges Agent Perez’s delay in obtaining a warrant to search

the phone. Mr. Jones raised this argument below, but the magistrate judge

did not address it in his report. Mr. Jones, in turn, did not object to the mag-

istrate judge’s failure to address this argument and therefore waived the right

to challenge this aspect of the denial of his motion to suppress on appeal. See

11th Cir. R. 3-1.

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19-10332 Opinion of the Court 23

The home and its surrounding curtilage are constitutionally

protected areas, and warrantless searches of them are “presump-

tively” unreasonable. See Brigham City, 547 U.S. at 403. But officers

may “ent[er] upon private land to knock on a citizen’s door for le-

gitimate police purposes unconnected with a search of the prem-

ises.” United States v. Taylor, 458 F.3d 1201, 1204 (11th Cir. 2006).

This so-called knock-and-talk exception is limited in two respects.

First, when an officer’s behavior “objectively reveals a purpose to

conduct a search,” the exception ceases. See United States v. Walker,

799 F.3d 1361, 1363 (11th Cir. 2015). Second, an officer is “geo-

graphically limited to the front door or a ‘minor departure’ from

it.” Id.

Mr. Ingram and Mr. Rodriguez contend that Miami-Dade

Police Detectives Terrence Andre White and Charles Woods ex-

ceeded the scope of the knock-and-talk exception when they ap-

proached the carport. We disagree. 7

The behavior here did not objectively reveal a purpose to

search. Detectives White and Woods went to the residence upon

belief that Mr. Rodriguez, who was wanted for questioning in con-

nection with a homicide, was present there. Upon arriving at the

residence, the Detectives saw Messrs. Ingram and Rodriguez sitting

under the carport. So the Detectives walked through the open gate

7 The government concedes on appeal that the carport was part of the curti-

lage.

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24 Opinion of the Court 19-10332

to talk to them. This conduct fell squarely within the knock-and-

talk exception.

Moreover, approaching the carport did not exceed the geo-

graphic limit of the knock-and-talk exception. As in Walker, the

carport here was open-aired and attached to the side of the home.

See Walker, 799 F.3d at 1363–64 (carport was a “minor departure”

from the front door because it “was located right next to the

house”). And in seeing the two men under the carport, the Detec-

tives could forego the formality of knocking on the front door. See

Florida v. Jardines, 569 U.S. 1, 8 (2013) (recognizing that the knock-

and-talk exception allows an officer to do “no more than any pri-

vate citizen might do”). Accordingly, the Detectives acted within

the scope of the exception.

Additionally, because the Detectives’ presence at the carport

was lawful, the arguments of Messrs. Ingram and Rodriguez con-

cerning evidence seized from the carport fail. That evidence con-

sisted of narcotics and a firearm that Mr. Ingram grabbed from a

table and attempted to conceal. Because those items were in plain

view, they were subject to seizure without a warrant. See United

States v. Smith, 459 F.3d 1276, 1290 (11th Cir. 2006) (“The ‘plain

view’ doctrine permits a warrantless seizure where (1) an officer is

lawfully located in the place from which the seized object could be

plainly viewed and must have a lawful right of access to the object

itself; and (2) the incriminating character of the item is immediately

apparent.”).

b. THE STATEMENTS

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19-10332 Opinion of the Court 25

When Mr. Rodriguez saw Detective Woods approaching

the carport, he attempted to flee and was apprehended by Detec-

tive White. He challenges the voluntary statements he made after

his arrest as obtained in violation of the Fourth Amendment, and

argues that his subsequent waivers of his Miranda rights could not

cure any such violation. See generally Miranda v. Arizona, 384 U.S.

436 (1966). 8

Mr. Rodriguez is correct that Miranda warnings cannot

“alone and per se” break “the causal connection between [any] ille-

gality and” his voluntary statements. See Brown v. Illinois, 422 U.S.

590, 603 (1975). But, as noted above, there was no Fourth Amend-

ment violation by Detectives White and Woods. As a result, Mr.

Rodriguez’s statements were not subject to exclusion as fruits of

the poisonous tree. See United States v. Terzado-Madruga, 897 F.2d

1099, 1113 (11th Cir. 1990).

In sum, we find no error in the district court’s denial of the

motions to suppress filed by Messrs. Ingram and Rodriguez.

C. THE MOTION TO SEVER

Jerimaine Bryant contends that the district court erred in

denying his motion to sever. We disagree. 9

8 Mr. Rodriguez does not independently challenge the sufficiency of the Mi-

randa warnings or his waiver of his rights.

9 Mr. Graham, Mr. Walker, Mr. Glass, Mr. Jones, and Levi Bryant adopted

Jerimaine Bryant’s severance argument. Such an adoption, however, is inap-

propriate. Severance is a fact-specific and defendant-specific inquiry that re-

quires independent briefing. See United States v. Hankton, 51 F.4th 578, 609 n.17

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26 Opinion of the Court 19-10332

We review a district court’s denial of a motion to sever for

abuse of discretion. See United States v. Lopez, 649 F.3d 1222, 1235–

36 (11th Cir. 2011). “The burden of establishing an abuse of discre-

tion” on the issue of severance “rests with [the defendant].” United

States v. De La Torre, 639 F.2d 245, 249 (5th Cir. 1981).

If joinder appears prejudicial, a defendant can move for a

severance. See Fed. R. Crim. P. 14(a). The Supreme Court has ex-

plained that “a district court should grant a severance under Rule

14 only if there is a serious risk that a joint trial would compromise

a specific trial right of one of the defendants, or prevent the jury

from making a reliable judgment about guilt or innocence.” Zafiro

v. United States, 506 U.S. 534, 539 (1993). Considering that guid-

ance, we have set out a general rule that “defendants who are in-

dicted together are usually tried together.” Lopez, 649 F.3d at 1234

(citing United States v. Browne, 505 F.3d 1229, 1268 (11th Cir. 2007)).

The rule applies with some force in conspiracy cases: defendants in

such cases “should be” tried together. See id. (citation omitted).

A defendant seeking severance “must discharge the heavy

burden of demonstrating compelling prejudice from the joinder.”

Browne, 505 F.3d at 1268 (citation and internal quotation marks

omitted). To prove compelling prejudice, a defendant must show

(1) that actual prejudice would result from a joint trial and (2) that

(5th Cir. 2022) (“‘[U]nder Rule 28(i), severance issues are fact-specific’ and thus

cannot be adopted by co-defendants.”) (citation omitted). In any event, we

reject Jerimaine Bryant’s severance argument.

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19-10332 Opinion of the Court 27

severance is the only proper remedy to avoid that prejudice. See

Lopez, 649 F.3d at 1234.

The indictment charged Jerimaine Bryant with both conspir-

acies—the Count 1 RICO conspiracy and the Count 2 narcotics

conspiracy. There was a strong presumption, therefore, in favor of

jointly trying him with the other defendants who were similarly

charged. See id. See also United States v. Smith, 918 F.2d 1501, 1510

(11th Cir. 1990) (“A defendant does not suffer compelling preju-

dice, sufficient to mandate a severance, simply because much of the

evidence at trial is applicable only to co-defendants.”).

Jerimaine Bryant argues that because his conduct was lim-

ited to narcotics possession and distribution, severance was war-

ranted due to prejudicial “spillover” evidence concerning homi-

cides. To remedy that issue, however, the district court instructed

the jury to consider the case of each defendant separately and indi-

vidually. We have explained that such an instruction “significantly

alleviat[es]” the “possible prejudicial effects” of joinder. See Smith,

918 F.2d at 1510. Here that instruction apparently did its job; the

jury acquitted some defendants, such as Levi Bryant and Mr. Jones,

of several charges. By Jerimaine Bryant’s own admission, a jury

instruction like the one given plus a discriminating verdict signals

that the jury followed those instructions and was able to sift

through the evidence without undue influence from any poten-

tially inflammatory spillover. See United States v. Schlei, 122 F.3d

944, 984 (11th Cir. 1997).

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28 Opinion of the Court 19-10332

Moreover, the evidence Jerimaine Bryant complains of was

not spillover evidence. For example, one of the racketeering acts

charged in the RICO conspiracy was the murder of Mr. Johnson.

And the government presented evidence that Jerimaine Bryant was

a senior member of the DSBF who advised Mr. Glass to kill Mr.

Johnson. The district court did not abuse its discretion in denying

the severance motion.

III. JURY SELECTION

At jury selection, the district court denied the defendants’

Batson challenges, finding that the government had legitimate, non-

discriminatory reasons for exercising six of its eight peremptory

strikes on prospective Black jurors. See generally Batson v. Kentucky,

476 U.S. 79 (1986). Levi Bryant contends that the district court’s

rulings were erroneous, but we are not persuaded. 10

A. BATSON

The Supreme Court has established a three-part inquiry for

evaluating a claim that a peremptory strike is racially discrimina-

tory:

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

10 Jerimaine Bryant, Curtis Bryant, Mr. Ingram, and Mr. Walker adopted Levi

Bryant’s Batson arguments.

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19-10332 Opinion of the Court 29

parties’ submissions, the trial court must determine

whether the defendant has shown purposeful dis-

crimination.

Miller-El v. Cockrell, 537 U.S. 322, 328–29 (2003) (citing Batson, 476

U.S. at 96–98). 11

Only step three of that sequence is in dispute here. At step

three, “[i]f a race-neutral explanation is tendered, the trial court

must . . . decide . . . whether the opponent of the strike has proved

purposeful racial discrimination.” Johnson v. California, 545 U.S.

162, 168 (2005) (citation omitted). In other words, “[t]he ultimate

inquiry is whether the [government] was ‘motivated in substantial

part by discriminatory intent.’” Flowers v. Mississippi, 588 U.S. 284,

303 (2019) (citing Foster v. Chatman, 578 U.S. 488, 513 (2016)).

At step three, “the district court’s determination concerning

the actual motivation behind each challenged strike amounts to

pure factfinding, and we will reverse only if the decision is clearly

erroneous.” United States v. Walker, 490 F.3d 1282, 1291 (11th Cir.

2007). The district court’s determination is understandably entitled

to “great weight.” Davis v. Ayala, 576 U.S. 257, 285–86 (2015). And

“[a] finding that is ‘plausible’ in light of the full record—even if an-

other is equally or more so—must govern.” Cooper v. Harris, 581

U.S. 285, 293 (2017) (citation omitted).

11 Batson also applies to discriminatory strikes based on gender, but such strikes

are not at issue here. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 129 (1994).

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30 Opinion of the Court 19-10332

The district court’s perception of an attorney’s credibility

can be critical at step three, and can be measured by, among other

things, “how reasonable, or how improbable, the explanations are;

and by whether the proffered rationale has some basis in accepted

trial strategy.” Miller-El, 537 U.S. at 339. Other relevant factors at

step three include (1) “statistical evidence about the prosecutor’s

use of peremptory strikes against black prospective jurors as com-

pared to white prospective jurors in the case;” (2) “evidence of a

prosecutor’s disparate questioning and investigation of black and

white prospective jurors in the case;” (3) “side-by-side comparisons

of black prospective jurors who were struck and white prospective

jurors who were not struck in the case;” (4) “a prosecutor’s misrep-

resentations of the record when defending the strikes during the

Batson hearing;” and (5) “other relevant circumstances that bear

upon the issue of racial discrimination.” Flowers, 588 U.S. at 302.

