United States v. Wilson

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 19, 2009 Decided May 25, 2010

No. 06-3128

UNITED STATES OF AMERICA,

APPELLEE

v.

GEORGE WILSON, ALSO KNOWN AS SHUG, ALSO KNOWN AS

HERMAN WALKER, ALSO KNOWN AS DONNELL MACK,

APPELLANT

Consolidated with 06-3131, 06-3133, 06-3136, 06-3140

Appeals from the United States District Court

for the District of Columbia

(No. 04cr00128-18)

Richard K. Gilbert, David B. Smith, Steven R. Kiersh, and

Sicilia C. Englert, appointed by the court, argued the cause for

appellants. With them on the briefs were Michael E. Lawlor and

Thomas J. Saunders, appointed by the court. Kristen G. Hughes,

appointed by the court, entered an appearance.

Stratton C. Strand, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief were Roy W. McLeese

2

III, Elizabeth Trosman, John Dominguez, and Darlene Soltys,

Assistant U.S. Attorneys.

Before: SENTELLE, Chief Judge, and ROGERS and

KAVANAUGH, Circuit Judges.

Opinion for the Court filed PER CURIAM.

PER CURIAM: A group known as the M Street Crew

operated a massive drug ring in Northeast Washington, D.C.

The Crew sold PCP, as well as ecstasy and some crack cocaine.

From late 2002 through March 2004, the government conducted

an extensive investigation of the M Street Crew’s activities. As

a result of the investigation, 19 defendants were charged with a

variety of federal crimes. In this appeal, five of those

defendants challenge their convictions and sentences. They

raise numerous claims, some common to all defendants and

others specific to one or more defendants. Except for one issue

related to defendant Blackson’s judgment as to which the

government concedes error, we affirm the district court’s

judgments in their entirety.

I

A

We describe the facts in the light most favorable to the

government, as we must in reviewing a jury verdict of guilt.

United States v. Clayborne, 509 F.2d 473, 475 (D.C. Cir. 1974);

United States v. Alexander, 331 F.3d 116, 127 (D.C. Cir. 2003).

The five appellants in this case are John Franklin, William

Robinson, George Wilson, Joseph Blackson, and William

Simmons.

3

In 2002, the FBI and the Metropolitan Police Department of

Washington, D.C., initiated an intensive investigation of

criminal activity in a four-block area around 18th Street and M

Street in Northeast Washington. Officers viewed the

neighborhood at the time as “an open air drug market.” Mar. 28,

2006 AM Trial Tr. at 95 (Officer Carlton Herndon). The air

smelled of PCP, and the area was filled with broken vials. Id. at

100; id. at 40 (Officer Michael Morawski). Detectives

patrolling the area could easily find bottles of PCP hidden along

the edges of buildings and walkways. Id. at 100 (Officer

Carlton Herndon).

During its investigation, the government uncovered a large-

scale drug ring. John Franklin had a supplier outside the M

Street Crew from whom he bought at least 15 to 20 gallons of

PCP between 2002 and 2004. Mar. 14, 2006 AM Trial Tr. at 65

(Herbert Martin). Franklin, in turn, supplied the M Street Crew

primarily with liquid PCP and ecstasy pills. Mar. 22, 2006 AM

Trial Tr. at 73–74 (Elizabeth Lee); Apr. 19, 2006 PM Trial Tr.

at 29–30 (Roberta Moore).

Franklin’s routine was generally consistent. He would

obtain PCP from his supplier. Then, Franklin’s common-law

wife, Elizabeth Lee, would rebottle the drug into ounce and half-

ounce bottles for Franklin to sell on the street or to lower-level

dealers. Mar. 22, 2006 PM Trial Tr. at 7 (Elizabeth Lee).

Before selling his now-bottled product, Franklin employed a

neighborhood woman, Monica Bell, to “test it out.” Id. at 40,

43. Bell sampled Franklin’s PCP about “three times a week” in

exchange for occasional “free dippers,” cigarettes soaked in

PCP. Apr. 18, 2006 PM Trial Tr. at 82, 86 (Monica Bell).

After testing, Franklin would supply the drugs to the Crew.

Often, these drug transactions would occur in person. See, e.g.,

Apr. 27, 2006 AM Trial Tr. at 85 (Omari Minnis) (“Normally I

4

might go to him once, twice a week. Get about a ounce, two

ounces.”). When Franklin was not available, however, he

delegated to his lieutenants. See, e.g., Apr. 24, 2006 PM Trial

Tr. at 32, 38 (Ronnie Tucker); Aug. 11, 2003 Wiretap Tr. at 2–3;

May 2, 2006 AM Trial Tr. at 15 (Michael Abney). Franklin sold

PCP to those he supplied in half-ounce bottles for $250 and

ecstasy pills in ten-packs for $100. Mar. 22, 2006 AM Trial Tr.

at 73–74 (Elizabeth Lee); Apr. 20, 2006 PM Trial Tr. at 28–29

(April Jackson).

Franklin’s role was not limited to that of a supplier. At

trial, other members of the Crew described Franklin as their

“organizer” and “leader.” Apr. 24, 2006 AM Trial Tr. at 107

(Ronnie Tucker); May 2, 2006 AM Trial Tr. at 10–12 (Michael

Abney). Indeed, members of the Crew brought Franklin in to

mediate disputes and to “keep[] M Street in order.” May 2,

2006 AM Trial Tr. at 12 (Michael Abney). Even when

uninvited, Franklin often played a mediating role between Crew

members. See id. at 39. When absent from 18th and M,

Franklin would check in on the Crew, sometimes giving advice

about their selling methods. See, e.g., Sept. 30, 2003 Wiretap

Tr. at 2.

Below Franklin in the Crew’s hierarchy were his three

lieutenants: William Robinson, George Wilson, and Joseph

Blackson. May 2, 2006 AM Trial Tr. at 13–15 (Michael

Abney). Those men supplied the Crew with PCP in Franklin’s

absence. Id. at 29; Apr. 24, 2006 PM Trial Tr. at 14–15 (Ronnie

Tucker). The lieutenants would “take on the situations when

John [was] not around as far as money, or drugs or problems

that’s going on that’s involved in the area, keep things intact” so

as not to mess up the Crew’s “money spot.” May 2, 2006 AM

Trial Tr. at 15 (Michael Abney). Their job was “to oversee

everything for the top man. To make sure everything on the

block going the way that he . . . would want it to be and see to it

5

that its foot soldiers everybody taken care of, everybody

straight.” May 3, 2006 AM Trial Tr. at 22 (Michael Abney).

William “Dee” Robinson was one of Franklin’s closest

friends. Mar. 23, 2006 AM Trial Tr. at 22 (Elizabeth Lee).

Robinson “would hold bottles” of PCP for Franklin when he was

away from 18th and M, Apr. 27, 2006 AM Trial Tr. at 91

(Omari Minnis), and communicated regularly with Franklin

about the Crew’s drug sales and supply, see, e.g., Apr. 24, 2006

PM Trial Tr. at 66–67 (Ronnie Tucker); Aug. 21, 2003 Wiretap

Tr. at 1. On Sundays, which Franklin spent with his family,

Robinson was sometimes in charge of the Crew. See May 2,

2006 AM Trial Tr. at 28–29 (Michael Abney).

George “Shug” Wilson was like a sibling to Franklin. Id. at

35. When Franklin was unavailable, he regularly referred

buyers to Wilson, who sold some of the PCP supplied by

Franklin. Id. at 29; Apr. 24, 2006 PM Trial Tr. at 15 (Ronnie

Tucker). Wilson played an enforcement role in the Crew; he

defended its preeminence in the 18th and M area from outsiders,

sometimes by force. See Sept. 27, 2003 Wiretap Tr. at 1–2; Oct.

3, 2003 Wiretap Tr. at 1, 4–6; May 3, 2006 PM Trial Tr. at

34–35 (Robin Tamika Hazel) (“Shug pulled his gun out on him

and made him leave. . . . Told him to leave from off his block.

This is his block.”). Moreover, like Robinson, Wilson was

sometimes in charge of the Crew in Franklin’s absence. May 2,

2006 AM Trial Tr. at 28–29 (Michael Abney). This authority

position was apparent to onlookers; a police officer who

regularly patrolled 18th and M initially took Wilson to be “in

charge” of the Crew. Mar. 28, 2006 PM Trial Tr. at 11, 13–14

(Officer Carlton Herndon).

Joseph “Joe Black” Blackson, Franklin’s younger brother,

also distributed PCP in Franklin’s absence. In addition,

Blackson held drugs for his brother. Apr. 24, 2006 PM Trial Tr.

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at 17–18 (Ronnie Tucker). In his dealings with an undercover

officer, Blackson equated himself with Franklin, stating that

“dealing with John is just as dealing with him.” Apr. 4, 2006

PM Trial Tr. at 97 (Officer Donna Leftridge). Blackson was the

only one of the lieutenants to be absent from the 18th and M

Street area for any length of time during the investigation; he

was arrested on July 29, 2003, when police found drugs in the

glove compartment of his car. Apr. 12, 2006 PM Trial Tr. at

60–74 (Officer Max Luis Salazar). Blackson was then

incarcerated for an indeterminate period of time before returning

to 18th and M. See Reply Br. at 69; Aug. 31, 2006 Sent. Hg. at

67.

Beneath Franklin’s three lieutenants was a class of “foot

soldiers” who made individual sales in the 18th and M area.

May 2, 2006 AM Trial Tr. at 18–19 (Michael Abney). Although

the foot soldiers were numerous, only one foot soldier was tried

with Franklin and is party to this appeal. William “Mike”

Simmons was Franklin’s “loyalest foot soldier.” Id. at 42.

Witnesses variously testified that Simmons was Franklin’s

“[s]idekick,” “runner,” “helper,” “little man,” and “flunky.”

Apr. 19, 2006 PM Trial Tr. at 44 (Roberta Moore); Apr. 27,

2006 AM Trial Tr. at 88 (Omari Minnis). According to one

witness, Simmons would do “[w]hatever [Franklin] told him.

Sell bottles to people. If [Franklin] . . . needed anything done,

he’d do it.” May 2, 2006 AM Trial Tr. at 43 (Michael Abney).

One of Simmons’ most frequent tasks was to deliver drugs to

Franklin or from Franklin to his customers. See, e.g., id. at

51–52; Apr. 19, 2006 PM Trial Tr. at 44 (Roberta Moore); Apr.

24, 2006 PM Trial Tr. at 17 (Ronnie Tucker).

B

The M Street Crew displayed cohesion both as a business

and as a social unit. As a business, the Crew guarded its

7

territory, permitting only Crew members to sell within the 18th

and M area. Apr. 27, 2006 AM Trial Tr. at 81–82 (Omari

Minnis); Apr. 24, 2006 PM Trial Tr. at 22 (Ronnie Tucker)

(“We ain’t allow nobody to sell drugs around there that wasn’t

from around there.”). The Crew used graffiti to mark its

territory. See, e.g., Record Materials for Appellee at 95–105.

Moreover, the Crew’s monopoly on drug sales within its turf

was strictly enforced; if someone from outside the Crew

attempted to sell drugs in the Crew’s territory, he would “either

get hurt real bad or he wouldn’t make it home.” Apr. 27, 2006

AM Trial Tr. at 82 (Omari Minnis).

Economic order was maintained within the Crew as well.

Franklin and the lieutenants imposed a rotational system of drug

sales whereby the Crew members would “take turns” selling so

that “everybody get[s] a fair share.” Apr. 24, 2006 PM Trial Tr.

at 5 (Ronnie Tucker). Under this system, each Crew member

would be permitted to make a single sale — regardless of the

magnitude of the sale — before relinquishing the turf to another

Crew member. Apr. 27, 2006 AM Trial Tr. at 80 (Omari

Minnis) (“say it was five of us outside, you know, whoever was

outside first goes first, come up second, go second. Don’t

matter how much they wanted or, you know, they wanted eight

dippers it’s your turn.”).

The Crew members also protected their turf and each other

from potential threats in the form of police officers and

outsiders. When police were in the area, Crew members would

alert one another to the potential threat. Mar. 28, 2006 AM Trial

Tr. at 41 (Officer Carlton Herndon) (“When I came into the

area, either on a bike or a car, they would always give a heads

up that I was in the area.”); Apr. 24, 2006 PM Trial Tr. at 7

(Ronnie Tucker) (“We warn each other.”). Similarly, when

outsiders attacked Crew members, the Crew fought back,

sometimes exchanging gunfire. See, e.g., Apr. 27, 2006 PM

8

Trial Tr. at 6–8 (Omari Minnis); May 2, 2006 AM Trial Tr. at

73–80 (Michael Abney).

Finally, the Crew was a cohesive social unit. Crew

members socialized together, frequenting local dance clubs.

Apr. 6, 2006 AM Trial Tr. at 18–20 (Ricardo Love). Crew

members would flash an M-shaped hand signal to one another,

signaling their membership in the M Street Crew. See Record

Materials for Appellee at 122–23, 125. Musicians at the local

clubs recognized the group as a defined unit, giving a “shout

out” that the M Street Crew was “[i]n the house.” Apr. 6, 2006

AM Trial Tr. at 20–21 (Ricardo Love).

C

The massive investigation of the M Street Crew culminated

in 39 arrests on March 16, 2004. Mar. 10, 2006 AM Trial Tr. at

45 (Agent Joseph Sopata). Among those arrested and later

indicted were Franklin, Robinson, Wilson, Blackson, and

Simmons, appellants here. Those five were tried together. After

a lengthy trial, the jury convicted each defendant of the bulk of

the drug charges leveled against him. The defendants were

acquitted of various weapons and violent crime charges.

The jury convicted Franklin of one count of conspiracy to

distribute and possess with intent to distribute a controlled

substance (Count 1, Judgment of Franklin at 1; Verdict at 1–3);

one count of RICO conspiracy (Count 2, Judgment of Franklin

at 2; Verdict at 12–13); one count of continuing criminal

enterprise (Count 3, Judgment of Franklin at 2; Verdict at 4–11);

16 counts of distribution of and possession with the intent to

distribute PCP, half of which occurred within 1,000 feet of a

school (Counts 8, 10, 17, 21, 30, 36–37, 41–42, 44, 51, 53, 58,

63, 69, and 77, Judgment of Franklin at 2–3; Verdict at 16–20);

three counts of distribution of cocaine base, one of which

9

occurred within 1,000 feet of a school (Counts 45, 52, and 67,

Judgment of Franklin at 2; Verdict at 17–18); five counts of

distribution of ecstasy and possession with the intent to

distribute ecstasy, two of which occurred within 1,000 feet of a

school (Counts 50, 57, 68, and 77–78, Judgment of Franklin at

2–3; Verdict at 17–20); 27 counts of unlawful use of a

communication facility (Counts 83–109, Judgment of Franklin

at 3; Verdict at 20–23); two counts of use or possession of a

firearm during a drug-trafficking offense (Counts 135 and 137,

Judgment of Franklin at 3; Verdict at 14–15); and two counts of

being a felon in possession of a firearm (Counts 136 and 138,

Judgment of Franklin at 3; Verdict at 14–15). Franklin was also

acquitted of several of the charges against him, most notably of

all murder, assault, and related charges (Counts 2, 129–32,

148–49, and 158–59, Verdict at 12, 14–15). In acquitting

Franklin of those charges, the jury found that the RICO

conspiracy did not involve murder (Count 2, Verdict at 12).

Franklin’s lieutenants were also convicted of both narcotics

and RICO conspiracies, as well as of various distribution

charges, but acquitted of violent crime charges. Unlike

Franklin, none of the lieutenants was charged with leading a

continuing criminal enterprise.

Blackson was convicted of one count of conspiracy to

distribute and possess with intent to distribute a controlled

substance (Count 1, Judgment of Blackson at 1; Verdict at

24–26); one count of RICO conspiracy (Count 2, Judgment of

Blackson at 2; Verdict at 26–27); eleven counts of distribution

of PCP, most occurring within 1,000 feet of a school (Counts 6,

9–10, 13, 16, 19, 23–24, 27, 33, and 42, Judgment of Blackson

at 2; Verdict at 27–29); two counts of possession with intent to

distribute ecstasy (Counts 7 and 43, Judgment of Blackson at 2;

Verdict at 27, 29); one count of using, carrying, or possessing a

firearm during a drug trafficking crime (Count 133, Judgment of

10

Blackson at 2; Verdict at 27); and one count of possession of a

firearm by a convicted felon (Count 134, Judgment of Blackson

at 2; Verdict at 27). The jury found that the RICO conspiracy

did not involve murder (Count 2, Verdict at 26).

Robinson, similarly, was convicted of one count of

conspiracy to distribute and possess with intent to distribute a

controlled substance (Count 1, Judgment of Robinson at 1;

Verdict at 30–31); one count of RICO conspiracy (Count 2,

Judgment of Robinson at 2; Verdict at 32); two counts of PCP

distribution, one within 1,000 feet of a school (Counts 36 and

58, Judgment of Robinson at 2; Verdict at 33); one count of

possession with the intent to distribute PCP (Count 73,

Judgment of Robinson at 2; Verdict at 33); and three counts of

unlawful use of a communication facility (Counts 96, 101, and

103, Judgment of Robinson at 2; Verdict at 34). The jury found

that the RICO conspiracy did not involve murder (Count 2,

Verdict at 32).

Wilson, the third lieutenant, was convicted of one count of

conspiracy to distribute and possess with an intent to distribute

a controlled substance (Count 1, Judgment of Wilson at 1;

Verdict at 41–42); one count of RICO conspiracy (Count 2,

Judgment of Wilson at 2; Verdict at 43); and three counts of

unlawful use of a communication facility (Counts 104–06,

Judgment of Wilson at 2; Verdict at 44). The jury found that the

RICO conspiracy did not involve murder (Count 2, Verdict at

43).

Finally, Simmons, the only foot soldier to be tried with

Franklin and the lieutenants, was convicted of one count of

conspiracy to distribute and possess with intent to distribute a

controlled substance (Count 1, Judgment of Simmons at 1;

Verdict at 35–36); one count of RICO conspiracy (Count 2,

Judgment of Simmons at 2; Verdict at 37); and three counts of

11

distribution of PCP within 1,000 feet of a school (Counts 8, 10,

and 30, Judgment of Simmons at 2; Verdict at 39–40). The jury

acquitted Simmons of all murder, assault, and weapons charges

(Counts 2, 129–32, 148–49, and 158–59, Verdict at 37–39). In

doing so, it found that the RICO conspiracy did not involve

murder (Count 2, Verdict at 37).

At sentencing, Franklin, Robinson, and Wilson were all

sentenced to life in prison. Judgment of Franklin at 4; Judgment

of Robinson at 3; Judgment of Wilson at 3. Blackson was

sentenced to a total of 35 years of imprisonment, followed by 10

years of supervised release. Judgment of Blackson at 3–4.

Simmons was sentenced to 22 years of imprisonment, followed

by five years of supervised release. Judgment of Simmons at

3–4.

D

On appeal, appellants raise eleven discrete challenges to

their convictions and sentences.

First, all appellants argue that their cross-examination of the

government’s key witness, Officer Donna Leftridge, was

improperly limited in violation of the Confrontation Clause.

Second, Blackson, Robinson, Simmons, and Wilson

contend that they were prejudiced by the district court’s

improper denial of their motion for severance. They argue that

statements made by Franklin’s counsel during his opening and

closing statements destroyed their ability to receive a fair and

impartial trial.

Third, all five appellants assert that the district court erred

in its jury instructions concerning the RICO conspiracy charge.

Specifically, they argue that the district court erred (1) in not

12

instructing the jury that a conviction for RICO conspiracy

requires a finding that a defendant participated in the operation

or management of the enterprise; (2) in not instructing the jury

that an “enterprise” must include an element of structure; and (3)

in not instructing the jury that continuity is a necessary element

of a “pattern of racketeering activity.”

Fourth, Simmons contends that the prosecution improperly

vouched for witness Roberta Moore. In doing so, Simmons

claims, the government improperly invoked the authority of both

the government and the court to support Moore’s veracity.

Fifth, Simmons argues that the district court abused its

discretion in denying his motion to strike testimony about his

lifestyle that he deems “extraordinarily prejudicial.”

Appellants’ Br. at 16.

Sixth, Robinson contends that the district court erred in

denying him permission to call two lay witnesses who were

familiar with drug dealing and with the 18th and M Street area

respectively. The district court ruled that the two witnesses’

testimony would amount to expert testimony under Rule of

Evidence 702. Robinson contends, however, that the two

witnesses were qualified to testify as lay witnesses based on

their firsthand experience of drug sales and of the 18th and M

area.

Seventh, Wilson argues that the district court erred in

denying his motion to suppress evidence obtained from a

warrantless search of his fiancée’s house. Wilson contends that

the consent furnished to police by his fiancée was involuntarily

procured. He argues that all evidence from the search was

obtained unlawfully and should have been suppressed.

13

Eighth, Franklin claims that the evidence presented at trial

was insufficient to support the jury’s finding that he engaged in

a continuing criminal enterprise. Specifically, he contends that

insufficient evidence was presented at trial to prove that he

organized, supervised, or managed five or more people.

Ninth, Blackson claims that the district court erred in

entering judgment against him for a count of which he was not

convicted.

Tenth, Simmons argues that the district court erred both

procedurally and substantively in imposing an above-Guidelines

sentence on him. Procedurally, he contends first that the district

court impermissibly relied on his history of drug abuse in

increasing his sentence and, second, that the district court failed

to provide him with a written statement of the reasons for the

variance. Substantively, he alleges that the district court failed

to take into account aspects of his personal history that would

have counseled in favor of a lower sentence.

Finally, Robinson, Wilson, and Blackson contend that the

district court based their sentences on erroneous factual findings.

First, all three appellants claim the district court incorrectly

attributed 30 or more kilograms of PCP to each of them.

Second, Wilson and Blackson contend that the district court

incorrectly imposed a three-level Guideline enhancement for

their role in the conspiracy.

II

Appellants contend their rights under the Confrontation

Clause of the Sixth Amendment to the Constitution were

violated in two respects: (A) when the district court limited

cross-examination of undercover police officer Donna Leftridge

by failing to order the government to disclose during trial

14

information it had failed to turn over as required by Brady v.

Maryland, 373 U.S. 83 (1963), regarding an ongoing

investigation of Officer Leftridge; and (B) when the district

court prohibited all questioning regarding Officer Leftridge’s

alleged inappropriate social relationship with appellant John

Franklin. Appellants maintain that they were consequently

deprived of “all opportunities to impeach Leftridge’s

credibility.” Appellants’ Br. at 23.

The Sixth Amendment provides: “In all criminal

prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him . . . .” U.S. CONST.

amend. VI. The Amendment guarantees a defendant the right to

cross-examine the witnesses against him or her, and it is “the

principal means by which the believability of a witness and the

truth of his testimony are tested.” Davis v. Alaska, 415 U.S.

308, 315–16 (1974). The district court must “give a defendant

a ‘realistic opportunity to ferret out a potential source of bias.’”

United States v. Davis, 127 F.3d 68, 70 (D.C. Cir. 1997)

(quoting United States v. Derr, 990 F.2d 1330, 1334 (D.C. Cir.

1993)). “[A] criminal defendant states a violation of the

Confrontation Clause by showing that he was prohibited from

engaging in otherwise appropriate cross-examination designed

to show a prototypical form of bias on the part of the witness,

and thereby ‘to expose to the jury the facts from which jurors .

. . could appropriately draw inferences relating to the reliability

of the witness.’” Delaware v. Van Arsdall, 475 U.S. 673, 680

(1986) (quoting Davis v. Alaska, 415 U.S. at 318). Our review

of the district court’s legal conclusions regarding the

Confrontation Clause is de novo. United States v. Carson, 455

F.3d 336, 362 (D.C. Cir. 2006).

15

A

Appellants and their counsel did not learn until March 28,

2006, in the middle of the trial, that Leftridge had been

suspended by the Internal Affairs Division (“IAD”) of the

Metropolitan Police Department (“MPD”) due to an ongoing

investigation. The day before, on March 27, prosecutors ex

parte informed the district court that Leftridge had been

suspended with pay by IAD due to [REDACTED]

Leftridge had

confirmed to the prosecutors that she did not know the basis of

the investigation. The prosecutors advised the district court that

Leftridge was under investigation [REDACTED]

Leftridge was placed on the “Lewis List”

of MPD officers who are under investigation.1

The district court concluded that the nature of the ongoing

investigation of Leftridge was of limited relevance to her

credibility or any potential bias but directed the prosecutors to

disclose her status to defense counsel. The following day,

March 28, 2006, the government disclosed to defense counsel,

in writing, that: (1) IAD had suspended Leftridge with pay in

early December 2005; (2) Leftridge was on the Lewis list; (3)

Leftridge knew she was under investigation but not why or by

whom; and (4) Leftridge was not under investigation by the U.S.

Attorney’s Office for the District of Columbia. The

1

See United States v. (Walter) Bowie, 198 F.3d 905, 907–08

(D.C. Cir. 1999); Lewis v. United States, 408 A.2d 303 (D.C. 1979).

16

government’s disclosure did not mention [REDACTED]

Defense counsel sought additional disclosure pursuant to

Brady, 373 U.S. 83, and Giglio v. United States, 405 U.S. 150

(1972), or, failing that, an in camera review by the district court

of the evidence supporting the government’s limited disclosure.

The district court denied the request for additional disclosure,

stating it had already conducted an in camera review. However,

on March 30, 2006, the district court requested confirmation of

the ex parte information [REDACTED]

In United States v. Bagley, 473 U.S. 667 (1985), the

Supreme Court held that the withholding of potentially relevant

impeachment evidence does not implicate the Confrontation

Clause in the sense of “any direct restriction on the scope of

cross-examination.” Id. at 678. Instead, “the constitutional

error, if any,” involves “the Government’s failure to assist the

defense by disclosing information that might have been helpful

in conducting the cross-examination.” Id. This latter duty arises

under the Due Process Clause of the Fifth Amendment. See id.

at 675; see also Brady, 373 U.S. at 86. As a plurality explained

in Pennsylvania v. Ritchie, 480 U.S. 39 (1987), the

Confrontation Clause did not create “a constitutionally

compelled rule of pretrial discovery” of information that might

be useful to the defense in preparing for trial. Id. at 52. Instead,

“the right to confrontation is a trial right, designed to prevent

improper restrictions on the types of questions that defense

17

counsel may ask during cross-examination.” Id. (emphasis in

original). This court has adopted the plurality’s holding. United

States v. Tarantino, 846 F.2d 1384, 1415–16 (D.C. Cir. 1988).