B. PROSPECTIVE JURORS 15, 19, 84, AND 103

The government used six of its peremptory strikes on pro-

spective Black jurors. But Levi Bryant challenges as racially moti-

vated only the strikes against Jurors 15, 19, 84, and 103. 12

To establish discriminatory intent, Levi Bryant relies on sta-

tistical evidence, the government’s alleged misrepresentations to

12 During the Batson hearing, defense counsel conceded that the government

appropriately struck Juror 44, a prospective Black juror. The government

struck Juror 85, another prospective Black juror, because he was young, famil-

iar with the South Gwen Cherry area, and self-reported that he was being in-

vestigated by his employer.

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19-10332 Opinion of the Court 31

the district court during the Batson hearing, and comparisons of

prospective Black jurors who were struck to non-Black jurors who

were not struck. We address each type of evidence in turn but ul-

timately consider the evidence cumulatively. See Flowers, 588 U.S.

at 314 (stating that the evidence relevant to the issue of discrimina-

tory intent “cannot be considered in isolation” and a court “must

examine the whole picture”).

1. STATISTICAL EVIDENCE

Looking first at the numbers, the parties narrowed the pool

to 36 prospective jurors, 13 of whom were Black (either African-

American, Jamaican, or Bahamian). After the parties exercised

their peremptory strikes, four members of the 12-person petit jury

were Black. To get there, the government used six of its eight per-

emptory strikes on prospective Black jurors. The government had

additional preemptory strikes that it could have, but did not, use.

The defense, in turn, used three preemptory strikes on prospective

Black jurors. The government attempted to accommodate two

other prospective Black jurors—Jurors 57 and 146—but the district

court struck them for cause.13

On at least two occasions, we have found that a similar pat-

tern of strikes did not indicate discrimination. See United States v.

13 Juror 57 had started a new job and was concerned that she would not be

paid during a lengthy trial. The government proposed having the district

court inform her employer about of the prohibition on discriminating based

on jury duty. Juror 146 had a real estate licensing exam scheduled during the

trial. The government proposed taking a day off on the date of his exam.

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32 Opinion of the Court 19-10332

Dennis, 804 F.2d 1208, 1210–11 (11th Cir. 1986) (no Batson violation

where the jury included two Black jurors and the government used

three of eight peremptory strikes on prospective Black jurors and

an alternate but had four unused challenges); United States v.

Campa, 529 F.3d 980, 998 (11th Cir. 2008) (no Batson violation

where the government chose not to use two of its peremptory

strikes and the jury included three Black jurors and an alternate

Black juror). Under these cases, the statistical evidence here is not

so suggestive of discriminatory strikes so as to render the district

court’s findings clearly erroneous.

2. THE GOVERNMENT’S REASONS

We next examine the race-neutral reasons proffered by the

government. The government took some liberties in describing

some of the prospective Black jurors’ answers, but its descriptions

were not a “series of factually inaccurate explanations” that neces-

sarily signaled discriminatory intent. See Flowers, 588 U.S. at 314.

The district court’s findings that the government’s stated reasons

were race neutral and supported by the record, see D.E. 1201 at 32,

were plausible and therefore not clearly erroneous.

Juror 15. Levi Bryant’s strongest argument concerns Juror

15. As relevant here, Juror 15 was unsure whether she could

properly judge the testimony and credibility of a cooperating wit-

ness, so she left blank the two corresponding questions on the jury

questionnaire. The district court attempted to clarify her position,

but she essentially provided a nonanswer: she “[j]ust didn’t think of

it at the time.” D.E. 1198 at 49–50. Upon further questioning, she

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19-10332 Opinion of the Court 33

said that she was capable of being impartial to cooperating wit-

nesses. The government struck her because it believed that her

failure to answer only those two questions on the questionnaire

indicated that “it was something she just didn’t want to commit

to,” and when she answered the district court’s questions, she did

so “equivocally.” By equivocal, it meant that her answers were

“‘maybe, I don’t know, I guess I could,’ they were not clear, unam-

biguous answers of 100% yes. . . . It was not patently clear for us

that these cooperating witnesses . . . would not be a potential prob-

lem for her.” D.E. 1201 at 9–10.

Juror 15 did not say exactly what the government claimed.

But as to her initial answers, it was not “patently clear” what her

position was on cooperating witnesses—it took the district court

several attempts to clarify her position. So, although the govern-

ment’s explanation to the district court was not entirely accurate,

“mistaken explanations should not be confused with racial discrim-

ination.” Flowers, 588 U.S. at 314. The government was free to

conclude that Juror 15’s initial reticence to answer the two ques-

tions reflected her true feelings and that, in turn, that she merited

a peremptory strike. Cf. Harper v. Lumpkin, 64 F.4th 684, 696–97

(5th Cir. 2023) (rejecting a defendant’s Batson argument that a pro-

spective juror was “not being untruthful or deceptive by failing to

respond to one of the items on the questionnaire”: “[T]his argu-

ment does nothing to demonstrate that the prosecutor’s stated rea-

son was pretextual. Both things can be true: [the juror] could have

been fully truthful and forthcoming, and the prosecutor could have

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34 Opinion of the Court 19-10332

been concerned that she failed to respond to one of the most im-

portant items on the questionnaire.”).

The government also struck Juror 15 due to her exposure to

the criminal justice system. She had a nephew who had been ar-

rested or convicted and she failed to clarify whether she believed

he had been treated fairly.

At the end of the day, the district court’s finding as to Juror

15—that the government exercised a race-neutral strike—was not

clearly erroneous, even when taking into account the statistical ev-

idence.

Juror 103. As to Juror 103, Levi Bryant claims that an admit-

ted misstatement by the government—that Juror 103 (rather than

her husband) was on hemodialysis—was an attempt to misrepre-

sent the record. But the district court did not clearly err in viewing

the government’s misstatement as just a mistake.

The bottom line is that Juror 103 was the primary caretaker

for her son, who is disabled, and for her husband, who was on he-

modialysis awaiting a kidney transplant. In the government’s view,

this was “an unpredictable family health situation that would have

been a disruption for the trial.” D.E. 1201 at 25. The district court

plausibly found that the government’s strike of Juror 103 was race-

neutral, even when the statistical evidence is considered.

Juror 84. Levi Bryant next argues that the government

made material misrepresentations with respect to Juror 84. He

challenges the government’s proffer of a quote from Juror 84 that

she “didn’t trust the system.” L. Bryant Br. at 31. It is true that

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19-10332 Opinion of the Court 35

Juror 84 did not utter those exact words. But in commenting on

her son’s reckless driving charge, she stated that it “took a lot out

of our lives,” and she believed that the charges were excessive and

likely financially motivated. See D.E. 1198 at 122–23. Those com-

ments—particularly her belief that the severity of her son’s charges

was “a money making thing”—could fairly be characterized as a

distrust of the system. See id. The district court’s finding that the

government’s strike of Juror 84 was not racially motivated, even

considered in light of the statistical evidence, was plausible and

therefore not clearly erroneous.

In addition, Levi Bryant challenges the government’s claim

that Juror 84 had an “inability to judge [a] cooperating witness.” L.

Bryant Br. at 31 (quoting D.E. 1201 at 12). This too was not a ma-

terial misrepresentation. Juror 84 believed that it was improper for

cooperating witnesses to receive lesser sentences and did not know

if she could trust their testimony. She would not automatically dis-

credit such testimony, but the fact that a witness cooperated

“might influence [her] decision.” D.E. 1198 at 124. Her perspective

clearly evinced some possible doubt about cooperating witnesses.

Though her statements would not have merited being removed for

cause, the district court was entitled to find that the government

was justified in striking her. See United States v. Hill, 31 F.4th 1076,

1082 (8th Cir. 2022) (explaining that a prospective juror’s inability

to consider the testimony of a cooperating witness constitutes a

“race-neutral reason” for a peremptory strike); United States v.

Thomas, 315 F. App’x 828, 834 (11th Cir. 2009) (concern that pro-

spective jurors “might question the veracity of a cooperating co-

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36 Opinion of the Court 19-10332

defendant’s testimony” constituted a race-neutral reason for use of

peremptory strikes). 14

3. COMPARATOR EVIDENCE

As the final piece of his Batson claim, Levi Bryant attempts

to infer discriminatory intent by comparison.

Starting with the government’s peremptory strike of Juror

19, Levi Bryant’s argument is unpersuasive. The government

struck Juror 19 because she had served on a hung jury, raising con-

cerns of her indecisiveness. This was a race-neutral reason. See

United States v. Hernandez-Garcia, 44 F.4th 1157, 1167 (9th Cir. 2022)

(“Ms. Del Rosario’s prior service on a hung jury was a legitimate

reason [for the use of a peremptory strike.]”); United States v. Rudas,

905 F.2d 38, 41 (2d Cir. 1990) (“Aponte’s service on a hung jury was

a legitimate reason for striking him.”).

Levi Bryant counters that this reason was pretextual because

the government did not strike two prospective non-Black jurors

who also had prior jury service. But those two comparators served

on juries which returned verdicts. Juror 19 was struck not because

she served on a jury, but because of her jury’s inability to reach a

verdict. The comparison therefore misses the mark.

As another point of comparison, Levi Bryant identifies two

prospective non-Black jurors who, like Juror 19, had negative

14 Thomas is an unpublished decision, but we find it persuasive on this point.

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19-10332 Opinion of the Court 37

experiences with the legal system but whom the government did

not strike. Those jurors, however, also did not sit on hung juries.

In sum, none of the prospective non-Black jurors identified

by Levi Bryant shared the totality of Juror 19’s circumstances. He

therefore cannot show, by way of comparison, that the district

court clearly erred in finding that government’s use of a peremp-

tory strike on Juror 19 was race-neutral. See United States v. Stewart,

65 F.3d 918, 926 (11th Cir. 1995) (“We recognize that failing to

strike a white juror who shares some traits with a black juror does

not itself automatically prove the existence of discrimination.”).

4. FAMILIARITY WITH SOUTH GWEN CHERRY

Finally, Levi Bryant argues that the government’s consider-

ation of any prospective juror’s familiarity with the South Gwen

Cherry complex was inherently discriminatory towards prospec-

tive Black jurors because it is located in a predominantly Black

neighborhood. But “[a]n argument relating to the impact of a clas-

sification does not alone show its purpose.” Hernandez v. New York,

500 U.S. 352, 362 (1991).

Familiarity with the South Gwen Cherry complex was just

one factor considered by the government, as it did not seek to ex-

clude any prospective Black juror solely on that basis. And a juror’s

familiarity with—and thus potential bias for or against—the partic-

ular geographic setting of a case (and the defendants who hail from

that area) can be a legitimate reason for the use of a peremptory

strike. See Hollingsworth v. Burton, 30 F.3d 109, 113 (11th Cir. 1994)

(“Studmire’s close connection to the area in which the crime was

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38 Opinion of the Court 19-10332

committed is highly relevant. Living and carpooling in the area cre-

ated both an increased risk of familiarity with the scene of the crime

and a heightened likelihood of being subjected to conversations re-

lating to the crime.”).

The district court found that a “small town familiarity with

a particular area is racially neutral.” D.E. 1201 at 18. Without de-

finitive evidence that the government adopted this criterion with

the intent of excluding Black jurors, the district court did not clearly

err in finding that any disparate impact “[did] not violate the prin-

ciple of race neutrality.” Hernandez, 500 U.S. at 362. See also Flow-

ers, 588 U.S. at 302–03. The district court could have viewed the

record differently, but it was not compelled to do so.

5. SUMMARY

The individual components of Levi Bryant’s Batson claim fall

short. Taken collectively, they also do not show that the district

court clearly erred in finding that the government was not “moti-

vated in substantial part by discriminatory intent” in striking Jurors

15, 19, 84, and 103. See Flowers, 588 U.S. at 303.

IV. THE EVIDENTIARY RULINGS AT TRIAL

The defendants challenge a number of evidentiary rulings

by the district court. Where an objection was properly preserved,

we generally review such rulings for an abuse of discretion. See Fid.

Interior Constr., Inc. v. S.E. Carpenters Reg’l Council, 675 F.3d 1250,

1258 (11th Cir. 2012). This standard “recognizes the range of pos-

sible conclusions the [district court] may reach.” United States v.

Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (en banc).

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19-10332 Opinion of the Court 39

We will not disturb an evidentiary ruling unless there is a

“clear error of judgment.” In re Rasbury, 24 F.3d 159, 168 (11th Cir.

1994). Of course, the district court also “abuse[s] its discretion if it

base[s] its ruling on an erroneous view of the law or on a clearly

erroneous assessment of the evidence.” Cooter & Gell v. Hartmarx

Corp., 496 U.S. 384, 405 (1990). “So [if] we conclude that the district

court erred, we mean to say that the district court abused its dis-

cretion in one of these ways.” Carrizosa v. Chiquita Brands Int’l, Inc.,

47 F.4th 1278, 1296 (11th Cir. 2022).

A. RULE 801(d)(2)(E)

Our first look at the evidentiary rulings starts with Mr. Ro-

driguez, whom the district court treated as a member of the two

charged conspiracies. He claims that this was error, and that as a

result the district court improperly admitted against him the state-

ments of purported co-conspirators. See Fed. R. Evid. 801(d)(2)(E).

The statements at issue were made by Messrs. Walker and Gra-

ham, and also include those statements contained in Summary Ex-

hibit 303, which was a compilation of thousands of social media

posts by the purported co-conspirators.

Mr. Rodriguez sought to exclude the statements through a

motion in limine. The district court denied the motion without

prejudice and advised Mr. Rodriguez to reassert the objection at

trial should the government seek to introduce the co-conspirators’

statements. There is no indication in the record, however, that Mr.

Rodriguez argued inadmissibility under Rule 801(d)(2)(E) at trial,

and he does not cite to any such objection. Mr. Rodriguez thus

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40 Opinion of the Court 19-10332

failed to preserve the issue, which means that our review is for

plain error. See Fed. R. Evid. 103(b) (“Once the court rules defini-

tively on the record—either before or at trial—a party need not re-

new an objection or offer of proof to preserve a claim of error for

appeal.”) (emphasis added); United States v. Feldman, 936 F.3d 1288,

1300 (11th Cir. 2019) (“Because the magistrate judge did not make

a definitive ruling on the extrapolation issue, Mrs. Feldman was re-

quired to object to Dr. Chaitoff’s statement to avoid plain error re-

view.”). Accord United States v. Broussard, 87 F.4th 376, 379 (8th Cir.

2023) (explaining that a denial of motion in limine accompanied by

an invitation to reassert the objection at trial is not a “definitive”

ruling that preserves an issue for appeal). 15

We find no plain error in the district court’s admission of the

co-conspirators’ statements against Mr. Rodriguez. “For a co-con-

spirator statement to be admissible under [Rule 801(d)(2)(E)], the

government must show by a preponderance of the evidence that:

(1) a conspiracy existed; (2) the defendant and the declarant were

members of the conspiracy; and (3) the statement was made during

the course and in furtherance of the conspiracy.” United States v.

Hough, 803 F.3d 1181, 1193 (11th Cir. 2015). Contrary to Mr.

15 Mr. Ingram, in the table of contents and summary of the arguments of his

brief, also appears to argue that the district court erred in admitting the hear-

say statements of purported co-conspirators. But he does not cite any author-

ity in support of this point. Nor does he devote a discrete section of his argu-

ment to this contention. His failure to adequately brief the issue constitutes

abandonment. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th

Cir. 2014).

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19-10332 Opinion of the Court 41

Rodriguez’s contention, Rule 801(d)(2)(E) does not require “sub-

stantial independent evidence” of a conspiracy. See M. Rodriguez

Br. at 44. When preliminary facts relevant to determining the ad-

missibility of evidence—such as co-conspirator statements—are

disputed, the relevant standard of proof is a preponderance of the

evidence. See Bourjaily v. United States, 483 U.S. 171, 175 (1987). A

preponderance of the evidence “simply requires the trier of fact to

believe that the existence of a fact is more probable than its nonex-

istence.” United States v. Watkins, 10 F.4th 1179, 1184 (11th Cir.

2021) (citation omitted).

The testimony of Mr. Grimes, a former short-lived DSBF

member and unindicted co-conspirator, was enough to establish

Mr. Rodriguez’s participation in the RICO and narcotics conspira-

cies by a preponderance of the evidence. Mr. Grimes testified that,

when he became a member of the DSBF around 2010, Mr. Rodri-

guez was one of the first people he met in the gang. Mr. Rodriguez

was introduced to him as “Blood”—an awfully suspicious nick-

name considering the gang was called the Dub Street Blood Fam-

ily. During his relatively short tenure with the DSBF, Mr. Grimes

frequently hung out with Mr. Rodriguez, including at the latter’s

home. He knew Mr. Rodriguez as the point man for all gang rules

violations and initiations, and as someone who occasionally sup-

plied the gang (and himself) with guns. Mr. Rodriguez also sold

crack cocaine. He had his own clientele, but would step in when

the DSBF ran out of inventory. As Mr. Grimes testified, if Mr. Ro-

driguez had not been a DSBF member, the gang would not have

tolerated him selling drugs at the South Gwen Cherry complex.

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42 Opinion of the Court 19-10332

Had Mr. Rodriguez challenged at trial the admission of co-

conspirator statements against him, Mr. Grimes’ testimony would

have satisfied the district court under Bourjaily. See, e.g., United

States v. Amede, 977 F.3d 1086, 1094–95, 1098 (11th Cir. 2020). Ac-

cordingly, Mr. Rodriguez’s unpreserved, non-specific challenge to

the Rule 801(d)(2)(E) evidence fails. The district court did not

plainly err.

B. RULE 804(b)(3)

Levi Bryant argues that the district court should not have

admitted Jerimaine Bryant’s social media post (which implicated

Levi) under the hearsay exception for statements against interest.

See Fed. R. Evid. 804(b)(3). We are not persuaded.

Rule 804(b)(3) permits the admission of an out-of-court

statement when (1) it is against the penal interest of the declarant,

(2) corroborating circumstances exist indicating the trustworthi-

ness of the statement, and (3) the declarant is unavailable. See

United States v. Harrell, 788 F.2d 1524, 1526 (11th Cir. 1986). The

statement must be one that “a reasonable person in the declarant’s

position would have made only if the person believed it to be true

because, when made, it . . . had so great a tendency . . . to expose

the declarant to civil or criminal liability.” Fed. R. Evid.

804(b)(3)(A). 16

As we have explained, Rule 804(b)(3) encompasses more

than “direct confessions of guilt,” and includes “remarks that a

16 Levi Bryant concedes that Jerimaine Bryant was unavailable as a witness.

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19-10332 Opinion of the Court 43

reasonable person would have realized strongly implied [the de-

clarant’s] personal participation in the relevant crime . . . [and] dis-

serving statements by a declarant that would have probative value

in a trial against the declarant.” Chiquita, 47 F.4th at 1308 (citation

and internal quotation marks omitted). Whether a “statement is

self-inculpatory or not can only be determined by viewing it in con-

text [and] . . . in light of all the surrounding circumstances.” Wil-

liamson v. United States, 512 U.S. 594, 603–04 (1994). And whether

a statement is genuinely against a declarant’s penal interest is a

question of law we review de novo. See United States v. Costa, 31 F.3d

1073, 1077 (11th Cir. 1994).

Levi Bryant is the uncle of Jerimaine Bryant, who refers to

Levi as “Fish.” On Facebook, Jerimaine posted the following: “My

uncle fish gave me the game, my Aunte Danielle showed me the

way, and ma n****s got me this far.” Anticipating that the govern-

ment would use this statement to suggest that he taught Jerimaine

the “drug game,” Levi moved to exclude the statement as inadmis-

sible hearsay. See D.E. 1202 at 103. In response, the government

argued that the post was a statement against Jerimaine’s interest—

“that he’s been taught a drug game” by Levi. See id. at 104.

The district court admitted the Facebook post, concluding

that Jerimaine was “admitting complicity.” Id. Though the depth

of this analysis may not have been to Levi’s liking, the district court

considered the parties’ arguments and made a ruling on a matter

of law, that is, whether the statement was against Jerimaine’s penal

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44 Opinion of the Court 19-10332

interest. See Costa, 31 F.3d at 1077. Under the circumstances, no

exhaustive factual explanation was necessary. 17

The focus of our inquiry is on whether the statement “when

made . . . had so great a tendency to . . . expose the declarant to . .

. criminal liability” that a reasonable person in his position would

not have made the statement unless he believed it was true. See

Fed. R. Evid. 804(b)(3)(A). We have described this as an “expansive

test.” United States v. Alvarez, 584 F.2d 694, 700 (5th Cir. 1978).

It is true that there is nothing facially self-inculpatory about

Jerimaine’s Facebook post. According to the post, Levi “gave” him

“the game,” but we do not know from the post itself what that

means. As defense counsel argued in closing, “the game” could

refer to an activity like gambling. See D.E. 1229 at 201–02. See also

The American Heritage Dictionary of the English Language 720

(5th ed. 2011) (defining “game”).

But a “facially neutral statement[ ] might actually be against

a declarant’s interest.” United States v. Thomas, 62 F.3d 1332, 1337

(11th Cir. 1995) (citing Williamson, 512 U.S. at 603). And a state-

ment’s context elucidates its meaning. See, e.g., United States v.

Hammers, 942 F.3d 1001, 1010–11 (10th Cir. 2019) (the “context and

the circumstances” under which statement was made include the

declarant’s state of mind and other statements and actions

17 During her testimony, Sgt. Kelly did exactly what Levi had predicted. She

testified that “the game” likely meant “narcotics sales.” D.E. 1203 at 71–72.

And in its closing argument, the government argued that “[t]he game is

drugs.” D.E. 1231 at 47.

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19-10332 Opinion of the Court 45

accompanying the statement); United States v. Awer, 770 F.3d 83, 94

(1st Cir. 2014) (analyzing a purportedly self-inculpatory statement

in the context in which it was made, rather than in conjunction

with other similar statements made by the defendant); United States

v. Gupta, 747 F.3d 111, 128–29 (2d Cir. 2014) (looking to the declar-

ant’s conduct when the statement was made). We turn, therefore,

to context.

The first important piece of context is that Levi was a known

drug dealer by the time of Jerimaine’s Facebook post in 2015. Be-

tween 2006 and 2012, Levi was arrested four times for selling drugs,

and two of those arrests resulted in convictions. And Mr. Coakley

identified Levi as being one of the DSBF’s earliest members, selling

drugs as early as 2001. The post therefore had a tendency to impli-

cate Jerimaine (the declarant) in Levi’s narcotics activities and the

drug business. See Williamson, 512 U.S. at 603–04 (“‘Sam and I went

to Joe’s house’ might be against the declarant’s interest if a reason-

able person in the declarant’s shoes would realize that being linked

to Joe and Sam would implicate the declarant in Joe and Sam’s con-

spiracy.”). Moreover, Ms. Houser and Mr. Coakley identified

Jerimaine as a crack cocaine supplier for the DSBF. So both Levi

and Jerimaine were involved in the narcotics trade at the time of

Jerimaine’s Facebook post. A reasonable person in Jerimaine’s po-

sition would have made the statement only if he believed it to be

true because it had a tendency to expose him to criminal liability.