Based on their access to the ex parte information of March 27,

2006 for the first time after filing their opening brief, appellants

have added to their Confrontation Clause contention a Brady

claim regarding the investigation of Leftridge.

The Supreme Court held in Brady that “the suppression by

the prosecution of evidence favorable to an accused upon

request violates due process where the evidence is material

either to guilt or to punishment, irrespective of the good faith or

bad faith of the prosecution.” 373 U.S. at 87. Thereafter the

Court held that such disclosure is mandatory regardless of

whether a defendant requests it, United States v. Agurs, 427 U.S.

97, 107 (1976), and that impeachment evidence must also be

disclosed, see Bagley, 473 U.S. at 676; Giglio, 405 U.S. at 154.

To determine whether there has been a Brady violation, courts

apply a three-part test. “The evidence at issue must [1] be

favorable to the accused, either because it is exculpatory, or

because it is impeaching; that evidence must [2] have been

suppressed by the [government], either willfully or

inadvertently; and [3] prejudice must have ensued.” Strickler v.

Greene, 527 U.S. 263, 281–82 (1999). For prejudice to have

ensued, there must be a “reasonable probability that, had the

evidence been disclosed to the defense, the result of the

proceeding would have been different,” id. at 280 (internal

quotation marks omitted), i.e., “the favorable evidence could

reasonably be taken to put the whole case in such a different

light as to undermine confidence in the verdict,” Kyles v.

Whitley, 514 U.S. 419, 435 (1995); see Bagley, 473 U.S. at 682.

Appellants contend that the district court erred by failing to

order the government to make two required disclosures: (1) the

subject matter of the investigation of Leftridge and (2)

18

[REDACTED] This court has held that “to

be ‘material’ under Brady, undisclosed information or evidence

acquired through that information must be admissible.” Derr,

990 F.2d at 1336; see United States v. Johnson, 592 F.3d 164,

171 (D.C. Cir. 2010); see also Wood v. Bartholomew, 516 U.S.

1, 6 (1995) (per curiam). Our review of the district court’s

evidentiary rulings is for abuse of discretion. United States v.

Lin, 101 F.3d 760, 768 (D.C. Cir. 1996).

With regard to non-disclosure of the subject matter of the

investigation, the government persuasively maintains that there

was no Brady violation because the undisclosed information

would not have been admissible at trial, and appellants do not

maintain that their knowledge of it could have led to admissible

evidence. Although the defense might have sought to use the

undisclosed information about the subject matter of the

investigation to impeach Leftridge pursuant to Federal Rule of

Evidence 608(b),2 the district court would properly have ruled

such cross-examination improper because the subject matter of

the internal investigation [REDACTED]

would not have been probative

of Leftridge’s truthfulness. Without additional evidence of

wrongdoing beyond bald assertions [REDACTED]

, impeachment would have been

2

Rule 608(b) provides in relevant part:

Specific instances of the conduct of a witness, for the purpose of

attacking or supporting the witness’ character for truthfulness .

. . may . . . in the discretion of the court, if probative of

truthfulness or untruthfulness, be inquired into on

cross-examination of the witness (1) concerning the witness’

character for truthfulness or untruthfulness, or (2) concerning the

character for truthfulness or untruthfulness of another witness as

to which character the witness being cross-examined has

testified.

19

based on unproven allegations. As this court stated in United

States v. Morrison, 98 F.3d 619, 628 (D.C. Cir. 1996), “the mere

filing of a complaint [against a witness] is not probative of

truthfulness or untruthfulness.” (emphasis in original) (internal

quotation marks omitted).

Additionally, had the defense sought admission of the

subject matter of the investigation pursuant to Federal Rule of

Evidence 404(b)3 to show Leftridge’s motive or bias, see

generally United States v. Crowder, 141 F.3d 1202, 1206,

1209–10 (D.C. Cir. 1998) (en banc), it is difficult to understand

how the subject matter, rather than the fact of the existence of

the investigation, would have assisted in portraying Leftridge as

biased. Appellant William Simmons’ counsel cross-examined

Leftridge about her suspension without pay and the suspension

of her police powers as a result of the ongoing investigation,

eliciting her admission to the suspension but also her denial of

knowledge of the basis for the investigation. Presumably, based

upon her suspension, Leftridge could have been motivated to

testify falsely against appellants in order to curry favor with the

government. But the fact that she was being investigated at all

provided that potential motive. Even assuming information

about the subject matter of the investigation was probative of

bias, the district court would properly have excluded cross-

examination pursuant to Rule 403 because “its probative value

[wa]s substantially outweighed by the danger of unfair

3

Rule 404(b) provides in relevant part:

Evidence of other crimes, wrongs, or acts is not admissible to

prove the character of a person in order to show action in

conformity therewith. It may, however, be admissible for other

purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or

accident.

20

prejudice.” FED. R. EVID. 403. As the district court concluded,

the “prejudice to this officer given the uncertainty of the

[allegations] is quite high, the prejudice to her career and her

credibility is quite high.” Mar. 27, 2006 Ex Parte Tr. at 10.

That risk of prejudice would have substantially outweighed the

minimal probative value of the evidence.

By contrast, the undisclosed information [REDACTED]

would have been admissible pursuant

to Rule 404(b) to show motive and bias. See United States v.

(Juan) Bowie, 232 F.3d 923, 930 (D.C. Cir. 2000).

[REDACTED]

On direct

examination Leftridge denied she had been told why she was

under investigation and why her police powers had been

suspended; on cross-examination she acknowledged that she

believed she was under investigation by IAD. These statements

do not rule out Leftridge’s knowledge [REDACTED]

Despite Leftridge’s apparent knowledge [REDACTED]

, the government

disclosed to the defense only that she was suspended by IAD

and was “under investigation.” Defense counsel understood the

disclosure to mean that the investigation was being conducted

by IAD only, as evidenced, for example, by defense counsel’s

cross-examination of Leftridge: “You are being investigated by

the internal affairs division of the Metropolitan Police

21

Department?” Apr. 5, 2006 AM Trial Tr. at 77. Upon obtaining

access to sealed materials after filing their opening brief,

appellants contended in their reply brief that requiring Leftridge

to admit [REDACTED]

would have strengthened their argument to

the jury that Leftridge’s testimony was biased due to an

“incentive to curry favor with the government.” Reply Br. at

13–14, 16. This argument is compelling. [REDACTED]

It is true that the government disclosed to the defense that

the U.S. Attorney’s Office for the District of Columbia was not

investigating Leftridge, thus lessening the potential desire for

Leftridge to curry favor with the prosecutors who were

conducting appellants’ prosecution. But this disclosure also

implied, as defense counsel reasonably understood,

[REDACTED]

In any event, this aspect of the disclosure

cannot excuse the government’s non-disclosure [REDACTED]

The defense was entitled to

22

information that would strengthen its impeachment of Leftridge,

whom the defense viewed as a key government witness because

she interpreted video and audio tapes of the defendants and also

engaged in repeated undercover drug purchases with several

defendants, including appellants (except Wilson). See United

States v. (Walter) Bowie, 198 F.3d 905, 909 (D.C. Cir. 1999).

Given its relevance as impeachment evidence, the government

had a duty under Brady to make a timely pretrial disclosure to

the defense [REDACTED]

See United States v. Pollack, 534 F.2d

964, 973 (D.C. Cir. 1976). The district court, in turn, erred in

limiting cross-examination of Leftridge by failing to order the

government to disclose this admissible evidence to the defense

during trial.

The question remains whether the undisclosed evidence

[REDACTED] was “material,” i.e.,

was there “a reasonable probability that the result of the trial

would have been different if the suppressed [evidence] had been

disclosed to the defense.” Strickler, 527 U.S. at 289 (internal

quotation marks omitted). The “materiality inquiry is not just a

matter of determining whether, after discounting the inculpatory

evidence in light of the undisclosed evidence, the remaining

evidence is sufficient to support the jury’s conclusions.” Id. at

290. Instead, a court must ask whether “the favorable evidence

could reasonably be taken to put the whole case in such a

different light as to undermine confidence in the verdict.” Kyles,

527 U.S. at 435.

As an initial matter, it is worth noting that a reasonable jury

could easily have concluded that Leftridge [REDACTED]

“would be careful not to worsen

[her] predicament” by perjuring herself, see (Walter) Bowie, 198

F.3d at 909. Secondly, as appellants must concede, and as the

district court found, much of Leftridge’s testimony was

23

corroborated by physical evidence including video and audio

tapes, and to the extent Leftridge testified to what was also

demonstrated by physical evidence, her credibility would be

unimpaired. See id. at 911. Thirdly, given the physical

evidence corroborating much of Leftridge’s testimony,

appellants cannot show materiality under Brady by claiming that

any bias would have affected the entirety of her testimony.

Instead, appellants must contend that Leftridge was careful to

mislead the jury only where her testimony would not go beyond

what the physical evidence demonstrated — a degree of

tailoring that would appear implausible.

In any event, we conclude, upon review of the likely effect

of informing the jury of the undisclosed evidence [REDACTED]

, that there is not a reasonable

probability that the result of the trial would have been different

for any appellant. Leftridge testified regarding the drug and

RICO conspiracies (Counts 1 and 2), of which each appellant

was convicted; the continuing criminal enterprise (Count 3) of

which Franklin was convicted; and the drug distribution counts

of which Franklin, Blackson, Robinson, and Simmons were

convicted. As regards the drug distribution counts, Franklin

conceded his guilt, Wilson faced no charges, and Robinson did

not contest the single count against him, where he is plainly

visible on videotape. Therefore, only the drug distribution

convictions of Blackson and Simmons could even theoretically

be called into question through the impeachment of Leftridge

with the undisclosed evidence.

1

As to the convictions of all appellants for drug conspiracy

(Count 1) and RICO conspiracy (Count 2), and the conviction of

Franklin for continuing criminal enterprise (Count 3), the non-

disclosure [REDACTED] was

24

not material. Each appellant was convicted of conspiracy to

distribute and possess with intent to distribute one kilogram or

more of phencyclidine (“PCP”), and 50 grams or more of

cocaine base in violation of 21 U.S.C. §§ 846, 841(a)(1),

841(b)(1)(A)(iii), (iv). The volume of PCP distributed, 15–20

gallons — equivalent to 39–52 kilograms — was proven

through the testimony of Franklin’s supplier, Herbert Martin.

Each appellant’s involvement was proven in multiple ways

without Leftridge’s testimony.

• Count 1. The government demonstrated the existence of

the conspiracy largely through evidence from cooperating

members of the M Street Crew, through wiretaps of Franklin’s

cellphone, and through the physical evidence accumulated

during Leftridge’s undercover buys. For instance, cooperator

Ronnie Tucker identified Joseph Blackson, “Mike” Simmons,

“Dee” Robinson, and “Shug” Wilson as selling drugs, and

recognized John Franklin as the leader of the group. Tucker also

testified that “we all sold drugs together. Besides that [we]

watch each other’s back, make sure everybody was all right.”

Apr. 24, 2006 PM Trial Tr. at 4–5. Similarly, cooperator

Michael Abney testified that the M Street Crew would do “a

variety of things” together including “selling drugs.” May 2,

2006 AM Trial Tr. at 9. He named Franklin as the leader,

Blackson, Robinson, and Wilson as Franklin’s lieutenants, and

Simmons as Franklin’s most loyal foot soldier. The wiretap,

audio, and video evidence corroborated the testimony of the

cooperators, who were impeached on cross-examination, and

provided ample evidence of conspiracy. For example, according

to the transcript of Franklin’s wiretapped cellphone call on

August 11, 2003, Franklin told Tucker to buy PCP from

Robinson rather than himself. And on the November 21, 2002

videotape recording, Leftridge bought PCP at 18th and M

Streets from someone (not visible on the recording) who

identified himself as “Joe” and who eventually gave her his

25

cellphone number. Later, on January 7, 2003, when Leftridge

came back to the area to buy from “Joe,” she instead bought

PCP from John Franklin, who is clearly visible on videotape,

and referred to “Joe” as his brother. When Franklin exited

Leftridge’s car, he yelled “Mike” and another individual came

to the passenger window and delivered a vial. That individual’s

face is plainly visible. On April 10, 2003, following a cellphone

conversation with Franklin, that same individual is seen on

videotape getting into the car to deliver drugs to Leftridge.

Again, his face was plainly visible, and a juror would have been

able to recognize him in both instances as Simmons.

The above represents only a small part of the evidence

demonstrating a conspiracy under 18 U.S.C. § 846. Even were

Leftridge’s testimony discredited by the undisclosed evidence,

there is not a reasonable probability of a different verdict on

Count 1 for any appellant.

• Count 2. Similarly, each appellant was convicted of

conspiracy under RICO, 18 U.S.C. § 1962(d). Pursuant to the

district court’s instructions, the jury had to find: (1) an enterprise

— in this case an illegal association in fact — existed; (2) the

enterprise engaged in or affected interstate commerce; (3)

individual defendants knowingly and intentionally agreed with

another person to conduct the affairs of the enterprise; and (4)

each defendant knowingly and willfully agreed that he or some

other member of the conspiracy would commit at least two

racketeering acts. See infra Part IV. Elements one and three

appear to have been proven primarily through cooperators. For

instance, Abney described the structure of the M Street Crew,

and Tucker described each of the five appellants as “members”

of M Street. Leftridge’s testimony as to individual buys added

little information about the M Street Crew’s structure, but the

physical evidence accompanying her buys did corroborate the

cooperators’ testimony. For example, on March 26, 2003

26

Blackson told Leftridge that “everybody . . . buy from us.” Mar.