This is not one of those instances in which a declarant’s im-

plication of a co-defendant is suspect because it might be an

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46 Opinion of the Court 19-10332

attempt to shift blame or curry favor—the statement here does not

accomplish those ends. See Williamson, 512 U.S. at 603–04; Costa,

31 F.3d at 1078. Given that Levi was a known drug dealer and a

member of the DSBF, and that Jerimaine was known to supply

drugs to the DSBF, the district court did not err in concluding that

“the game” was drug dealing.

Jerimaine’s statement in the Facebook post was also sup-

ported by corroborating circumstances that clearly indicated its

trustworthiness. There was plenty of evidence implicating

Jerimaine in the drug conspiracy. And there is no obvious reason

why he would have fabricated his business relationship with Levi.

See United States v. U.S. Infrastructure, Inc., 576 F.3d 1195, 1209 (11th

Cir. 2009).

We therefore conclude that Jerimaine’s Facebook post was

properly admitted against Levi under Rule 804(b)(3). 18

C. RULE 801(d)(1)(B)

Mr. Graham argues that the district court erred in allowing

the government to introduce, as a prior consistent statement,

18 We reject the argument made by Levi that admitting Jerimaine’s Facebook

post violated his rights under the Confrontation Clause of the Sixth Amend-

ment. See generally Crawford v. Washington, 541 U.S. 36, 51 (2004). Simply put,

Jerimaine could not have reasonably anticipated that a social media post, made

years before his arrest, would be used in court. The statement is therefore

nontestimonial and the Confrontation Clause does not apply. See United States

v. Hano, 922 F.3d 1272, 1287 (11th Cir. 2019) (explaining that “the threshold

question in every case” raising a confrontation issue “is whether the chal-

lenged statement is testimonial”) (citation omitted).

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19-10332 Opinion of the Court 47

portions of an audio recording in which Donzell Jones, a cooperat-

ing witness, implicated Mr. Graham in a robbery. We disagree.

Under Rule 801(d)(1)(B), a prior consistent statement by a

witness is not hearsay if (1) the declarant testifies and is subject to

cross-examination on the statement; and (2) the statement is con-

sistent with the declarant’s testimony and is offered “to rebut an

express or implied charge that the declarant recently fabricated it

or acted from a recent improper influence or motive in so testify-

ing.” A district court may exclude those parts of a prior consistent

statement that do not relate specifically to matters on which the

declarant was impeached, but “it is not required to do so.” United

v. Brantley, 733 F.2d 1429, 1438 (11th Cir. 1984). “A district court is

granted broad discretion in determining the admissibility of a prior

consistent statement under Fed. R. Evid. 801(d)(1)(B) and will not

be reversed absent a clear showing of abuse of discretion.” United

States v. Prieto, 232 F.3d 816, 819 (11th Cir. 2000).

When cross-examining Donzell Jones, defense counsel im-

peached him using an audio recording of his interrogation by two

agents. On redirect, the government played other portions of that

recording to rehabilitate him. Some portions of the interrogation

played by the government apparently implicated Mr. Graham in a

robbery. See D.E. 1114 at 51–56 (“[The government is] presenting

evidence against Reginald Graham now by saying that [they] did

robberies together.”).

The record, however, is silent as to what the recording actu-

ally says. See, e.g., id. at 50 (“Audio playing.”). And because it was

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48 Opinion of the Court 19-10332

impeachment evidence, neither party entered Donzell Jones’ inter-

rogation transcript into evidence. Mr. Graham, moreover, did not

provide us with a copy on appeal. See Fed. R. App. P. 10(b)(2) (“If

the appellant intends to urge on appeal that a finding or conclusion

is unsupported by the evidence or is contrary to the evidence, the

appellant must include in the record a transcript of all evidence rel-

evant to that finding or conclusion.”); Selman v. Cobb Cnty. Sch.

Dist., 449 F.3d 1320, 1333 (11th Cir. 2006) (“[T]he burden is on the

appellant to ensure the record on appeal is complete, and where a

failure to discharge that burden prevents us from reviewing the dis-

trict court’s decision we ordinarily will affirm the judgment.”).

Given the incomplete record before us, our review of this issue is

constrained.

There is no dispute that the recording satisfied the first re-

quirement of Rule 801(d)(1)(B). Defense counsel used a portion of

it during Donzell Jones’ cross-examination. As to whether the gov-

ernment properly offered it to rebut defense counsel’s express or

implied charge that Donzell Jones was not credible and/or had an

improper motive in testifying as a cooperating witness, Mr. Gra-

ham argues that Rule 801(d)(1)(B) limits the scope of rehabilitation

to the precise issues on which defense counsel impeached Donzell

Jones. This broad legal assertion, however, is contrary to our prec-

edent. See Brantley, 733 F.2d at 1438. The scope of the govern-

ment’s use of the recording was within the discretion of the district

court, and we are reticent to disturb its decision given the limited

record before us.

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19-10332 Opinion of the Court 49

In any event, the record indicates that the government did

not exceed the scope of the impeachment of Donzell Jones. De-

fense counsel cross-examined him on his prior statements, includ-

ing purported lies about his involvement with a group of individu-

als which included several alleged DSBF members, his knowledge

of certain gang members, and his knowledge of robberies that gang

members had participated in. See D.E. 1113 at 17–20; D.E. 1114 at

21–24. On redirect examination, the government offered as a prior

consistent statement another segment of the recording where

Donzell Jones apparently admitted to knowing of the gang’s rob-

beries. This was an express rebuttal of defense counsel’s cross ex-

amination and, as far as we can tell, fell directly within the purview

of Rule 801(d)(1)(B). Accordingly, we conclude that the district

court did not abuse its discretion in allowing the government to

rehabilitate Donzell Jones with his prior consistent statements.

D. LIMITS ON THE CROSS-EXAMINATION OF AGENT PEREZ

Mr. Walker argues that the district court denied him his

Sixth Amendment right to confront witnesses by improperly limit-

ing his cross-examination of Agent Perez. This argument lacks

merit.

A district court generally has discretion to limit the scope of

cross-examination, subject of course to the requirements of the

Sixth Amendment. See United States v. Garcia, 13 F.3d 1464, 1468

(11th Cir. 1994). The Sixth Amendment confers on a defendant the

right to cross-examine a witness to expose motivation and bias, but

the right is not unlimited. See Delaware v. Van Arsdall, 475 U.S. 673,

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50 Opinion of the Court 19-10332

678–79 (1986). It “guarantees an opportunity for effective cross-ex-

amination, not cross-examination that is effective in whatever way,

and to whatever extent, the defense might wish.” Delaware v. Fen-

sterer, 474 U.S. 15, 20 (1985) (per curiam). Accordingly, once a party

has had that opportunity, further questioning is generally within

the district court’s discretion. See Garcia, 13 F.3d at 1468. The ques-

tion is “whether a reasonable jury would have received a signifi-

cantly different impression of the witness’ credibility had counsel

pursued the proposed line of cross-examination.” Id. at 1469.

Mr. Walker contends that the district court should not have

precluded him from further cross-examining Agent Perez about a

undercover narcotics buy on May 3, 2017. According to Mr.

Walker, this buy was a last-ditch effort by the authorities to obtain

direct evidence of him selling crack cocaine mere days before the

indictment was returned.

The problem for Mr. Walker is that Agent Perez did not tes-

tify on direct examination about the buy on May 3, 2017. In fact,

he explained—both on direct and cross-examination—that he par-

ticipated as part of the surveillance team for undercover narcotics

buys in the South Gwen Cherry complex only in 2016. See, e.g.,

D.E. 1222 at 160 (Agent Perez: “The May 3rd [drug buy] I was not

involved in it.” Defense Counsel: “All right. [W]ere you involved

in any of Detective Quintero’s attempts to purchase narcotics?”

Agent Perez: “The ones in 2016, yes.”). The district court therefore

did not abuse its discretion or violate Mr. Walker’s Sixth

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19-10332 Opinion of the Court 51

Amendment rights by limiting Mr. Walker’s cross-examination of

Agent Perez on a matter in which he was not involved.

In any event, Mr. Walker did ask Agent Perez some ques-

tions about the May 3, 2017, buy and the indictment, and his gen-

eral authority over the timing of the controlled buys. He even at-

tempted, among other things, to undermine the circumstantial ev-

idence of his participation in drug sales by questioning Agent Perez

on the slang terms in certain Facebook posts. Accordingly, Mr.

Walker had ample opportunity to—and did—thoroughly cross-ex-

amine Agent Perez, such that additional questioning on the buy on

May 3, 2017, would not have impacted the latter’s credibility.

The district court did not abuse its discretion, and did not

violate Mr. Walker’s Sixth Amendment rights, in limiting the cross-

examination of Agent Perez.

E. RULE 801(d)(2)(B)

Curtis Bryant argues that the district court erred in admit-

ting his “giggle and smirk” reaction to a co-conspirator’s statement

as an adoptive admission of his participation in a murder under

Rule 801(d)(2)(B). The issue is close, but the abuse of discretion

standard calls for rejection of the argument.

Mr. Coakley, a cooperating and unindicted co-conspirator,

testified that after the shooting of Mr. Hallman, a rival gang mem-

ber, Jerimaine Bryant announced that “momma got his feet wet.”

According to Mr. Coakley, “Momma” referred to “Big Momma,”

Jerimaine’s nickname for his brother Curtis Bryant, and “got his

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52 Opinion of the Court 19-10332

feet wet” meant “you shot somebody.” In response to Jerimaine’s

statement, Curtis Bryant started “giggling.”

When a statement is offered as an adoptive admission under

Rule 801(d)(2)(B), the district court generally must determine as a

preliminary matter whether (1) “the statement was such that, un-

der the circumstances, an innocent defendant would normally be

induced to respond,” and (2) “there are sufficient foundational facts

from which the jury could infer that the defendant heard, under-

stood, and acquiesced in the statement.” United States v. Carter, 760

F.2d 1568, 1579 (11th Cir. 1985). We review a district court’s rul-

ings under Rule 801(d)(2)(B) for abuse of discretion. See United

States v. Joshi, 896 F.2d 1303, 1312 (11th Cir. 1990).

We have affirmed the admission of non-verbal reactions like

silence and a head-nod as adoptive admissions. See Carter, 760 F.2d

at 1579–80, 1580 n.5 (the defendants’ silence in the back seat of a

vehicle while the front seat passenger made incriminating state-

ments about their drug smuggling activities); Joshi, 896 F.2d at

1311–12 (the defendant’s head nod in response to a statement in-

troducing him and describing his role in a narcotics conspiracy).

We discern no abuse of discretion in the district court’s decision to

admit Jerimaine Bryant’s giggle.

The first criterion for admission under Rule 801(d)(2)(B) is

particularly important when dealing with adoptive admissions by

silence. See United States v. Santos, 947 F.3d 711, 724 (11th Cir.