26, 2003 Wiretap Tr. at 4. As to element four, impeachment of

Leftridge’s testimony with the undisclosed information would

have done nothing to undermine the evidence that each appellant

committed two or more racketeering acts. As noted, Franklin

conceded his guilt as to all of the drug distribution charges.

Wilson was not charged with drug distribution, so the two

racketeering acts of which the jury found him guilty could not

have involved Leftridge’s undercover buys. Robinson’s guilt

was plain on videotape showing the May 21, 2003 sale with

which he was charged, his sole possible racketeering act related

to Leftridge’s undercover work. Blackson is readily visible on

videotape of the March 26, 2003 undercover buy and gave

Leftridge his cellphone number and referred to himself as “Joe”

during the November 21, 2002 buy, effectively identifying

himself as the seller. Simmons is twice seen on videotape

delivering drugs to Leftridge; he conceded guilt as to the April

10, 2003 buy.

Again, the above are only examples of the evidence of guilt

that render a different result on Count 2 highly improbable even

were the jury, based on the undisclosed evidence, to discount

Leftridge’s testimony.

• Count 3. Franklin was charged with being the principal

administrator, organizer, or leader of a continuing criminal

enterprise, in violation of 21 U.S.C. § 848. This count required

the government to prove that he supervised five or more

persons. Evidence unrelated to Leftridge’s testimony showed

that Franklin supervised five or more people. See infra Part IX.

Although appellants suggest that Leftridge provided the only

evidence that Franklin and Blackson worked together and that

Franklin directed other members of the Crew to deliver PCP to

a buyer, this ignores the physical videotape evidence of

Leftridge’s buys. For instance, on January 7 and April 10, 2003,

27

Simmons’ face is visible on videotape as he delivered drugs

immediately after Leftridge spoke to Franklin. And on January

22, 2003, after Leftridge contemporaneously identified “Joe”

[Blackson] and asked him for a “whole one,” Franklin got into

Leftridge’s car, took Leftridge’s money, and asked her why

“Joe” gave her a good price and later, “what’s up with you and

Joe . . . what’s up with you and my little brother?” Jan. 22, 2003

Wiretap Tr. at 1, 3, 6.

The physical evidence thus demonstrates, without

Leftridge’s testimony, that Simmons acted as Franklin’s runner

and that Blackson and Franklin worked together. Undermining

Leftridge’s credibility through impeachment with the

undisclosed evidence would therefore have had no impact on

Franklin’s conviction of Count 3. Although Franklin challenges

the sufficiency of the evidence that he managed at least five

people, see infra Part IX, his Count 3 conviction was not based

in large part on Leftridge’s testimony and, to the extent her

testimony related to the Count 3 charge, it is corroborated by

physical evidence.

2

Joseph Blackson was convicted of eleven counts of drug

distribution, from November 21, 2002 (Count 6) through July

16, 2003 (Count 42). According to the government’s brief, and

uncontested in appellants’ reply brief, Blackson acknowledged

his guilt of distribution on March 26 and April 30, 2003 (Counts

27 and 33). Further, neither at trial nor on appeal has Blackson

contested the identification of his voice with respect to the

recorded undercover buys by Leftridge or the wiretapped

cellphone calls. The transcripts of those recorded buys and calls

identify Blackson as selling drugs to Leftridge on eight

occasions (Counts 9, 10, 13, 16, 19, 23–24, and 42). During the

November 21, 2002 sale (Count 6), Blackson’s voice is audible

28

and matches the voice on the audiotape for March 26, 2003

(Count 27), a count of which Blackson acknowledged guilt.

And during the same November 21, 2002 sale, Blackson gave

Leftridge his cellphone number and identified himself as “Joe.”

Other recorded evidence also supports Blackson’s convictions.

On January 15, 2003 (Count 9), Blackson noted he had been “on

house arrest for a minute,” Jan. 15, 2003 Wiretap Tr. at 2, which

corresponded with his arrest on January 3, 2003. On several

occasions, Leftridge greeted Blackson by name (Counts 16, 23,

and 42), and she frequently identified Blackson

contemporaneously to her supervisors before or after buying

drugs (Counts 10, 13, and 24).

As these examples indicate, the evidence against Blackson

on drug distribution was overwhelming, and there is no

reasonable probability that any of the distribution verdicts would

have been different had Leftridge’s testimony been impeached

by the undisclosed evidence.

3

Appellants contend that impeachment of Leftridge with the

undisclosed evidence would have especially undermined the

evidence against William Simmons for distribution of PCP

within 1,000 feet of a school on January 7 and 22 and April 10,

2003 (Counts 8, 10, and 30). However, Simmons is visible on

videotape handing drugs to Leftridge on April 10, 2003.

Simmons also is visible on videotape of the sale on January 7,

2003, when Franklin exited the car, shouted “Mike,” and

Simmons appeared at the passenger door to deliver a vial of

drugs to Leftridge.

Appellants note that on January 7 and April 10 the police

contemporaneously had difficulty identifying Simmons. But

this is unremarkable because Leftridge testified that at the time

29

of the April 10, 2003 buy she had not yet heard of Simmons. It

is a different question whether there is a reasonable probability

that a jury, viewing Simmons in the courtroom and on

videotape, would not have convicted him of Counts 8, 10, and

30 had Leftridge’s testimony been impeached by the undisclosed

evidence. Given the unambiguous physical evidence, there is

not such a reasonable probability. This is true even as to the

January 22, 2003 buy (Count 10), which is a closer call because

the face of the individual on videotape delivering the drugs to

Leftridge was partially obscured by a ski mask. Even without

the videotape and Leftridge’s testimony, however, the evidence

showed: (1) During that buy, Franklin stated that the person

about to deliver the PCP was his “cousin,” “Mike,” Jan. 22,

2003 Wiretap Tr. at 6; (2) On April 10, 2003, the next time he

saw Leftridge, Simmons acknowledged that he had “done some

business” with her before “round on 18th Place,” Apr. 10, 2003

Wiretap Tr. at 3; and (3) cooperators testified that Simmons was

Franklin’s runner. Although the credibility of the cooperators

was impeached, their identification of Simmons as Franklin’s

runner is supported by evidence that Simmons delivered drugs

to Leftridge on two other occasions. Leftridge’s testimony that

Simmons delivered the drugs on January 22 was not inconsistent

with any of the physical evidence. Moreover, the evidence that

Simmons was Franklin’s runner is secondary to the most

damning evidence against Simmons on Count 10: the videotape

of Franklin’s contemporaneous identification of his cousin,

“Mike.” With that evidence — alongside the evidence of

Simmons’ previous history as Franklin’s runner and two other

deliveries to Leftridge — there is not a reasonable probability

that a jury would have failed to convict Simmons of the January

22, 2003 sale if Leftridge’s testimony had been impeached by

the undisclosed evidence.

Accordingly, appellants cannot succeed on either their first

Confrontation Clause contention or their Brady claim. The

30

undisclosed evidence regarding the investigation of Leftridge

was not “material” under Brady. And, in view of the

overwhelming evidence of appellants’ guilt, any error by the

district court in limiting cross-examination by failing to order

the government to provide the defense with the undisclosed

evidence regarding the investigation of Leftridge was harmless

beyond a reasonable doubt, see Chapman v. California, 386 U.S.

18, 24 (1967).

B

Appellants contend that their rights under the Confrontation

Clause were also violated because the district court improperly

prohibited them from questioning Leftridge about an

inappropriate social relationship that she had with appellant John

Franklin while she was working undercover in the investigation

of the M Street Crew.

During the trial, on March 30, 2006, Franklin’s counsel

made an ex parte proffer to the district court that Franklin

claimed that he and Leftridge had a social relationship beyond

the scope of her role as an undercover officer. Franklin claimed

that he and Leftridge had met about six times: For instance,

they had dinner at Union Station, they went to the movies

together on at least one occasion, and Franklin had loaned

Leftridge $1,000, which she repaid approximately one week

later. In support of the proffer, Franklin’s counsel stated that

Franklin was willing to testify under oath out of the presence of

the jury about the social contacts. Further, his counsel pointed

to purportedly corroborating evidence, stating that wiretap

recordings indicated Franklin had seen Leftridge in her personal

car; recordings of Franklin asking Leftridge what car she was

driving showed, counsel asserted, that there had been contact

beyond the scope of the undercover investigation. Franklin’s

counsel argued this evidence would “tend to show that

31

[Leftridge] is not reliable,” or “at a minimum [had] terribly bad

judgment,” and that “perhaps there’s some kind of bias to

protect herself at this point should those allegations be true.”

Apr. 3, 2006 AM Trial Tr. at 4. After the district court informed

the prosecutor of Franklin’s proffer, the prosecutor reported to

the district court that Leftridge had “flatly, categorically

denie[d]” Franklin’s allegations and would deny them on the

witness stand. Mar. 30, 2006 PM Trial Tr. at 20.

The district court ruled it would not allow any cross-

examination of Leftridge about the alleged social relationship.

While not assessing the credibility of the allegations, the district

court reasoned that whether Leftridge exercised bad judgment

in having a social relationship with a target “doesn’t go directly

to her credibility or her truthfulness.” Apr. 3, 2006 AM Trial Tr.

at 6. In the district court’s view, because “everything to which

[Leftridge] is testifying is supported by video and audio tape,”

little room was left to impeach her credibility. Id. Our review

is for abuse of discretion, see Lin, 101 F.3d at 768, not for plain

error, as the government suggests, because the district court

cited authority addressing limitations on cross-examination —

namely Lin and United States v. Whitmore, 359 F.3d 609 (D.C.

Cir. 2004) — making it “apparent from the context,” FED. R.

EVID. 103(a)(1), that the defense was making a Confrontation

Clause claim.

The Supreme Court has instructed with regard to cross-

examination to expose potential bias of a prosecution witness,

that “trial judges retain wide latitude insofar as the

Confrontation Clause is concerned to impose reasonable limits

on such cross-examination based on concerns about, among

other things, harassment, prejudice, confusion of the issues, the

witness’ safety, or interrogation that is repetitive or only

marginally relevant.” Delaware v. Van Arsdall, 475 U.S. at 679.

See Delaware v. Fensterer, 474 U.S. 15, 20 (1985). So too, in

32

Lin, this court required defense counsel to “have a reasonable

basis for asking questions on cross-examination which tend to

incriminate or degrade the witness and thereby create an

unfounded bias which subsequent testimony cannot fully

dispel.” 101 F.3d at 768 (internal quotation marks omitted). As

a general matter, “the questioner must be in possession of some

facts which support a genuine belief that the witness committed

the offense or the degrading act to which the questioning

relates.” Id. (quoting United States v. Fowler, 465 F.2d 664, 666

(D.C. Cir. 1972)); see Whitmore, 359 F.3d at 622. Because

testimony that Leftridge had an inappropriate social relationship

with the target of an investigation she was helping to conduct

would degrade her, the issue is whether the district court

impermissibly impinged on appellants’ confrontation rights in

concluding that the defense did not have a reasonable basis for

such cross-examination.

The parties disagree about whether the defense proffer

provided a “reasonable basis” to allow cross-examination of

Leftridge and whether Lin applies. In Lin, the defendant sought

to impeach a government witness, Guan Huan Chen, through

cross-examination about Chen’s involvement in a gambling

business located in Chinatown. 101 F.3d at 767. Lin alleged

that Chen was biased against him because Chen sought “to

remove Lin from the Chinatown gambling scene.” Id. The

district court “offered to hold a hearing on the matter outside the

presence of the jury,” but when defense counsel refused, the

district court ruled that the proffer by defense counsel was not,

standing alone, enough to permit the defendant “to initiate a

highly prejudicial line of cross-examination.” Id. This court

affirmed. Recognizing that “[t]he questioning that [defense

counsel] sought to pursue would imply that the [prosecution’s]

witness was involved in illegal activities, and thus would have

been highly prejudicial,” this court concluded that defense

counsel had not met his burden to “show that the proposed line

33

of cross-examination followed a lead reasonably suggested by

other facts in evidence.” Id. at 768. The court noted the defense

refusal to agree to a hearing outside the presence of the jury and

the district court’s willingness to hear other evidence supporting

the defense theory. Id.

Appellants point out that Franklin’s counsel offered more

factual support for the cross-examination of Leftridge than did

Lin’s counsel in seeking to cross-examine a government

witness. Unlike Lin, Franklin was willing to testify outside the

presence of the jury,4 and the defense proffered recorded

conversations during which Franklin had asked Leftridge on two

occasions about the type of car she was driving, independently

indicating, according to his counsel, that Franklin knew about

her personal car and not just the government car she used for

undercover drug buys. The import of the tapes is not altogether

clear;5 they may simply indicate that Franklin did not realize

4

The government’s position that this offer was withdrawn

when Franklin’s counsel advised the district court that “we have

nothing to add to the proffer we made [last] Thursday,” Apr. 3, 2006

AM Trial Tr. at 4, is not a fair reading of the transcript. Although the

district court did not accept Franklin’s offer to testify, the offer was

made and reaffirmed by his counsel.

5

On April 10, 2003, when Leftridge called Franklin to set up

an undercover buy, he asked her “[w]hen did I give you my number?”

before appearing to realize to whom he was speaking and asking, “Oh.

You drive the Acura?” Apr. 10, 2003 Wiretap Tr. at 1. During the

conversation Leftridge mocks him: “You ain’t even know who you

was talking too [sic]. What you thought it was one of your girls

again?” Id. at 2. The second reference to Leftridge’s car, on May 21,

2003, comes from Leftridge’s side of a conversation: “Huh? Yeah.