2020). But if the defendant affirmatively responded to the state-

ment—like by nodding, see Joshi, 896 F.2d at 1311–11, or by

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19-10332 Opinion of the Court 53

giggling, as is the case here—the “focus is on the second criterion.”

Santos, 947 F.3d at 724.

Under the second criterion, we conclude there is sufficient

evidence in the record from which the jury could infer that Curtis

heard and acquiesced in Jerimaine’s statement. Mr. Coakley testi-

fied that Jerimaine told him—in the presence of Curtis—that

“momma got his feet wet.” He also explained that “momma” re-

ferred to Curtis and getting “his feet wet” meaning shooting some-

one. Curtis giggled in response. Laughter, as an affirmative act,

can be stronger evidence of adoption than silence. See Carter, 760

F.2d at 1579–80. Given the stark contrast between the gravity of

the misconduct—a murder—and the tenor of the response, the gig-

gling here was at least as strong as, if not stronger than, the assent

of a head nod. See Joshi, 896 F.2d at 1311–12. 19

Concerning comprehension, Curtis points out that there is

no direct evidence that he necessarily shared Mr. Coakley’s under-

standing of Jerimaine’s statement. To attempt to reconstruct that

understanding, we break down the statement into two constituent

19

In response to Curtis’ hearsay objection at trial, the district court explained

that the second criterion for admission under Rule 801(d)(2)(B) is “really an

issue for the jury.” That was only half right. It is true that the “ultimate

determination of foundational prerequisites for adoptive admissions is for

[the] jury.” Joshi, 896 F.2d at 1312. But as an initial matter the district court

must make a preliminary finding that the “jury could reasonably find that the

defendant comprehended and acquiesced in the statement.” Id. Doing other-

wise “needlessly risks the possibility of reversal if the evidence is subsequently

found to have been erroneously admitted.” Id.

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54 Opinion of the Court 19-10332

parts: (1) the identity of “momma” and (2) the action of getting

one’s “feet wet.” As to the former, Curtis would have known his

brother’s nickname for him, and he does not dispute this fact. As

to the latter, Curtis is correct that we only know for certain how

Mr. Coakley understood the statement. But we are reviewing for

abuse of discretion, and admissibility does not require absolute cer-

tainty. Given his reaction, the district court could find that Curtis

understood a slang term used by a family member. Any ambiguity

in the statement went to weight, not admissibility. And defense

counsel had the opportunity to expose any ambiguity in Mr. Coak-

ley’s cross-examination.

This issue presents a close question, but given our precedent

and the discretion afforded a district court on evidentiary matters,

affirmance is in order. See Frazier, 387 F.3d at 1259 (the abuse of

discretion standard “recognizes the range of possible conclusions

the [district court] may reach”). The district court did not abuse its

discretion in admitting Curtis’ giggle in response to Jerimaine’s

statement as an adoptive admission under Rule 801(d)(2)(B).

F. OTHER ACTS EVIDENCE

Messrs. Hayes and Ingram challenge the admission of cer-

tain “other acts” evidence under Rules 404(b) and 403. Their pre-

trial motion to exclude this evidence below was struck as untimely.

At trial, the district court denied Mr. Hayes’ objection on the merits

because “[t]he subject activity [was] evidence of the racketeering

activity.” D.E. 1201 at 29–30.

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19-10332 Opinion of the Court 55

The problem for Messrs. Hayes and Ingram is that they have

failed to properly and sufficiently brief this issue on appeal. Before

trial, the government notified the defendants that it intended to in-

troduce numerous “other acts” against them—at least nine against

Mr. Hayes and eight against Mr. Ingram. See D.E. 444. But on ap-

peal, Messrs. Hayes and Ingram do not tell us with sufficient speci-

ficity what “other acts” were actually and improperly introduced

against them at trial; for what purpose those “other acts” were pre-

sented; and when during the trial those “other acts” were intro-

duced. Mr. Hayes tells us only that the “other acts” introduced

against him were acts of “mugging, auto theft, fleeing and eluding,

possession of firearms, etc.” S. Hayes Br. at 40 (emphasis added).

He argues that those acts were too far removed in time from the

Hobbs Act robberies to be probative of intent. Mr. Ingram is even

less helpful. He simply tells us that the district court erred in ad-

mitting his “co-appellants’ prior arrests” and an arrest or conviction

of his (we don’t really know which) for “possession with intent to

sell controlled substance.” T. Ingram Br. at 55, 57. 20

To properly present an issue on appeal—especially one aris-

ing from a multi-defendant trial lasting almost 40 days—it was in-

cumbent on Messrs. Hayes and Ingram to identify exactly the evi-

dence they now challenge. See Sapuppo, 739 F.3d at 681. We

20 Mr. Hayes describes the “other acts” evidence with more specificity in his

reply brief, but that comes too late. See United States v. Levy, 379 F.3d 1241,

1242–43 (11th Cir. 2004).

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56 Opinion of the Court 19-10332

decline to sift through a transcript of nearly 8,000 pages to figure

out and resolve their arguments.

G. RULE 615(a)

Jerimaine Bryant and Mr. Glass argue that the district court

erred by excluding the testimony of a defense witness for violating

the rule of sequestration. See Fed. R. Evid. 615 (2018). We agree

that the district court erred.

1. MS. BRYANT

The witness at issue was Tracy Bryant, the sister of

Jerimaine, Quincy, and Curtis Bryant and a relative of several other

defendants. She also happened to be the former girlfriend of a gov-

ernment witness, Mr. Coakley, with whom she has five children.

At the start of the trial, defense counsel invoked the rule of

sequestration. And following an evidentiary hearing, the district

court excluded the proffered testimony of Ms. Bryant for her vio-

lation of the rule.

Outside of the jury’s presence, Ms. Bryant explained that,

prior to trial, the defense did not ask her to testify and she appar-

ently had no interest in doing so. She did, however, want to ob-

serve the trial. She showed up for voir dire but was placed in an

overflow courtroom with a malfunctioning closed-circuit televi-

sion, got bored, and left. She returned a second time, sat through

some of Sgt. Kelly’s testimony, again got bored, and left. As rele-

vant here, she heard no testimony about Mr. Johnson or his mur-

der. But afterwards she received a call from a friend who told her

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that Mr. Coakley had testified that Mr. Glass murdered Mr. John-

son. This prompted her third visit to the trial, this time to watch

Mr. Coakley testify, and she again left without hearing anything

about Mr. Johnson. She then changed her mind about testifying.

She decided she would testify and contacted the defense because

she believed that Mr. Coakley had lied about Mr. Johnson’s mur-

der.

As she detailed in her proffered testimony, Ms. Bryant and

Mr. Coakley had been in a relationship for about 11 years and had

five children together. At the time of Mr. Johnson’s murder, she

lived in the South Gwen Cherry complex with her grandmother,

mother, two sisters, and of her two brothers, Jerimaine and Quincy

Bryant.

Ms. Bryant testified to where she and Mr. Coakley were on

the night Mr. Johnson was killed. She explained that she and Mr.

Coakley were together in bed watching a movie at her apartment

on the night of the murder. She heard two sets of shots, sitting up

for the first set and slouching for the second set. Mr. Coakley re-

mained asleep during both sets of shots. She then went to the bal-

cony, where she saw people running towards a clothing line but

could not see Mr. Johnson. She returned and woke Mr. Coakley,

who was sick with a stomach virus, to tell him of the shooting.

Mr. Coakley ran out the front door wearing red shorts and

socks, returning to put shoes on before going back out. Ms. Bryant

followed him and went to the clothing line. She did not see Mr.

Coakley, Mr. Glass, Curtis Bryant, or Quincy Bryant during the 10

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58 Opinion of the Court 19-10332

minutes she was there. When she returned home, Ms. Bryant

found her brother Quincy on the couch. He did not appear to be

out of breath, sweating, or to have exerted himself.

According to Ms. Bryant, this series of events lasted 15

minutes. She did not testify, however, as to where Mr. Coakley

went or when he returned.

2. THE RULE OF SEQUESTRATION

District courts have broad discretion to sequester witnesses

before, during, and after their testimony. See Geders v. United States,

425 U.S. 80, 87 (1976). At the time of trial, Rule 615 provided that,

at a party’s request, a district court “must order witnesses excluded

from the courtroom so that they cannot hear other witnesses’ tes-

timony.” 21

The two purposes of excluding prospective witnesses from

trial are to prevent them from tailoring their testimony to that of

earlier witnesses and to facilitate the exposure of false testimony

and other credibility problems. See Geders, 425 U.S. at 87; Warren,

578 F.2d at 1076; 29 Victor J. Gold, Fed. Prac. & Pro. Evid. § 6242

(2d. ed. & June 2024 update). When counsel or a witness violates

the rule of sequestration, the district court may (1) cite the guilty

party for contempt; (2) allow opposing counsel to cross-examine

21 Rule 615 was amended in December of 2023. The new Rule 615(a) operates

only to exclude witnesses from the courtroom, while the new Rule 615(b) al-

lows district courts to enter orders prohibiting disclosure of trial testimony to

witnesses and/or prohibiting excluded witness from accessing the trial testi-

mony.

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19-10332 Opinion of the Court 59

the witness as to the nature of the violation; or (3) in the case of an

intentional violation that results in actual prejudice, strike testi-

mony already given or disallow further testimony. See United States

v. Blasco, 702 F.2d 1315, 1327 (11th Cir. 1983).

A violation of the rule of sequestration does “not . . . require

the automatic exclusion of testimony[.]” United States v. Warren,

578 F.2d 1058, 1076 (5th Cir. 1978). Excluding a witness’ testimony

is a “serious sanction.” Id. at 1327. In all but the most egregious

cases, cross-examination ordinarily has the “curative aspect” of em-

powering the jury to evaluate the violating witness’ credibility. See

United States v. Eyster, 948 F.2d 1196, 1211 (11th Cir. 1991). See also

Holder v. United States, 150 U.S. 91, 92 (1893) (“If a witness disobeys

the order of withdrawal, while he may be proceeded against for

contempt, and his testimony is open to comment to the jury by

reason of his conduct, he is not thereby disqualified, and the weight

of authority is that he cannot be excluded on that ground, merely,

although the right to exclude under particular circumstances may

be supported as within the discretion of the trial court.”); United

States v. Cropp, 127 F.3d 354, 363 (4th Cir. 1997) (“Because exclusion

of a defense witness impinges upon the right to present a defense,

we are quite hesitant to endorse the use of such an extreme rem-

edy.”); United States v. Walker, 613 F.2d 1349, 1355 n.11 (5th Cir.

1980) (“failure of a witness to comply with the sequestration rule

does not of itself render his testimony inadmissible”). A district

court “ordinarily will not exclude witnesses without a demonstra-

tion of probable prejudice.” Warren, 578 F.2d at 1076 n.16.

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60 Opinion of the Court 19-10332

The district court called Ms. Bryant’s conduct “among the

more egregious violations of the [r]ule of [s]equestration.” D.E.

1227 at 32. Reviewing for abuse of discretion, we do not disturb

the district court’s finding of a violation. We have held that a wit-

ness violates a Rule 615 sequestration order by reading the testi-

mony of other witnesses. See, e.g., United States v. Jimenez, 780 F.2d

975, 980 n.7 (11th Cir. 1986) (“Reading prior trial testimony violates

[a Rule 615] sequestration order.”). Being told of another witness’

testimony is not too far removed from the reading of testimony.

Nevertheless, the district court erred in excluding Ms. Bry-

ant as the remedy for the violation. As indicated earlier, ordinarily

a district court will not exclude a witness absent a showing of prob-

able prejudice to the other side. See Warren, 578 F.2d at 1076 n.16.

The district court never made a finding that the government would

likely suffer prejudice if Ms. Bryant were allowed to testify. Indeed,

the government did not claim prejudice below and does not argue

prejudice on appeal.

3. PREJUDICE

We now address whether Jerimaine Bryant and Mr. Glass

were prejudiced by the district court’s error. As previously noted,

Ms. Bryant would have testified as to where she and Mr. Coakley

were on the night of Mr. Johnson’s murder—specifically that he

was asleep wither her in bed when the shots rang out and that she

woke Mr. Coakley to inform him. That testimony, if believed,

would have undermined the testimony of Mr. Coakley that he wit-

nessed Mr. Johnson’s murder.

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19-10332 Opinion of the Court 61

Jerimaine Bryant argues that he would have received some

general benefit from Ms. Bryant weakening Mr. Coakley’s overall

credibility. But Jerimaine Bryant was not implicated in the murder

of Mr. Johnson, and as a result his generalized allegations are insuf-

ficient to establish the requisite prejudice. See, e.g., Warren, 578

F.2d at 1076. He therefore has not shown prejudice from the ex-

clusion of Ms. Bryant.

The person most affected by Ms. Bryant’s exclusion was Mr.

Glass, whom Mr. Coakley explicitly incriminated in Mr. Johnson’s

murder. But Mr. Coakley was not the only one to point the finger

at Mr. Glass for the killing. Mr. Grimes testified that other DSBF

members teased Mr. Glass about him murdering Mr. Johnson. Ms.

Houser, a crack cocaine supplier for the DSBF and a cooperating

witness, testified that she saw Mr. Glass shooting over a wall at Mr.

Johnson. She also heard Quincy Bryant and Mr. Glass discussing

the murder. Ms. Bryant’s testimony may have cast doubt on Mr.

Coakley’s version of events, but it would not have impeached Mr.

Grimes or Ms. Houser. Given this additional evidence about Mr.

Glass killing Mr. Johnson, it is not apparent that the exclusion of

Ms. Bryant’s testimony prejudiced Mr. Glass. See Untied State v. Ir-

ving, 665 F.3d 1184, 1209–10 (10th Cir. 2011) (holding that the dis-

trict court’s error in excluding a defense witness due to a violation

of the sequestration rule was not prejudicial in part because there

was “substantial, independent evidence” on the disputed issue at

trial). But because we vacate all of the Count 1 RICO conspiracy

convictions on another ground, we need not make any definitive

pronouncements on prejudice to Mr. Glass.

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62 Opinion of the Court 19-10332

H. SGT. KELLY & AGENT PEREZ: PART 1

The government tendered Sgt. Kelly and Agent Perez as lay

witnesses who could provide certain opinions based upon their

training and expertise. See, e.g., D.E. 1202 at 31. Messrs. Graham,

Walker, and Hayes argue that the district court erred in permitting

them to offer improper dual-capacity testimony as both lay and ex-

pert witnesses.

1. RULES 701 AND 702

“The Federal Rules of Evidence distinguish between lay and

expert opinion testimony.” United States v. Gbenedio, 95 F.4th 1319,

1332 (11th Cir. 2024). Rule 702 generally permits opinions by qual-

ified experts based on “scientific technical, or other specialized

knowledge.” Under Rule 701, lay opinion testimony must, among

other things, be “rationally based on the witness’[ ] perception” and

cannot be “based on scientific, technical, or other specialized

knowledge within the scope of Rule 702.”

“The distinction sometimes blurs when [the] testimony is

based on professional work.” Gbenedio, 95 F.4th at 1332. For ex-

ample, just “because an expert could provide the type of testimony

at issue, [that does not mean] a lay witness cannot.” United States

v. Novaton, 271 F.3d 968, 1008 (11th Cir. 2001) (applying pre-2000

version of Rule 701). See Tampa Bay Shipbuilding & Repair Co. v.

Cedar Shipping Co., 320 F.3d 1213, 1223 n.17 (11th Cir. 2003) (ex-

plaining that Novaton remains good law after the 2000 amendment

to Rule 701). Nor does “the lay opinion of a law enforcement offi-

cial automatically become [ ] an expert opinion simply because it

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19-10332 Opinion of the Court 63

involves knowledge that preexisted the investigation in the present

case.” United States v. Williams, 865 F.3d 1328, 1342 (11th Cir. 2017).

We “examine the basis of an opinion to determine whether

it is lay or expert.” Gbenedio, 95 F.4th at 1332. When a witness

testifies in a dual capacity, i.e., as both a lay witness and an expert

witness, the district court must ensure that the lay opinions satisfy

Rule 701 and that the expert opinions satisfy Rule 702. “[P]roper

lay testimony [can be] rendered improper by the indiscriminate

merging of fact testimony with expert testimony” while the wit-

ness is “on the . . . stand.” United States v. Hawkins, 934 F.3d 1251,

1266 (11th Cir. 2019) (holding that it was plain error to allow a po-

lice officer to testify both as lay witness—on matters like his inter-

pretation of drug codes and jargon—and as an expert witness—on

matters like interpreting conversations and drawing inferences

from them as a whole, describing how cocaine is “cooked,” and

providing an overview of the evidence—without demarcation).

Together, Sgt. Kelly and Agent Perez constituted an im-

portant part of the government’s case. Sgt. Perez testified for three

days and Agent Perez for nine. We discuss their testimony sepa-

rately, starting with Sgt. Kelly.

2. SGT. KELLY

At the time of trial, Sgt. Kelly had been investigating gangs

in Miami for five years. See D.E. 1032 at 25. She had attended three

courses on gangs (basic, intermediate, and advanced) offered by the

Florida Department of Law Enforcement and had taken classes on

how to use social media for investigations. See D.E. 1203 at 42–43.

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64 Opinion of the Court 19-10332

And in the course of her work she had met with and talked to over

50 gang members. See D.E. 1204 at 31. With respect to her inves-

tigation of the DSBF, she conducted surveillance at the South

Gwen Cherry complex, was involved in some controlled purchases

of narcotics, used informants, reviewed surveillance videos from

pole cameras, and engaged in a review of the defendants’ social me-

dia activity. See, e.g., D.E. 1202 at 26–33.

During her direct examination, and without any objections,

Sgt. Kelly testified about or opined on a number of subjects. These

included the nicknames of some of the defendants (e.g., Mr. Gra-

ham’s username on a social media account was “G’Rico Long Live

King Squeezer”); the meaning of terms like “4-20” (a marijuana spe-

cial for $200 on April 20), “code red” (police in the area), “top-

shotta” (a leader or someone who is on top), “whip” (a car), “trap”

(the place where narcotics are kept and sold), “opp” (rival gang),

“jitt charges” (juvenile charges), and “broom” (a gun); and the in-

terpretation or meaning of certain gang signs. See D.E. 1203 at 14;

D.E. 1202 at 47, 51, 53–54, 73, 76, 93–94, 99, 109, 114.

The first defense objection under Rule 702 to Sgt. Kelly’s tes-

timony was to a question about the meaning of the term “crabs.”

See D.E. 1202 at 127–28. After the government went over Sgt.

Kelly’s training and experience, the defense objected again on Rule

702 grounds. See id. at 130. The district court overruled the objec-

tion, explaining that “it was up to the jury to decide” and that it was

“not a gatekeeper in this area any longer. I think the rules have

changed.” Id. at 130–31. The district court then explained,

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19-10332 Opinion of the Court 65

however, that “[t]he question [was] whether [Sgt. Kelly’s] experi-

ence qualifie[d] her to explain what certain words mean in this con-

text, and I think that goes to the weight of it.” Id. at 131.

After this exchange, Sgt. Kelly testified that “crabs” “usually

means Crips.” She also explained that “OTF” means “only the fam-

ily.” Id. at 132, 134. 22

With respect to Sgt. Kelly, we see no reversible dual-capacity

error.

First, aside from the two answers described above, Sgt.

Kelly’s opinions on nicknames, the meaning of terms used by the

defendants, and gang signs came in without any objections. That

means we review the admission of those opinions for plain error,

see United States v. Wetherald, 636 F.3d 1315, 1320 (11th Cir. 2011),

and there is no error that is plain given our precedent permitting

lay opinion testimony on similar subjects by law enforcement of-

ficers with sufficient experience. See, e.g., Novaton, 271 F.3d at 1009

(agents who monitored wiretaps testifying about code words);

United States v. Jayyousi, 657 F.3d 1085, 1102 (11th Cir. 2011) (FBI

agent testifying about code words, nicknames, references, and in-

terpretations of calls and communications).

Second, as to the two opinions to which objections were pre-

served—that “crabs” “usually means ‘Crips’” and that “OTF”

22 There was also a defense objection when Sgt. Kelly was asked to opine about

the meaning of the term “jump.” The objection was overruled, but Sgt. Kelly

ultimately did not give an opinion. See D.E. 1202 at 100.

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66 Opinion of the Court 19-10332

means “only the family”—we conclude that the district court ini-

tially erred in stating that it did not have the role of gatekeeper. As

our cases explain, the district court must ensure that expert testi-

mony under Rule 702 does not come in under the guise of lay opin-

ion testimony under Rule 701. See Hawkins, 934 F.3d at 1265–66.

And in order to carry out this task, the district court must indeed

act as a gatekeeper. Otherwise, dual-capacity opinion testimony

may prove problematic. See, e.g., United States v. Dulcio, 441 F.3d

1269, 1274 (11th Cir. 2006) (“We agree that it is error to admit opin-

ion testimony of lay witnesses based upon specialized knowledge,

such as [testimony by an agent on the modus operandi of people

involved in the drug business].”).

Nevertheless, the district court also explained that the ques-

tion was whether Sgt. Kelly, by virtue of her experience, could pro-

vide a lay opinion on a given subject. And given her experience in

gang investigations, her work in this case, and her review of the

defendants’ voluminous social media activity, allowing Sgt. Kelly

to opine on the meaning of “crabs” and “OTF” was not an abuse of

discretion. See, e.g., United States v. Wall, 116 F.4th 1285, 1308 (11th

Cir. 2024) (case agents did not violate Hawkins by providing “per-

missible factual or lay opinion testimony tied to the specifics of

their investigation”); Gbenedio, 95 F.4th at 1333 (DEA agent allowed

to opine, based on his personal observations, that the defendant

dispensed controlled substances without a legitimate medical pur-

pose and outside the normal course of practice). And even if there

was any error, we fail to see how the defendants suffered any prej-

udice from two opinions on relatively non-important matters.

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19-10332 Opinion of the Court 67

3. AGENT PEREZ

We now turn to Agent Perez. As with Sgt. Kelly, we will

focus on the specific testimony that the defendants challenge on

appeal.

At the time of trial, Agent Perez was a special agent in the

ATF’s Miami field office. He had served as an agent for eight years

and focused on investigating violent crimes, such as robberies,

gang activity, arsons, and explosives. He was the case agent, which

meant that he coordinated the various local and federal investiga-

tory resources. He also executed many of the search warrants used

in this case. See D.E. 1114 at 132–34.

Much like Sgt. Kelly, the vast majority of Agent Perez’s tes-

timony complained of by the defendants on appeal came in with-

out objection. For instance, Mr. Graham argues on appeal that

Agent Perez provided certain testimony based on his “training and

experience” that amounted to improper expert testimony. See R.