I’m on the second one. Awright. It’s, it’s gray. It’s like a dark gray.

Yeah. Awright. Awright. Bye.” May 21, 2003 Wiretap Tr. at 1.

Leftridge testified that “[h]e was asking what car I was driving,” and

34

with whom he was speaking when Leftridge telephoned him and

needed to know the identity of the car she was driving so he

could tell one of the M Street Crew to give her a vial of drugs

when she arrived on the scene. Although the district court

understood counsel’s reference to late 2003 to refer to

Leftridge’s request for the $1,000 loan, the government suggests

on appeal that there is some uncertainty about when the alleged

social relationship occurred.6 Of course, any uncertainty could

have been explored and potentially resolved had the district

court agreed to hear from Franklin outside the presence of the

jury, and his testimony would have provided the district court

with facts on which allowing cross-examination could turn.

confirmed that she was referring to the same Acura in which she had

conducted previous undercover drug buys. Apr. 3, 2006 PM Trial Tr.

at 33.

6

The trial transcript of March 30, 2006 PM at 6 reads:

Franklin’s counsel: The concern, Your Honor, is,

given this information, we clearly believe and submit that we

need to know more about what Officer Leftridge is being

investigated for to the extent that that information is

available.

And in addition, if there is no information, some

[defense] counsel intend to examine Officer Leftridge with

regard to these contacts with Mr. Franklin in which it is

suggested that money was borrowed from him during this

investigation.

This contact, I should say, lastly, was initiated,

according to Mr. Franklin, by Officer Leftridge, who called

him on his telephone, the phone that he would have been

using when she was dealing with him. That call came in late

2003. (emphasis added)

35

We need not decide whether Lin applies where a defendant

agrees to testify under oath about facts supporting a proffered

line of cross-examination. Assuming the district court erred in

denying any cross-examination of Leftridge about an

inappropriate social relationship, appellants cannot show the

requisite prejudice. Unlike harmless error analysis, which

focuses on the totality of evidence against a defendant, for

Confrontation Clause purposes the “prejudice inquiry . . .

[focuses] on the particular witness, not on the outcome of the

entire trial.” Delaware v. Van Arsdall, 475 U.S. at 680. Even if

the district court had concluded that there was a reasonable basis

for cross-examining Leftridge about her alleged social

relationship with Franklin, appellants fail to explain how the

social relationship would be relevant to Leftridge’s penchant for

truthfulness, as would be necessary to use the evidence pursuant

to Federal Rule of Evidence 608(b). As the district court

observed, bad judgment is not the same as untruthfulness.

Similarly, had defense counsel cross-examined Leftridge about

the alleged social relationship, the prosecutor had reported that

Leftridge would deny its existence, and the defense would have

been stuck with her denial because specific instances of

untruthfulness are not provable by extrinsic evidence under Rule

608(b), see Whitmore, 359 F.3d at 622. Even if Leftridge

admitted having dinner, going to the movies, and borrowing

money from Franklin, much of her testimony was corroborated

by the physical evidence, and she might have offered a

reasonable explanation for the social relationship relating to her

continuing viability as an undercover officer in the M Street

Crew investigation. Similarly, had the defense sought admission

of evidence of the social relationship pursuant to Rule 404(b) to

demonstrate bias, because of Leftridge’s motive to curry favor

with the government, it is unclear how this would assist the

defense. Even if extrinsic evidence would have been admissible

to prove the social relationship, Franklin’s counsel stated that

Franklin would testify outside the presence of the jury only if his

36

testimony could not be used against him at trial and, in view of

Franklin’s admissions of drug sales with Leftridge, that Franklin

did not intend to pursue the matter at trial. Absent an evidentiary

basis, a properly instructed jury could not use the questions

Leftridge was asked on cross-examination to infer bias. Cf.

Morrison, 98 F.3d at 628; United States v. Gartmon, 146 F.3d

1015, 1026 (D.C. Cir. 1998).

For these reasons, assuming the district court erred in

barring cross-examination of Leftridge about an inappropriate

social relationship, appellants fail to show prejudice under the

Confrontation Clause. With overwhelming evidence of

appellants’ guilt, see supra Part II.A, any error in preventing this

impeachment of Leftridge was harmless beyond a reasonable

doubt. See Chapman, 386 U.S. at 24. To the extent appellants

contend that the district court abused its discretion under the

federal rules of evidence, any error is harmless because it would

not have “had substantial and injurious effect or influence in

determining the jury’s verdict,” Kotteakos v. United States, 328

U.S. 750, 776 (1946).

III

The appellants other than John Franklin contend that the

district court abused its discretion in denying their motions for

severance of their trials. In particular, they argue that the court’s

refusal to grant severance after Franklin’s counsel conceded guilt

on the drug distribution and communication facility counts

prejudiced their right to a fair trial.

Prior to his opening statement, Franklin’s counsel informed

the court and other defense attorneys that Franklin intended to

concede his guilt on the substantive drug distribution and

communication facility counts. Several of these counts involved

other defendants: Blackson was charged with Franklin with two

37

of the PCP distribution counts (Counts 10 and 42); Robinson was

charged with two PCP distribution counts and three

communication facility counts (Counts 36, 58, 96, 101, and 103);

Simmons was charged with three distribution counts (Counts 8,

10, and 30); and Wilson was charged with three communication

facility counts (Counts 104–06). Indict. at 40–49. These

defendants each moved to sever, arguing that Franklin’s

admissions, offered without giving them any opportunity to

cross-examine him, would prejudice their right to a fair trial.

The court denied their motions, but instructed Franklin’s counsel

to make it “explicitly clear” that Franklin’s admissions were not

“an admission that anyone else engaged in drug dealing with him

at any time.” Mar. 9, 2006 PM Trial Tr. at 9. In his opening

statement, Franklin’s counsel stated that Franklin admitted guilt

on the PCP and ecstasy distribution counts, the communication

facility counts, and the felon-in-possession-of-a-firearm count.

Id. at 15, 31. He also advised the jury that he did not represent

or speak for the other defendants and that the jury should not

hold Franklin’s admissions against them. Id. at 15–16. After his

opening statement, the court reiterated to the jury that the

statements of counsel (including opening statements) were not

evidence and explained that while Franklin’s counsel had

conceded Franklin’s guilt, he had not admitted to joint activity

with any of his codefendants. Id. at 52.

In his closing statement, Franklin’s counsel reiterated that

his client was guilty on the drug distribution counts and the

communication facility counts. May 22, 2006 AM Trial Tr. at

97–98. He agreed that there was “overwhelming evidence” that

Franklin had distributed PCP, or possessed it with intent to

distribute, on “a number of occasions,” and stated that if the jury

found evidence supporting the drug distribution counts, it could

simply “check guilty, guilty, guilty because we told you that in

the beginning he admitted that.” Id. at 97. In charging the jury,

the court again stated that opening statements and closing

38

arguments were not evidence. May 17, 2006 AM Trial Tr. at 59.

It also offered this instruction: “Each defendant is entitled to

have his innocence or guilt of the crime for which he is on trial

determined from his own conduct and from the evidence that

applies to him as if he were being tried alone. The guilt or

innocence of any one defendant should not control or influence

your verdict as to the other defendants.” Id. at 79. Blackson,

Robinson, Simmons, and Wilson make a common argument that

failing to sever their trials from Franklin’s was reversible error.

Wilson also argues that he was entitled to severance because of

the disparity between the evidence against him and the evidence

against Franklin. We address these arguments in turn.

A

Rule 8 of the Federal Rules of Criminal Procedure permits

joinder of defendants who “are alleged to have participated in the

same act or transaction, or in the same series of acts or

transactions, constituting an offense or offenses.” FED. R. CRIM.

P. 8(b). Once joined under Rule 8, defendants may seek

severance under Rule 14, which provides that “[i]f the joinder of

offenses or defendants . . . appears to prejudice a defendant or

the government, the court may order separate trials of counts,

sever the defendants’ trials, or provide any other relief that

justice requires.” FED. R. CRIM. P. 14(a). The appellants do not

contest the propriety of initially joining their trials with

Franklin’s under Rule 8. Instead, they contend they were entitled

to severance under Rule 14 once Franklin made prejudicial

admissions through his counsel.

We review the denial of a motion to sever for abuse of

discretion. United States v. Gbemisola, 225 F.3d 753, 760–61

(D.C. Cir. 2000). Given the permissive wording of Rule 14, “we

accord great deference to a district court’s decision to deny

severance.” United States v. Washington, 12 F.3d 1128, 1133

39

(D.C. Cir. 1994). Moreover, as the Supreme Court recognized

in Zafiro v. United States, 506 U.S. 534 (1993), “[t]here is a

preference in the federal system for joint trials of defendants who

are indicted together” because joint trials “promote efficiency

and serve the interests of justice by avoiding the scandal and

inequity of inconsistent verdicts.” Id. at 537 (internal quotation

marks omitted); see also United States v. Manner, 887 F.2d 317,

324 (D.C. Cir. 1989) (“In general, we strike a balance in favor of

joint trials.”). As we have stated, this preference is “especially

strong” when “the respective charges require presentation of

much the same evidence, testimony of the same witnesses, and

involve two defendants who are charged, inter alia, with

participating in the same illegal acts.” United States v. Ford, 870

F.2d 729, 731 (D.C. Cir. 1989) (internal quotation marks

omitted); see United States v. Richardson, 167 F.3d 621, 624

(D.C. Cir. 1999) (“Joint trials are favored in RICO cases.”).

In reviewing the district court’s decision denying severance,

we apply the standard set forth in Zafiro, which held that “when

defendants properly have been joined under Rule 8(b), 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.” 506 U.S. at 539.

Zafiro gave several examples of instances in which a joint trial

might create such risks: when it would permit admission of

incriminating evidence that would have been inadmissible

against one of the defendants, when it would require exclusion

of exculpatory evidence that would have been admissible in a

single defendant’s trial, or when there is a marked disparity in

the culpability of the defendants. Id.

The appellants characterize their claim as an “amalgam” of

two recognized sources of prejudice: mutually antagonistic

defenses and admission of a codefendant’s out-of-court

40

statement without an opportunity for cross-examination. They

acknowledge that neither situation is squarely presented here, but

nonetheless assert that their situation bears some resemblance to

each of these claims and that the resulting prejudice necessitated

severance. Mutually antagonistic defenses exist when the

defense one defendant asserts is irreconcilable with that asserted

by another defendant. United States v. Gilliam, 167 F.3d 628,

635 (D.C. Cir. 1999). In Zafiro, the Supreme Court refused to

adopt a bright-line rule mandating severance when mutually

antagonistic defenses are present, stating that “[m]utually

antagonistic defenses are not prejudicial per se.” 506 U.S. at

538. Hence establishing an abuse of discretion requires “more

than ‘the presence of some hostility’ among codefendants, and

‘more than the fact that co-defendants whose strategies were

generally antagonistic were tried together.’” Gilliam, 167 F.3d

at 635 (quoting United States v. (James) Brown, 16 F.3d 423,

433 (D.C. Cir. 1994)).

We question whether Franklin’s admissions through counsel

actually constitute a “defense” that was irreconcilable with the

defenses offered by the other defendants. Unlike a typical

situation in which one defendant attempts to shift blame to

another defendant, Franklin’s admissions through counsel did not

name any of the other defendants, identify specific counts, or

describe the particular conduct that occurred. But even assuming

arguendo that mutually antagonistic defenses were present, the

district court adequately addressed any resulting prejudice by

giving an appropriate limiting instruction. That instruction

closely tracked the instruction the Supreme Court found

sufficient to cure any prejudice arising from the mutually

antagonistic defenses present in Zafiro. 506 U.S. at 540–41.

The appellants also assert that Franklin’s admissions created

an issue analogous to that the Supreme Court addressed in

Bruton v. United States, 391 U.S. 123 (1968). Bruton concerned

41

a joint trial in which a nontestifying defendant’s out-of-court

confession was admitted into evidence and both defendants were

subsequently convicted. The Court held that admitting one

defendant’s confession without giving the other defendant the

opportunity to cross-examine him violated the Confrontation

Clause of the Sixth Amendment. It reasoned that there was a

“substantial risk that the jury, despite instructions to the contrary,

looked to the incriminating extrajudicial statements in

determining petitioner’s guilt.” Id. at 126. Bruton and its

progeny, Richardson v. Marsh, 481 U.S. 200 (1987), and Gray

v. Maryland, 523 U.S. 185 (1998), all involved the admission of

incriminating out-of-court statements made by a nontestifying

codefendant.

The appellants have no Bruton claim, however, because

Franklin’s concessions through counsel do not implicate the

Confrontation Clause. The Confrontation Clause prohibits

“admission of testimonial statements of a witness who did not

appear at trial unless he was unavailable to testify, and the

defendant had had a prior opportunity for cross-examination.”

Davis v. Washington, 547 U.S. 813, 821 (2006) (quoting

Crawford v. Washington, 541 U.S. 36, 53–54 (2004)). The

opening statement and closing argument made by Franklin’s

counsel, however, neither were admitted into evidence nor were

they testimony. Indeed, although the appellants rely on Bruton,

they have not identified any incriminating out-of-court statement

made by Franklin that was admitted into evidence. In addition,

the admissions Franklin made through counsel were not facially

incriminating like the confession in Bruton, nor did they “refer[]

directly to the ‘existence’ of the nonconfessing defendant” as in

Gray, 523 U.S. at 192. Thus we conclude that the appellants’

Sixth Amendment rights were not compromised.

Finally, even if Franklin’s admissions through counsel

created some prejudice, the district court was not obligated to

42

grant severance. “Rule 14 does not require severance even if

prejudice is shown; rather, it leaves the tailoring of the relief to

be granted, if any, to the district court’s sound discretion.”

Zafiro, 506 U.S. at 538–39. Here, the court considered and

responded to the objections from the other defense attorneys. It

directed Franklin’s counsel to limit the scope and content of the

admissions and required that he explain that the admissions did

not incriminate the other defendants. Moreover, the court gave

several limiting instructions to the jury concerning how it should

consider the admissions. These instructions helped mitigate any

potential prejudice arising from the admissions.

The appellants have not shown that Franklin’s admissions

through counsel caused sufficient prejudice to necessitate

severance. To the extent Franklin’s admissions through counsel

were an antagonistic defense, the court adequately responded by

giving the curative instruction approved in Zafiro. Likewise, the

appellants do not have a Bruton claim because no testimonial

statement by Franklin was ever admitted into evidence. Thus the

appellants have not shown that there was a “serious risk” that

trying them with Franklin would “compromise a specific trial

right” or “prevent the jury from making a reliable judgment

about guilt or innocence.” Zafiro, 506 U.S. at 539. The district

court was in the best position to evaluate whether allowing

Franklin’s admissions through counsel would prejudice the other

defendants’ right to a fair trial. Having examined the record, we

hold that the district court did not abuse its discretion when it

denied the appellants’ motions for severance.

B

Wilson contends that the district court should have granted

his motion to sever because there was a great disparity between

the evidence against him and the evidence against Franklin. As

he correctly notes, we have previously stated that “[w]hen the

43

evidence against one or more defendants is ‘far more damaging’

than the evidence against another defendant, ‘the prejudicial

spillover may have deprived a defendant of a fair trial.’” United

States v. Manner, 887 F.2d 317, 324 (D.C. Cir. 1989) (quoting

United States v. Tarantino, 846 F.2d 1384, 1398 (D.C. Cir.

1988)). Nevertheless, Wilson has not identified any disparity

that could have deprived him of a fair trial. On the contrary, as

we have detailed in Part I.A, there was overwhelming evidence

to support his conviction. See also infra Part XII. Thus the

district court did not abuse its discretion in denying his motion

for severance.

IV

Appellants next challenge the jury instructions on the RICO

counts. Section 1962(c) of Title 18 makes it “unlawful” to

“conduct or participate, directly or indirectly, in the conduct of

[a qualifying] enterprise’s affairs through a pattern of

racketeering activity.” Section 1962(d) prohibits conspiracy to

violate other RICO provisions, including § 1962(c). Appellants

were all convicted under RICO’s conspiracy provision.

Judgment of Franklin at 2; Judgment of Blackson at 2; Judgment

of Robinson at 2; Judgment of Simmons at 2; Judgment of

Wilson at 2. Appellants challenge the court’s RICO jury

instructions on three grounds. They contend that the district

court’s instructions failed to: (1) make clear that, to be convicted

under § 1962(d), a defendant must participate in the operation or

management of the enterprise; (2) adequately define an

“enterprise” as requiring a structure apart from a pattern of

racketeering activity; and (3) require “continuity” as a necessary

element of a pattern of racketeering activity. We reject all three

challenges.

44

A

First, appellants contend that the district court failed to

instruct the jury that, to be convicted under § 1962(d), a

defendant must participate in the operation or management of the

enterprise. We review de novo the failure of the district court to

provide a requested jury instruction. United States v. Hurt, 527

F.3d 1347, 1351 (D.C. Cir. 2008). The pertinent question is

“whether, taken as a whole, [the instructions] accurately state the

governing law and provide the jury with sufficient understanding

of the issues and applicable standards.” United States v.

Washington, 106 F.3d 983, 1002 (D.C. Cir. 1997). Because the

jury instructions given by the district court accurately reflect the

current state of the law on the degree to which operation or

management of the criminal enterprise is required for conviction

of RICO conspiracy, we hold that the district court’s jury

instructions did not err in this respect.

According to the district court’s jury instructions, in order

to find guilt for RICO conspiracy under § 1962(d), the jury was

required to find beyond a reasonable doubt: (1) that an enterprise

— in this case, an illegal association in fact — existed; (2) that

the enterprise engaged in or affected interstate commerce; (3)

that each defendant knowingly and intentionally agreed with

another person to conduct or participate in the affairs of the

enterprise; and (4) that each defendant knowingly and willfully

agreed that he or some other member of the conspiracy would

commit at least two racketeering acts. May 17, 2006 PM Trial

Tr. at 28–29. The district court subsequently elaborated on the

third element, stating “the government does not have to prove

that each defendant maintained a formal position in the

enterprise or that each defendant was part of upper management.

It is enough if the government proves beyond a reasonable doubt

that the defendant, even if he is a lower rung participant agreed

45

to participate in an enterprise that one or more of the defendants

would manage or operate.” Id. at 32.

Appellants contend that the district court erred to the extent

that it did not instruct the jury that it must find that each

defendant managed or operated the enterprise. They rely

primarily on Reves v. Ernst & Young, in which the Supreme

Court held that RICO liability under 18 U.S.C. § 1962(c),

RICO’s prohibition on participation in a racketeering enterprise,

does not extend “beyond those who participate in the operation

or management of an enterprise through a pattern of racketeering

activity.” 507 U.S. 170, 184 (1993). Appellants claim that if a

similar requirement is not extended to § 1962(d), prosecutors

will be able to “get around Reves’ limitation on RICO liability

through the simple expedient of charging the defendants under

§ 1962(d), RICO’s conspiracy provision, rather than under

§ 1962(c),” thereby “eviscerating” Reves. Appellants’ Br. at 75,

77.

This court has previously declined to decide whether Reves’

operation or management test is applicable to prosecutions under

§ 1962(d). See United States v. Thomas, 114 F.3d 228, 243

(D.C. Cir. 1997). Since Thomas, however, the Supreme Court

has decided Salinas v. United States, 522 U.S. 52 (1997). In that

case, the Court held that a § 1962(d) “conspiracy may exist even

if a conspirator does not agree to commit or facilitate each and

every part of the substantive offense.” Id. at 63. Moreover, a

“conspirator must intend to further an endeavor which, if

completed, would satisfy all of the elements of a substantive

criminal offense, but it suffices that he adopt the goal of

furthering or facilitating the criminal endeavor.” Id. at 65.

Salinas thus indicates that an individual defendant need not

himself participate in the operation or management of an

enterprise in order to be liable for conspiracy under § 1962(d).

46

Following Salinas, every court of appeals to consider the

question has held that the Reves operation or management test

does not apply to conspiracy under § 1962(d). See United States

v. Fernandez, 388 F.3d 1199, 1230 (9th Cir. 2004); Smith v.

Berg, 247 F.3d 532, 537–38 (3d Cir. 2001); United States v.

Zichettello, 208 F.3d 72, 99 (2d Cir. 2000); Brouwer v.

Raffensperger, Hughes & Co., 199 F.3d 961, 967 (7th Cir. 2000);

United States v. Posada-Rios, 158 F.3d 832, 857 (5th Cir. 1998).

Moreover, contrary to appellants’ contention, the Supreme

Court’s recent decision in Boyle v. United States, 129 S. Ct. 2237

(2009), does not alter this understanding of § 1962(d). Boyle

addressed § 1962(c), not § 1962(d). To be sure, appellants are

correct that the Court in Boyle stated that Reves “turned on our

interpretation of the participation requirement of § 1962,” rather

than of § 1962(c) specifically. Boyle, 129 S. Ct. at 2243 n.3.

However, § 1962(c) is the only subsection of § 1962 to explicitly

include the sort of participation requirement discussed in Reves.

Therefore, Boyle’s footnote necessarily references the provision

discussed in Reves itself — § 1962(c).

The district court was thus correct to refuse appellants’

proposed instruction requiring the jury to find that each

defendant participated in the enterprise’s management or

operation.

We also reject Simmons’ argument that he is differently

situated from the other appellants. Simmons contends that

because he had no role in the management or operation of the

enterprise, he could not be convicted under § 1962(c), and so

should not be liable under § 1962(d). He argues that it was

impossible for him to conspire to violate a law that does not

apply to him. This contention — that a defendant must be

eligible for conviction under § 1962(c) to be convicted under

§ 1962(d) — is also foreclosed by Salinas. There, the Supreme

47

Court squarely held that an individual “may be liable for

conspiracy even though he was incapable of committing the

substantive offense.” 522 U.S. at 64. Therefore, for Simmons

as for all of the appellants, the district court’s instructions were

not in error.

B

In their opening brief, appellants also challenge the jury

instructions on the ground that an association-in-fact enterprise

must have some structure beyond the attendant pattern of

racketeering activity.

Appellants’ contention is without merit. In Boyle, the

Supreme Court dismissed the notion that “the existence of an

enterprise may never be inferred from the evidence showing that

persons associated with the enterprise engaged in a pattern of

racketeering” as “incorrect.” 129 S. Ct. at 2245. Rather, it held

that “the evidence used to prove the pattern of racketeering

activity and the evidence establishing an enterprise may in

particular cases coalesce.” Id. (internal quotation marks

omitted).

C

Finally, appellants contend that the RICO jury instructions

were flawed because the district court failed to instruct the jury

that a pattern of racketeering must include an element of

continuity. They acknowledge, however, that they did not raise

this objection in the district court. Appellants’ Br. at 70. As

such, we review the absence of such an instruction only for plain

error. See FED. R. CRIM. P. 52(b); United States v. Wheeler, 525

F.3d 1254, 1256 (D.C. Cir. 2008).

48

Assuming arguendo that the district court erred in this

unobjected-to instruction, an appellant seeking to show plain

error must still demonstrate that the district court’s error affected

substantial rights and seriously affected “the fairness, integrity

or public reputation of judicial proceedings.” United States v.

Olano, 507 U.S. 725, 736 (1993) (internal quotation marks

omitted). Appellants cannot meet that burden.

As this court has held, continuity as a required element of a

pattern of racketeering activity “may be proved by establishing

either a closed period of repeated conduct or a threat of future

criminal activity.” W. Assocs. Ltd. P’ship ex rel. Ave. Assocs.

Ltd. P’ship v. Mkt. Square Assocs., 235 F.3d 629, 633 (D.C. Cir.

2001) (internal quotation marks omitted). A closed period of

repeated conduct, in turn, may be proven through “a series of

related predicates extending over a substantial period of time.”

H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 242 (1989). A threat

of future criminal activity may be proved by, for example, “past

conduct that by its nature projects into the future with a threat of

repetition.” Id. at 241.

Here, the evidence showed both a closed period of repeated

conduct and a threat of future criminal activity. Appellants were

convicted of substantive drug distribution in a course of dealing

spanning the time period from November 21, 2002 (Count 6,

Indict. at 39; Judgment of Blackson at 2) to March 16, 2004

(Counts 77–78, Indict. at 47; Judgment of Franklin at 2).

Therefore, the predicates for appellants’ RICO conspiracy

spanned a substantial period of time. Furthermore, the evidence

presented at trial pointed to the likelihood of the criminal activity

continuing. Indeed, Franklin was recorded stating, “Nothing will

stop this money train!” Oct. 1, 2003 Wiretap Tr. at 1.

In light of the evidence at trial, appellants cannot show that

omission of a continuity instruction was plain error.

49

V

Simmons asserts that reversible error occurred when the

prosecutor “vouched” for the credibility of an important witness,

his counsel promptly objected, and the court did nothing to

remedy the improper vouching. The witness, Roberta Moore,

testified for the prosecution pursuant to a plea agreement. Apr.

19, 2006 PM Trial Tr. at 9–12. On cross-examination, Simmons’

counsel used the plea agreement to attack her credibility, stating,

“Now in effect, based on this 10, 11 page plea agreement the

government is pulling the strings today, right?” Apr. 20, 2006

AM Trial Tr. at 40. The prosecution objected, and the court

sustained its objection. After establishing that Moore would be

sentenced to at least five years’ imprisonment unless the

government filed a motion supporting a lower sentence,

Simmons’ counsel continued, “So you have to keep them happy

so that they’ll file those motions, right?” Id. at 55. Again the

prosecution objected. Again the court sustained the objection.

Addressing Moore’s obligation to testify truthfully, Simmons’

counsel asked, “Basically in your situation you tell the truth

when it helps you, right?” Id. at 62. He later asked, “And you

know the reason you haven’t been sentenced yet is because since

the government has so much control over you they want to sit

here and [] see how you perform, right?” Id. at 72. On redirect,

the prosecutor walked Moore through the details of the plea

agreement again, highlighting the fact that the government’s

recommendation would not bind the judge at sentencing.

Referring to the judge, the prosecutor then asked, “What do you

think she’d do if you lied?” Id. at 88. Moore responded, “I’d be

locked up.” Id. Simmons’ counsel interjected, “Objection, Your

Honor,” but the court overruled his objection, stating, “I think it

was an appropriate redirect.” Id.

50

On appeal, Simmons argues that this exchange constituted

improper prosecutorial vouching because it implied that the

prosecution and the court could monitor and verify whether

Moore testified truthfully. A prosecutor may not vouch for the

credibility of a witness. “[I]t is for the jury, and not the

prosecutor, to say which witnesses are telling the truth.” United

States v. (Xavier) Brown, 508 F.3d 1066, 1075 (D.C. Cir. 2007)

(quoting Harris v. United States, 402 F.2d 656, 658 (D.C. Cir.