Graham Br. at 13 (providing a string cite to Agent Perez’s testi-

mony). But based on our review of Mr. Graham’s record cites, and

those provided by Messrs. Walker and Graham, we conclude that

they failed to raise contemporaneous Rule 702 objections. In fact,

in most instances the defendants did not object at all. See, e.g., D.E.

1114 at 177 (“Q: Based on your training and experience and inves-

tigation in this case, what does the phrase ‘BLATT’ mean? A: It’s

also associated with the Blood gang.”); id. at 201 (“Q: Are you fa-

miliar with the phrase ‘Blood in and Blood out’? Do you know

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68 Opinion of the Court 19-10332

what that means? A: I do, yes. Q: And what does it mean? A: It

means that you are a Blood from birth, always.”).

Given the lack of contemporaneous objections on Rule 702

grounds, we review for plain error. See Wetherald, 636 F.3d at 1320.

As with Sgt. Kelly, we find no plain error in the district court allow-

ing Agent Perez to testify about the meaning of terms, code words,

and other gang-related phrases and actions. That is because our

precedent allows testimony very close to what Agent Perez pro-

vided. See, e.g., Wall, 116 F.4th at 1308; Jayyousi, 657 F.3d at 1102;

Novaton, 271 F.3d at 1009.

The only preserved Rule 702 objection was to Agent Perez’s

testimony explaining why the word “Crazy” was spelled with a “B”

instead of a “C.” See D.E. 1217 at 85–86 (“A: That’s Brazzy. Q: [I]n

the course of this investigation, have you seen . . . the letter B sub-

stituted for the letter C? A: I have. Q: And why is that? A: It’s a

reference to the Bloods and not wanting the use the word C be-

cause it refers to Crips. [Defense counsel]: Objection, Your Honor

. . . it’s calling for his opinion that is not just a lay opinion, but a

specialized opinion which he’s not qualified for at this point.”).

But the district court in effect sustained that objection by re-

quiring Agent Perez to clarify whether, in the course of his investi-

gation, he had seen the defendants switch the letter “B” for “C.”

See id. After confirming that he had, the government then asked

him whether the defendants had a “common association.” Agent

Perez responded, “[y]es . . . [t]hey all subscribe to the Blood gang.”

Id. at 86. The defendants’ objection to the latter answer was that

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19-10332 Opinion of the Court 69

Agent Perez improperly drew a “conclusion that is not . . . for him

to make at this point.” Id. at 87. The district court overruled that

objection and the testimony continued without further reference

to the previously-objected-to “specialized” testimony. We con-

clude the testimony was permissible because it was based on Agent

Perez’s investigation in this case. See, e.g., Novaton, 271 F.3d at 1009.

In sum, we find no reversible error in the district court’s de-

cision to allow Sgt. Kelly and Agent Perez to testify about the de-

fendants’ association with the Bloods and the meaning of certain

terms and gang-related code words.

I. SGT. KELLY & AGENT PEREZ: PART 2

Mr. Hayes raises another plain-error challenge to the testi-

mony of Sgt. Kelly and Agent Perez. He argues that they offered

impermissible expert conclusions on the ultimate issue of whether

there was a RICO enterprise by referring to the defendants collec-

tively as a “gang” or an “organization.” See S. Hayes Br. at 10–11.

This argument is misplaced. Even assuming that Sgt. Kelly

and Agent Perez provided Rule 702 testimony, experts may testify

on ultimate issues so long as they do not opine on the defendants’

mental state or condition in a criminal case. See Fed. R. Evid.

704(b). See also United States v. Gryzbowicz, 747 F.3d 1296, 1310

(11th Cir. 2014) (“[A]n expert may testify as to his opinion on an

ultimate issue of fact provided that he does not merely tell the jury

what result to reach or testify to the legal implications of conduct.”)

(citation and internal quotation marks omitted). Because the exist-

ence of an enterprise is not a matter involving scienter, see Boyle v.

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70 Opinion of the Court 19-10332

United States, 556 U.S. 938, 944–45 (2009) (laying out the “broad”

understanding of a RICO enterprise), there was no plain error.

J. SGT. KELLY & AGENT PEREZ: PART 3

Curtis Bryant challenges some of the testimony of Sgt. Kelly

and Agent Perez on separate and unrelated grounds. He argues

that there was no evidence that the social media account attributed

to him in fact belonged to him. But this is simply not correct. The

account, belonging to “Snow Bryant,” shared his last name and in-

cluded multiple photographs of him (several of which were selfies).

In the comments to one of the account’s posts, another user ad-

dressed “Snow” as “Curt” and “Curtis.” See Gov’t Exh. 306 at 6972,

6993–95, 7015, 7065. Accordingly, there was sufficient evidence

that the account more likely than not belonged to Curtis Bryant.

See Fed. R. Evid. 104(b).

In addition, Curtis Bryant contends that the district court

should have excluded this social media evidence under Rule 403 as

irrelevant and unfairly prejudicial. “Rule 403 ‘is an extraordinary

remedy which the district court should invoke sparingly, and the

balance should be struck in favor of admissibility.’ . . . The balance

to be struck is largely committed to the discretion of the district

court[.]” United States v. Lopez, 649 F.3d 1222, 1247 (11th Cir. 2011)

(citation omitted).

As the government correctly points out, the account in ques-

tion contained a significant amount of relevant information. For

example, on multiple occasions the owner used the hashtag

“GMT,” an alternative acronym for the DSBF, and posted pictures

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19-10332 Opinion of the Court 71

of Mr. Hallman, a rival gang member, including one of him in a

casket at his funeral. This was significant because Mr. Coakley of-

fered testimony from which the jury could find that Curtis Bryant

killed Mr. Hallman. So did Ms. Houser.

The social media evidence therefore suggested gang affilia-

tion and further tied Curtis Bryant to the homicide of a rival gang

member. This evidence was certainly prejudicial to Curtis Bryant,

but not in a legally unfair way. On this record, we cannot say that

any such prejudice substantially outweighed its probative value.

Accordingly, the district court did not abuse its discretion in admit-

ting evidence of the “Snow Bryant” social media account.

V. THE DEFENSE EXPERT

The district court excluded all of the testimony of a defense

gang expert, Dr. Jesse de la Cruz. The defendants challenge his ex-

clusion on appeal.

We review rulings on the admissibility of expert testimony

under the abuse of discretion standard. See Kumho Tire Co., Ltd. v.

Carmichael, 526 U.S. 137, 152 (1999). This deferential standard gives

the district court “‘considerable leeway’” in making its evidentiary

determinations. See Frazier, 387 F.3d at 1258 (quoting Kumho Tire,

526 U.S. at 152). We may affirm an evidentiary ruling on any

ground supported by the record, even if that ground was not the

basis for the district court’s ruling. See In re Int’l Management Assocs.

LLC, 781 F.3d 1262, 1266 (11th Cir. 2015). See also Samaan v. St. Jo-

seph Hosp., 670 F.3d 21, 31 n.4 (1st Cir. 2012) (applying this principle

to the exclusion of expert testimony).

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72 Opinion of the Court 19-10332

Before summarizing Dr. de la Cruz’s proposed testimony, we

describe the evidence presented by the government about the

DSBF and its affiliation or connection with the Bloods. That evi-

dence will explain the relevance of Dr. de la Cruz’s testimony.

A. THE GOVERNMENT’S GANG AND BLOODS EVIDENCE

Count 1 of the indictment charged the defendants with be-

ing members of a RICO conspiracy in violation of 18 U.S.C. §

1962(d). The defendants, according to the government, were part

of the DSBF, a criminal gang (an enterprise) which trafficked in

narcotics and committed other crimes (like robbery and murder)

from 2000 through 2017 out of the South Gwen Cherry complex.

See D.E. 193 at 2–8.

In its case in chief, the government presented the expert tes-

timony of FBI Special Agent Christopher Mayo. As relevant here,

he testified that (1) “an open air drug market” is a place where drug

transactions take place outdoors; (2) in South Florida most gangs

are community-based, operate by themselves in a geographic area,

and are made up of members who grew up in a certain area; (3)

“typically” there aren’t “nationally-based gangs”; (4) drug organiza-

tions usually sell narcotics at retail from a location, or “trap;” (5)

drug organizations have individuals performing different functions

(e.g., suppliers, lieutenants, sellers, lookouts, etc.); (6) drug organi-

zations also have workers who handle weapons (like firearms) and

are in charge of security “in case they’re robbed by rival gang mem-

bers or other drug traffickers;” (7) drug organizations utilize people

who will conduct robberies (e.g., of other drug organizations) or

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commit homicides; (8) cocaine is a powder and is trafficked from

Ecuador through go-fast vessels in the Eastern Pacific and Carib-

bean, into Mexico and/or the United States; (9) cocaine is cooked

with baking soda and water to form cocaine base in a rock-like

form; (10) marijuana is grown in South Florida in grow houses and

is also imported from Mexico and places like Colorado; and (11)

the slang term “dub” refers to 20, as in a “20 piece of cocaine or $20

worth of marijuana.” See D.E. 1215 at 95–108.

Agent Mayo was not asked about the Bloods, or about

whether the defendants were in a gang that considered itself a

Bloods gang. Other government witnesses, however, testified ex-

tensively about how the DSBF identified itself and considered itself

as a Bloods gang.

Sgt. Kelly provided testimony about the Bloods and its con-

nection to the DSBF. She testified that “[t]his gang [the DSBF] iden-

tifies themselves as the Bloods.” D.E. 1202 at 75. She also explained

that a defendant wearing a red bandana was “an indication for

Blood[s]” and showed gang members “identifying themselves as

Blood[s] members.” Id. at 96–97. In her experience, the Bloods

wear red “most of the time,” but “not all the time.” D.E. 1203 at

37, 39. When asked about “Tone Bleedin Red,” the Facebook name

of Mr. Glass, she responded that the name meant “[t]hat he’s a

Blood, that he’s bleeding red for Blood.” D.E. 1202 at 99. Similarly,

she reviewed a photograph of Jerimaine Bryant and told the jury

that he was making a “Blood” sign. See D.E. 1203 at 52 (“Usually

people that associate themselves with the Bloods . . . they throw

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74 Opinion of the Court 19-10332

that gang sign.”). She said that the “Bloods” and “Crips” are “ri-

vals.” D.E. 1202 at 132.

In relatively lengthy exchange with the government, Sgt.

Kelly also testified that (1) in South Florida the number one factor

to determine gang membership are the “red bandanas;” (2) the two

main gang criteria she looks for are “the colors, the red, [and] the

hand signs they [are] throwing;” and (3) other criteria are “[h]ow

they [the members] call themselves as a group,” and whether a per-

son identifies as a member—“Q: What do you think about some-

one who claims that they’re a Blood? A: If they say that, it’s because

they’re Bloods and we usually document it as Blood[s] members.”

D.E. 1204 at 29–31. See also D.E. 1202 at 96–97 (“Q: [W]hat is the

significance of the red bandana? A: That’s significance [sic] that

they [are] actually Blood, that they [are] part of a gang, that they’re

identifying themselves as Blood members.”).

Significantly, Sgt. Kelly also testified about the “connection”

between the DSBF and the national Bloods gang. In her opinion,

the DSBF was “a subset” of the Bloods. See D.E. 1202 at 120.

Like Sgt. Kelly, Agent Perez testified about the affiliation of

the DSBF with the Bloods. He explained that the members of the

defendants’ gang “all subscribe to the Blood gang.” D.E. 1217 at

86. He also said that certain words and phrases used by the defend-

ants (and their spellings) were references to the Bloods or their

code. See, e.g., D.E. 1218 at 71–75. For example, he told the jury

that “based on [his] training and experience” the use of the word

“blatt” in some of the defendants’ social media posts was

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19-10332 Opinion of the Court 75

“associated with the gang of the Bloods.” D.E. 1220 at 91. See also

D.E. 1219 at 78 (identifying an exhibit as a “photograph of

Jerimaine Bryant displaying the hand sign for Bloods”).

The government’s evidence about the Bloods gang and its

connection to the DSBF was not limited to the testimony of law

enforcement officials. Two cooperating witnesses—Messrs.

Grimes and Coakley—also testified that the defendants’ gang was

affiliated with the Bloods. Mr. Grimes told the jury that the DSBF

was a “Blood gang” which used an initiation ritual (a 31-second

beatdown) that “came from Blood like Blood code,” and explained

that the members considered themselves East-side Bloods because

they were on the east coast. See D.E. 1204 at 160–61, 165, 168. Mr.

Coakley confirmed the DSBF’s affiliation with the Bloods gang. See

D.E. 1205 at 45, 179, 193. In addition, there was testimony by other

government witnesses about the defendants’ social media posts,

which frequently referenced the defendants’ Bloods membership.

See D.E. 1219 at 39, 68, 75, 77–78, 83–84; D.E. 1221 at 3, 6, 8, 10–12,

14.

B. DR. DE LA CRUZ

Dr. de la Cruz holds a bachelor’s degree in Sociology with a

minor in Deviant Behavior, as well as a master’s degree in Social

Work. See D.E. 1221 at 85. He was a gang member in California in

the 1970s and wrote his dissertation about gang members from

Stockton who were aligned with the “Norteños.” See id. at 85–87.

He also interacted with members of the Bloods during his own in-

carceration and during his stint as the director of a program dealing

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76 Opinion of the Court 19-10332

with parolees who had a high-risk of recidivism. See id. at 99–102.

He has been qualified to testify as an expert on gang-related matters

over 60 times in state and federal courts, and he has served as an

expert consultant in over 500 other cases. See id. at 102–04. The

defendants wanted to call him as a gang expert to explain that the

defendants were not members of the Bloods or of a gang and there-

fore did not constitute a criminal enterprise. See id. at 60–61, 67.

In his testimonial proffer outside of the jury’s presence, Dr.

de la Cruz provided the following opinions after reviewing some of

the trial testimony and exhibits: (1) gangs, including the Bloods and

the Crips, generally have rules; (2) gangs have leaders and gang

members commit crimes for the benefit of the organization; (3)

profits are managed by a treasurer; (4) most gangs do not allow

members to use drugs, and sometimes punish drug use with death;

(5) gangs do not allow members to assault or kill other members

without permission; and (6) the defendants were not a gang or

criminal enterprise because (a) they were a “bunch of yahoos run-

ning around . . . breaking the law with no sense of direction, with

no leadership direction,” (b) they used drugs, which was incon-

sistent with the behavior of those in criminal enterprises, (c) they

did not get together for meetings to discuss the organization’s busi-

ness, (d) they were “shooting each other indiscriminately,” and (e)

they did not kill rivals. See id. at 90–98. He also opined that the

defendants were “not Bloods” because they wore blue instead of

red, they attacked each other, and they talked to the police. See id.

at 102-08. In sum, the defendants did “not meet one of the ele-

ments of a criminal enterprise[.]” Id. at 108.

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During cross-examination in the proffer session, Dr. de la

Cruz acknowledged that he was talking about the Bloods in gen-

eral. He maintained that all of the Bloods gangs were connected

under the “People Nation” or “Folk Nation” umbrella, but he had

not interviewed any members of the Bloods outside of California

or New York/Pennsylvania. See id. at 118–19.

C. DISCUSSION

The district court excluded all of Dr. de la Cruz’s testimony

on three grounds. First, it ruled that his testimony was not relevant

because the government had not tried to connect the DSBF to the

national Bloods gang. Second, it believed that one of Dr. de la

Cruz’s opinions went to the ultimate issue in the case (i.e., whether

the defendants formed a criminal enterprise) and thus was not

properly “the subject of expert testimony.” Third, it concluded that

Dr. de la Cruz was not an “expert in th[e] area” of criminal enter-

prises and was not offered as an expert in that area. See D.E. 1221

at 1224–26. 23

All three grounds were mistaken on either the facts, the law,

or both. We explain why below.

1. RELEVANCE

Starting with relevance, the district court seems to have

simply overlooked or misunderstood the government’s Bloods-

23 The district court did not exclude Dr. de la Cruz under the qualification or

reliability aspects of Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993),

or its progeny.

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78 Opinion of the Court 19-10332

related evidence. As detailed above, the government presented

considerable testimony from a number of witnesses—including

Sgt. Kelly, Agent Perez, and former DSBF members—about the

DSBF being a Bloods gang or a Bloods-affiliated gang and the de-

fendants using Bloods nicknames, terms, and signs. If the govern-

ment thought that Bloods-related evidence was irrelevant, it would

not have presented this evidence for the jury to consider.

Evidence is relevant if it has “any tendency to make a fact

more or less probable than it would be without the evidence; and

the fact is of consequence in determining the action.” Fed. R. Evid.

401. We have explained that “[t]he standard for what consti-

tutes relevant evidence is a low one,” United States v. Tinoco, 304

F.3d 1088, 1120 (11th Cir. 2002) (quoting Fed. R. Evid. 401), and

given the government’s Bloods-related evidence Dr. de la Cruz’s

testimony certainly met that bar. Accord Roger C. Park & Aviva

Orenstein, Trial Objections Handbook 2d § 2:1 (2023) (“Rule 401

adopts a very broad concept of relevance.”).

“In the law, what’s sauce for the goose is normally sauce for

the gander,” and we “have applied this commonsense principle of

equal treatment in the context of expert witnesses.” United States

v. Knowles, 889 F.3d 1251, 1257–58 (11th Cir. 2018). It is therefore

“an abuse of discretion to exclude the otherwise admissible opinion

of a party’s expert on a critical issue, while allowing the opinion of

his adversary’s expert on the same issue.” United States v. Lankford,

955 F.2d 1545, 1552 (11th Cir. 1993).

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19-10332 Opinion of the Court 79

This principle, we think, also applies when the defense wants

to present expert testimony to counter factual testimony and/or

lay opinions offered by government witnesses. Where the govern-

ment presents evidence to support a certain theory, a defendant is

entitled to rebut that theory with evidence of his own. See, e.g.,

United States v. Word, 129 F.3d 1209, 1212–13 (11th Cir. 1997) (revers-

ing conviction because the defendant “was not afforded the oppor-

tunity to present evidence to counter the government’s argument,”

as the government’s “trial strategy made this defense evidence

highly significant”). Moreover, expert testimony can be used to

counter an opponent’s fact or lay opinion testimony. See, e.g., Panger

v. Duluth, Winnipeg & Pac. Ry. Co., 490 F.2d 1112, 1117 (8th Cir. 1974)

(explaining that, where the plaintiff offered a lay opinion in his own

testimony, “the defendant should have been accorded the right to

counter that evidence with either factual evidence of its own or

properly proffered expert testimony”).

The defendants were charged in Count 1 with participating

in a RICO conspiracy in which their criminal gang (the DSBF) was

the alleged enterprise. Dr. de la Cruz’s testimony about gangs (and

the Bloods) would have been helpful to the jury in determining (a)

whether the defendants were part of a criminal gang and (b)

whether the gang constituted the enterprise alleged in the charged

RICO conspiracy.

“Rule 702 . . . requires that the evidence or testimony ‘assist

the trier of fact to understand the evidence or to determine a fact

in issue[,]’ [and] [t]his condition goes primarily to relevance.”

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80 Opinion of the Court 19-10332

Daubert, 509 U.S. at 591. The topics of gangs, gang membership,

and gang affiliation are not matters within the “common

knowledge of [lay] jurors.” Evans v. Mathis Funeral Homes, Inc., 996

F.2d 266, 268 (11th Cir. 1993). Other circuits have allowed the sort

of expert opinions that Dr. de la Cruz sought to offer, and we think

their decisions are persuasive on this point. See, e.g., United States v.

Portillo, 969 F.3d 144, 169 (5th Cir. 2020) (upholding district court’s

decision to allow a government expert to testify about the Bandidos

Outlaw gang, which was the charged enterprise in a RICO case:

“Likewise, the district court did not abuse its discretion in conclud-

ing that Schuster’s testimony [about the Bandidos Outlaws] would

be helpful to the jury.”); United States v. Kamahele, 748 F.3d 984, 999

(10th Cir. 2014) (“The district court allowed Officer Merino’s testi-

mony after finding that it helped the jury by providing insights into

the distinctive traits of TCG [the alleged gang], a topic beyond the

knowledge of most jurors. This ruling fell within the district

court’s discretion[.]”). Moreover, that Dr. de la Cruz’s testimony

focused in part on the national Bloods gang did not render his opin-

ions about the defendants or the DSBF irrelevant or otherwise im-

proper. See United States v. Ledbetter, 929 F.3d 338, 349 (6th Cir. 2019)

(“Detective Caffey would not have been a reliable expert on the

Short North Posse itself. But he did not purport to be. Detective

Caffey opined about the national Crips gang, on which he was qual-

ified, and the Government used other testimony to show that the

Short North Posse fit the description of a Crip set. This exact ap-

proach—eliciting expert testimony on a national gang and

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19-10332 Opinion of the Court 81

separately drawing a link to the local set—was approved of [by us

in an earlier case].”).

Dr. de la Cruz’s testimony also did not improperly go to an

ultimate issue in the case. As we explained earlier, with the excep-

tion of testimony on the mental state or condition of a defendant

in a criminal case, there is no categorical prohibition on expert tes-

timony concerning an ultimate issue of fact: except as provided in

subsection (b) of Rule 704, “[a]n opinion is not objectionable just

because it embraces an ultimate issue.” Fed. R. Evid. 704(a). As a

result, “the mere fact that an expert’s conclusion trenches upon a

jury issue does not compel exclusion” because Rule 704 “abolishes

the per se rule against testimony regarding ultimate issues of fact.”

United States v. Milton, 555 F.2d 1198, 1203 (5th Cir. 1977) (holding

that, in a criminal prosecution for conducting an illegal gambling

business, a government expert’s testimony that certain transactions

constituted “lay off bets” was admissible).

In the government’s view, Dr. de la Cruz’s testimony was

“akin to Pat Riley [the former head coach for the Lakers, Knicks,

and Heat] asserting that a group from a YMCA recreational league

did not constitute a ‘basketball team’ because, in his decades of

NBA experience, a team required players drafted from top college

programs, paid millions of dollars, and . . . practiced multiple days

a week.” Appellee’s Br. at 56. But that hypothetical does not quite

fit.

The proper question is not, as the government suggests,

whether Mr. Riley would have been allowed to testify that a YMCA

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82 Opinion of the Court 19-10332

team playing a pickup game is a not team in the sense of the rules

of basketball, but whether he would have been allowed to testify

that such a team—which can change players every day or week and

may not have any collective continuity or goal over a period of

time—is not an enterprise with relationships among its members

(the changing players) and a longevity sufficient to pursue a given

common purpose. One of the instructions provided

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