1968)) (internal brackets omitted). When a prosecutor vouches

for a witness’ credibility, it may “convey the impression that

evidence not presented to the jury, but known to the prosecutor,

supports the charges against the defendant,” thereby jeopardizing

“the defendant’s right to be tried solely on the basis of the

evidence presented to the jury.” Id. (quoting United States v.

Young, 470 U.S. 1, 18 (1985)). Likewise, prosecutorial vouching

“carries with it the imprimatur of the Government and may

induce the jury to trust the Government’s judgment rather than

its own view of the evidence.” Id. (quoting Young, 470 U.S. at

18–19) (emphasis omitted).

Our standard of review depends on whether the vouching

objection was properly preserved. Federal Rule of Evidence 103

states that to preserve an issue concerning the admission of

evidence, a party must make “a timely objection or motion to

strike . . . stating the specific ground of objection, if the specific

ground was not apparent from the context.” FED. R. EVID.

103(a)(1). For nonevidentiary issues, Federal Rule of Criminal

Procedure 51 requires that the objecting party inform the court

of its objection “and the grounds for that objection.” FED. R.

CRIM. P. 51(b). In this case, Simmons’ counsel objected in a

timely manner, but did not state his ground for objecting, much

less do so with specificity. When “the defendant fails to object

or to state the specific ground for an overruled objection, we may

reverse only for plain error unless the defendant can demonstrate

on appeal that the ground for the objection was obvious from the

51

context in which it was made.” United States v. Boyd, 54 F.3d

868, 872 (D.C. Cir. 1995). In Boyd, the prosecutor asked the

defendant why two police eyewitnesses were “making this up.”

The defendant’s counsel stated, “I object,” and the judge replied,

“Overruled.” Id. at 870. The court reviewed this exchange only

for plain error because “nothing in the context of defense

counsel’s unexplained objection made obvious the ground

therefor.” Id. at 872.

In this case, as in Boyd, the defendant’s basis for his

unexplained objection is not clear from the context. Moreover,

nothing about the court’s response indicates that it understood

that Simmons’ objection concerned vouching. We thus conclude

that the plain error standard governs. To demonstrate plain error,

an appellant must show “(1) a legal error that was (2) ‘plain’ (a

term that is synonymous with ‘clear’ or ‘obvious’), and that (3)

affected [his] substantial rights.” (Xavier) Brown, 508 F.3d at

1071 (quoting United States v. Sullivan, 451 F.3d 884, 892 (D.C.

Cir. 2006)); see also United States v. Olano, 507 U.S. 725,

732–34 (1993). Even when a plain error has been shown, we

will reverse only “if (4) the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” (Xavier)

Brown, 508 F.3d at 1071 (quoting Sullivan, 451 F.3d at 892–93).

The appellant bears the burden of proving each element under

this standard. Id.

In reviewing for plain error, the threshold question is

whether there was a legal error. Therefore we must first

determine whether the prosecutor’s question constituted

improper vouching. Given the context, we conclude this

exchange was not plainly improper vouching, if it was vouching

at all. Simmons would have us interpret the prosecutor’s

question to imply that the court could monitor and verify the

truthfulness of Moore’s testimony: “What do you think she’d do

if you lied [and she would know if you did]?” But the question

52

could also be interpreted as “What do you think she’d do if you

lied [assuming she knew you were lying]?” These possible

interpretations show that the question does not necessarily imply

that the judge would have known if Moore was lying. In

addition, the prosecutor’s question made sense in the context of

the preceding cross-examination. On cross, Simmons’ counsel

questioned whether Moore was telling the truth, thereby putting

her state of mind in question. The prosecutor’s question on

redirect also focused on Moore’s state of mind, asking “What do

you think she’d do if you lied?” Apr. 20, 2006 AM Trial Tr. at

88 (emphasis added). Thus the question focused on Moore’s

understanding of the plea agreement and her state of mind in

testifying. Moreover, unlike the vouching in the cases upon

which Simmons relies, it did not express the prosecutor’s

personal opinion about Moore’s credibility. We conclude that

this was hardly vouching, but was in fact a proper rejoinder to

the cross-examination concerning the motive of the witness.

This was not plain error, if it was error at all.

Assuming arguendo that Simmons had preserved this issue

and it was error, we are convinced that this alleged vouching was

harmless. Even discounting Roberta Moore’s testimony, the

evidence against Simmons was extensive. Moreover, the alleged

vouching was relatively innocuous, particularly given the

preceding cross-examination. In short, Simmons cannot prevail

on this issue.

VI

At trial, cooperating witness Michael Abney testified that

William Simmons was John Franklin’s “loyalest foot soldier,”

describing him as Franklin’s “rescue puppet.” May 2, 2006 AM

Trial Tr. at 42–43. When asked to clarify what he meant by

“rescue puppet,” he explained that Franklin had rescued

Simmons from a “life of destruction,” which he characterized as

53

“[d]rug addiction, no place to live, that type of thing.” Id. at

44–45. The prosecutor then said, “Now let’s talk about Mike’s

lifestyle of destruction. What did you know about him?” Abney

responded, “I known that he smoked crack, snort dope. He had

a history of known to be a thief, robbing, killing and stuff.” Id.

at 45. Simmons’ counsel objected and sought to have Abney’s

answer stricken, but the court denied his motion. Although it

refused to strike the statement, the court suggested, “Why don’t

we speak about Mr. Simmons’ drug use and limit [] the

testimony to that.” Id. at 45–46.

Simmons contends that the court’s failure to strike Abney’s

answer constitutes reversible error because it was inadmissible

character evidence and its prejudicial effect substantially

outweighed its probative value. Federal Rule of Evidence 404(b)

states: “Evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show

action in conformity therewith. It may, however, be admissible

for other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or

accident . . . .” FED. R. EVID. 404(b). In criminal cases, Rule

404(b) requires that the prosecution provide pretrial notice when

it intends to introduce character evidence if the defendant has

requested such notice. Id. We review the district court’s Rule

404(b) decisions for abuse of discretion. United States v. Long,

328 F.3d 655, 660 (D.C. Cir. 2003). In doing so, we give “much

deference” to the district court’s decision. Id. (quoting United

States v. Cassell, 292 F.3d 788, 792 (D.C. Cir. 2002)). We will

sustain that decision “so long as the evidence is relevant under

Rule 401 and is offered as proof of a matter other than the

defendant’s character or propensity to commit a crime.” Id.

As a procedural matter, Simmons argues that the

government failed to provide notice that it planned to introduce

this evidence. Although Simmons asserts that he requested

54

notice, he offers no evidence to that effect. Moreover, it is not

clear whether the government expected Abney to make this

statement, or whether the statement came as a surprise, meaning

that it had no ability to give notice. Therefore we lack sufficient

information to evaluate Simmons’ claim that he never received

the notice he claims to have sought.

Turning to the statement itself, the government argues that

it was admissible because it went to Simmons’ motive for

serving as Franklin’s “runner.” It reasons that Simmons decided

to serve as Franklin’s runner because Franklin saved him from

a “life of destruction.” The government notes that Simmons’

counsel had already portrayed his client as a drug addict who

would steal to get drug money and therefore could not have been

a trusted member of the alleged drug conspiracy. Even accepting

this argument, however, it is difficult to understand how Abney’s

statement about Simmons’ “history . . . of robbing [and] killing”

demonstrates this motive. Moreover, it is hard to see how this

statement could have been admissible under Rule 403, which

states that “relevant[] evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair

prejudice.” FED. R. EVID. 403. Here, admitting evidence

concerning Simmons’ alleged history of killing risked substantial

unfair prejudice while adding very little probative information

concerning his destructive lifestyle, especially considering that

Simmons’ counsel had already disclosed information about

Simmons’ drug addiction and propensity to steal. Thus the court

arguably should have stricken this statement from the record and

given a limiting instruction to the jury.

Nonetheless, we conclude that considering the trial as a

whole, the district court’s failure to strike this statement or give

a limiting instruction was harmless error. The question is

whether this evidence affected Simmons’ substantial rights, for

“[a]ny error, defect, irregularity, or variance that does not affect

55

substantial rights must be disregarded.” FED. R. CRIM. P. 52(a).

In evaluating whether this was harmless error, we ask “what

effect the error had or reasonably may be taken to have had upon

the jury’s decision.” Kotteakos v. United States, 328 U.S. 750,

764 (1946). Specifically, we must determine whether “the error

had substantial and injurious effect or influence in determining

the jury’s verdict.” Id. at 776. An error is harmless if the guilty

verdict was “surely unattributable to the error.” United States v.

Baugham, 449 F.3d 167, 176 (D.C. Cir. 2006) (quoting Sullivan

v. Louisiana, 508 U.S. 275, 279 (1993)).

We conclude that Abney’s statement about Simmons’

“history of . . . robbing [and] killing” did not have a substantial

effect on the jury’s verdict. First, even if the jury accepted

Abney’s statement as true, the information it conveyed was not

particularly germane to the conspiracy and drug distribution

counts on which Simmons was ultimately convicted. The

statement was most probative as evidence that Simmons had a

propensity for violence, but the jury found Simmons not guilty

of murder and all other violent crimes with which he was

charged. Verdict at 37–39. This supports our conclusion that the

evidence Simmons protests, which concerned robbing and

killing, did not influence the jury’s verdict. Second, the other

evidence against Simmons was so extensive we see no realistic

possibility that this single uncorroborated remark, made in

passing by a particularly garrulous witness, had any meaningful

effect on the jury’s verdict. Third, even though the court refused

to strike the statement, it did prospectively limit Abney’s

testimony to Simmons’ history of drug abuse, thereby avoiding

additional prejudice and suggesting that Abney’s statement was

not especially relevant. Evaluating Abney’s statement in the

context of the whole trial, then, we are convinced that the district

court’s failure to strike this statement was harmless error and

does not merit reversal.

56

VII

At trial, William Robinson sought to introduce two defense

witnesses whose personal experiences would enable them to

interpret various taped phone calls the government had

introduced into evidence. The first witness was a former drug

dealer; the second was a resident of the 18th and M

neighborhood. The district court denied the motion, ruling that

neither witness had the particularized knowledge of the events in

question required of lay witnesses.

Antawan Robinson, the court found, lacked the

particularized knowledge to serve as a lay fact witness “because

he doesn’t live in the area, he hasn’t lived in the area, he has

never talked to the defendants . . . by the telephone.” May 16,

2006 PM Trial Tr. at 47. The district court likewise ruled that

the second witness, who had even less firsthand knowledge of

the conspiracy, was an inappropriate lay fact witness.

On appeal, Robinson argues only that the district court erred

by excluding Antawan Robinson as a lay witness. He initially

asserted error with respect to the second witness, but then offered

no argument in support of that witness’ admission, thereby

abandoning his argument with respect the second witness. See

Terry v. Reno, 101 F.3d 1412, 1415 (D.C. Cir. 1996); FED. R.

APP. P. 28(a)(9)(A). We review the district court’s evidentiary

ruling for abuse of discretion. United States v. Whitmore, 359

F.3d 609, 616 (D.C. Cir. 2004).

Federal Rule of Evidence 702 governs expert testimony.

Expert witnesses may testify to matters of “scientific, technical,

or other specialized knowledge.” FED. R. EVID. 702. Lay

testimony, by contrast, is governed by Rule 701. Unlike experts,

lay witnesses must base their testimony on their experiential

“perception” and not on “scientific, technical, or other

57

specialized knowledge within the scope of Rule 702.” FED. R.

EVID. 701(a), (c). This requirement ensures that lay testimony

is “the product of reasoning processes familiar to the average

person in everyday life.” United States v. Garcia, 413 F.3d 201,

215 (2d Cir. 2005). Moreover, it avoids the “risk that the

reliability requirements set forth in Rule 702 will be evaded

through the simple expedient of proffering an expert in lay

witness clothing.” FED. R. EVID. 701 advisory committee’s

notes, 2000 amends.

A witness with firsthand experience of a particular drug

operation may testify under Rule 701. See United States v.

Williams, 212 F.3d 1305, 1309 (D.C. Cir. 2000). In the absence

of firsthand experience, a witness with the requisite expertise

may testify as an expert about the many aspects of drug

operations falling outside the scope of lay knowledge. See

United States v. Boney, 977 F.2d 624, 628 (D.C. Cir. 1992)

(“operations of narcotics dealers” are “a suitable topic for expert

testimony because they are not within the common knowledge of

the average juror”). At issue here is whether a lay witness may

testify about drug operations outside the scope of lay knowledge

based on past personal experience with other, similar drug

operations.

At least three Circuits have found that such witnesses may

testify only when qualified as experts. See United States v.

Oriedo, 498 F.3d 593, 603–04 (7th Cir. 2007); Garcia, 413 F.3d

at 215–17; United States v. Figueroa-Lopez, 125 F.3d 1241,

1246 (9th Cir. 1997). But see United States v. Page, 521 F.3d

101, 105 (1st Cir. 2008). We agree with those courts holding

that an individual without personalized knowledge of a specific

drug conspiracy may not testify about drug topics that are

beyond the understanding of an average juror under Rule 701.

Such a witness may be permitted to testify only as an expert

under Rule 702.

58

For a witness to testify reliably about a matter outside the

scope of typical lay knowledge, the witness’ knowledge must

come from one of two sources: the firsthand experience of a lay

witness, FED. R. EVID. 701, or the sort of “knowledge, skill,

experience, training, or education” that would qualify the witness

as an expert, FED. R. EVID. 702. Thus, if a witness lacks

firsthand knowledge of a matter outside the scope of lay

expertise, he may testify only if qualified as an expert. To hold

otherwise would conflate the “particularized” knowledge

necessary to testify as a lay witness with the “specialized”

personal knowledge gained from previous experience that allows

a witness to testify as an expert. An individual testifying about

the operations of a drug conspiracy because of knowledge of that

drug conspiracy has “particularized” knowledge and should be

admitted as a lay witness; an individual testifying about the

operations of a drug conspiracy based on previous experiences

with other drug conspiracies has “specialized” knowledge and —

provided his testimony meets the rule’s enumerated requirements

— should be admitted as an expert.

Antawan Robinson’s proposed testimony falls squarely into

the category of expert testimony. Robinson proposed to testify

about terminology used in drug operations, a matter outside the

scope of a typical lay person’s knowledge and experience.

Robinson had no firsthand experience with the M Street Crew;

his testimony was to have been based entirely on his own

experience as a drug dealer elsewhere. Such evidence is

admissible only under Rule 702. Had the defense wished to

introduce Robinson’s testimony, it could have done so only by

attempting to qualify him as an expert based on his experience

of other drug operations.

We therefore affirm the district court’s ruling not to allow

Antawan Robinson to testify as a lay witness for the defense.

59

VIII

On the morning of March 16, 2004, an FBI team entered the

home of Nicole Harris to arrest her fiancé, George Wilson. The

agents had an arrest warrant for Wilson, but had not yet obtained

a search warrant for the residence. After arresting Wilson, they

obtained written consent from Harris to search the premises.

During their search, the agents discovered a 7.62mm assault rifle

and approximately $80,000 in cash. Wilson filed a pretrial

motion to suppress this evidence. After holding an evidentiary

hearing, the district court ruled that the warrantless search did

not violate the Fourth Amendment because it was conducted

pursuant to valid consent. In the alternative, the court stated that

even absent valid consent, the evidence would still be admissible

under the inevitable discovery doctrine. Wilson appeals this

ruling, arguing that there was no valid consent for the search and

no probable cause upon which a warrant could have issued. In

addition, he contends that the Supreme Court’s decision in

Georgia v. Randolph, 547 U.S. 103 (2006), entitles him to an

evidentiary hearing concerning whether the agents intentionally

deprived him of the opportunity to object to the search.

Valid consent constitutes an exception to the general Fourth

Amendment requirement of a warrant supported by probable

cause. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).

To be valid, consent must be voluntarily given. Whether consent

is voluntary depends on “the totality of all the surrounding

circumstances.” Id. at 226. In applying the “totality of the

circumstances” test, a court may consider various factors,

including the consenting party’s “age, poor education or low

intelligence, lack of advice concerning his constitutional rights,

the length of any detention before consent was given, the

repeated and prolonged nature of the questioning, and the use of

physical punishment.” United States v. Hall, 969 F.2d 1102,

1107 (D.C. Cir. 1992) (quoting United States v. Lloyd, 868 F.2d

60

447, 451 (D.C. Cir. 1989)). Since this inquiry is factually

intensive, we will reverse a district court’s determination that

consent was voluntary only for clear error. United States v.

Lewis, 921 F.2d 1294, 1301 (D.C. Cir. 1990). In addition, we

accord extra deference to the district court’s determinations

concerning witness credibility. See Bose Corp. v. Consumers

Union of U.S., Inc., 466 U.S. 485, 500 (1984).

At the evidentiary hearing, FBI team leader Kevin Ashby

testified concerning the circumstances under which Harris gave

consent. He testified that after arresting Wilson, he decided to

seek her consent to search rather than waiting for a warrant. Jan.

5, 2006 Evid. Hg. at 44–45. Ashby spoke to Harris, who was not

handcuffed, while she was sitting on her couch. Id. at 45. He

read the consent form to Harris and explained that she could

refuse to give consent, but also informed her that they were

applying for a search warrant and would remain in her home

until the warrant had been obtained. Id. at 45, 71. Harris

initially refused to give consent, but after thinking about it for a

few minutes, she signed the form. Id. at 45, 47.

Harris offered a somewhat different account of events.

When the search took place, she was 33 years old and had gone

to school through the twelfth grade. She testified that the FBI

team burst into the upstairs bedroom where she and Wilson had

been sleeping, ordered them onto the floor, and handcuffed them

both. Harris, who was only wearing a “nighty,” asked the

officers to put more clothes on her. Id. at 111. Once she was

clothed, the officers took her downstairs and sat her on the

couch. Id. at 111–12. When she asked whether they had a

search warrant, a male officer (presumably Ashby) told her that

they did not yet have one, but that it was “sitting in front of the

Judge.” Id. at 114. The officer also told Harris that they would

not leave her house until they had gotten a search warrant. Id. at

118. When she asked if she could make a phone call, the agents

61

told her no. Id. at 114. Harris testified that she remained

handcuffed until just before she signed the consent form. Id. at

123. She stated that she did not sign the consent form

voluntarily. When asked why she did sign it, she said, “I signed

the form because I felt that I didn’t have no other choice and they

wouldn’t allow me to make a phone call and I was scared.” Id.

at 120. On cross-examination, the prosecution used a picture that

showed Harris wearing a shirt with her arms through the sleeves

to impeach her repeated testimony that she was handcuffed while

discussing the consent form and deciding whether to sign it. Id.

at 136–37. In response, she admitted that she might have been

mistaken about the handcuffs. Id. at 137. In addition, Harris

admitted that she did not want the evidence seized from her

home to be used in her fiancé’s trial. Id. at 139–40.

The district court found that Harris was “only partly

credible,” finding that “[h]er testimony to the Court’s

observation was memorized and not really being drawn from her

recollection of her prior experience.” Jan. 9, 2006 Evid. Hg. at

119. The court surmised that the agents probably removed

Harris’ handcuffs while she was still upstairs, allowing her to get

dressed before she was taken downstairs. Id. at 121. It found

that although the sudden intrusion “undoubtedly startled and

scared Ms. Harris at first . . . nothing in her evidence supports

her statements that she continued to feel scared or pressured.”

Id. Hence the district court concluded that Harris’ “consent was

voluntary under the totality of the circumstances,” specifically

noting that she was in her “early thirties,” that she was “an

educated person,” that she talked to Ashby for two to five

minutes, that she admitted having been told that she did not have

to agree to the search, and that she was not handcuffed or

restrained from leaving the residence. Id. at 123.

On this record, we cannot say that the district court’s

determination that Harris gave voluntary consent was clearly

62

erroneous. Considering the totality of the circumstances, most

factors point toward voluntariness. Harris was 33 years old and

she had completed the twelfth grade. Although the raid itself

must have been startling, the agents did not seek her consent to

search until she was out of the handcuffs, had dressed, and was

seated on the couch. Ashby read the consent form to her and

made sure she understood that she could choose whether to sign

it or not. Morever, she apparently weighed that decision for

several minutes before signing. There was no evidence of any

physical coercion, verbal threats, or other conduct that would

have impinged on Harris’ ability to make a voluntary decision.

Wilson points to the agent’s statement that the FBI team would

not leave until they obtained a search warrant, arguing that it left

Harris without a choice. Having found and arrested Wilson on

the premises, however, it was not improper for the FBI to secure

the premises while a search warrant was obtained. See Segura

v. United States, 468 U.S. 796, 810 (1984). Consequently, we

affirm the district court’s decision denying Wilson’s motion to

suppress. Since there was valid consent, Wilson’s contention

that the FBI lacked sufficient probable cause to support a search

warrant is irrelevant. Likewise, we need not address the court’s

alternate holding that the evidence would inevitably have been

discovered.

We turn briefly to Wilson’s argument concerning Georgia

v. Randolph, which was decided after the search of Harris’

residence. At trial, Wilson renewed his motion to suppress based

on the recent decision in Randolph, but the court again denied it.

In Randolph, the Supreme Court held that even given valid

consent from one occupant, the express objection of a physically

present co-occupant renders the search unreasonable with respect

to that co-occupant. 547 U.S. at 106. Randolph also suggested

that “evidence that the police have removed the potentially

objecting tenant . . . for the sake of avoiding a possible

objection” might invalidate a subsequent search with respect to

63

that tenant. Id. at 121–22. Seizing on this dicta, Wilson argues

that we should remand for an evidentiary hearing to determine

whether the FBI agents who arrested him intentionally deprived

him of the opportunity to object to the search. We disagree.

Nothing in the evidence supports the proposition that the agents

arrested and removed him to mute his possible objections to the

search. Moreover, as the district court noted, it strains credulity

to think that the FBI somehow anticipated the Randolph decision

and therefore whisked Wilson away to prevent him from

objecting. Apr. 13, 2006 AM Trial Tr. at 76. For these reasons,

we affirm the district court’s decision denying Wilson’s renewed

motion to suppress.

IX

John Franklin was convicted of being the principal

administrator, organizer, or leader of a Continuing Criminal

Enterprise (“CCE”) in violation of 21 U.S.C. § 848 (Count 3).

Pursuant to § 848(b), he was sentenced to life imprisonment.

Franklin challenges his conviction on the ground that there was

insufficient evidence to support the finding that he “occupie[d] a

position of organizer, a supervisory position, or any other

position of management” with respect to “five or more other

persons,” necessary for conviction on this count. 21 U.S.C.

§ 848(c)(2)(A).

Upon reviewing the evidence in the light most favorable to

the government, as we must, we conclude that a reasonable jury

could have found the essential elements of the offense beyond a

reasonable doubt. See United States v. Washington, 12 F.3d

1128, 1135–36 (D.C. Cir. 1994) (quoting Jackson v. Virginia, 443

U.S. 307, 319 (1979)). There was sufficient evidence to show

that Franklin managed Elizabeth Lee, Monica Bell, William

Simmons, William Robinson, and various of his other

“lieutenants” and “foot soldiers.”

64

• Elizabeth Lee. Drug “packagers” can be considered

“managees” under 21 U.S.C. § 848. United States v.

Williams-Davis, 90 F.3d 490, 509 (D.C. Cir. 1996). Elizabeth

Lee, who was Franklin’s common-law wife, testified regarding

the drug packaging activities she pursued on Franklin’s behalf.

See, e.g., Mar. 22, 2006 PM Trial Tr. at 7: “Well, I would get up,

like I said, when the kids went off to school, and I would get the

half an ounce bottles and the ounce bottles, put everything on the

dresser, measuring cups and everything, measure it out and put it

in the half an ounce bottles and the ounce bottles, wipe

everything down, and put them in a suitcase. So when [Franklin]

come in all he had to do was just grab it and go ahead back out.”

Other evidence showed Franklin “directed” Lee’s drug

packaging. United States v. Mitchell, 49 F.3d 769, 773 (D.C. Cir.

1995). For example, Lee testified that Franklin would sometimes

“call [her] from the street” to direct her packaging activities.

Mar. 22, 2006 PM Trial Tr. at 11; see also id. at 11, 12: “Q. And

what kind of questions would he be asking you? A. What I bottle

up, or [Franklin]’ll ask for a certain amount, have a certain

amount done for him so he could come in and pick it up. Q. Did

he ever ask you to count — tell him how much money he had

available and that kind of thing? A. Yes.”; “If he wanted a

specific amount done, sometimes he would call back and tell me

make sure you have such-and-such full ounces and half ounces.”

Thus, the jury could reasonably have found beyond a

reasonable doubt that Franklin managed the packaging activities

of Elizabeth Lee.

• Monica Bell. Similarly, the evidence showed that

Monica Bell, who served as a “tester” of Franklin’s PCP, was

under Franklin’s direction. Bell testified that, “[a]bout three

times a week,” Franklin would “call” her and then “come by.”

Apr. 18, 2006 PM Trial Tr. at 82. At that point, Franklin would

ask Bell “to test [a] dipper[] for him,” and Bell would “[t]est PCP

65

laced dippers, cigarettes” “[f]or John.” Id. at 78, 77. In

exchange, Bell “might have got a dipper if [she] wanted one.” Id.

at 86. That Bell was directed by Franklin is unmistakable.

Indeed, Bell testified to her direction by Franklin: “Q. Okay.

Where Mr. Franklin says, hey, listen, go out front and get a

cigarette from somebody, anybody, who is he telling that to? A.

Me. Q. And what does he want you to do? A. Go get a cigarette

from somebody outside.” Id. at 97. Additionally, Lee, Franklin’s

drug packager, testified to Franklin’s direction of his testers: “Q.

What were you guys talking about? A. A tester. Q. What’s a

tester? A. He take some [PCP] out in the bottle and have people

to smoke it to test it.” Mar. 22, 2006 PM Trial Tr. at 40.

Moreover, the fact that Bell received compensation in the form

of free “dippers” and performed such services as often as three

times a week renders her similarly situated to the “regular

drivers” found to be managees in Mitchell, 49 F.3d at 773, or the

“runners, packagers, or transporters” found to be managees in

Williams-Davis, 90 F.3d at 509.

Given the evidence that she performed a service for Franklin,

at his bidding, for compensation, there was sufficient evidence

for the jury reasonably to find beyond a reasonable doubt that

Bell was managed by Franklin.

• William Simmons. Drug runners can be considered

managees for purposes of 21 U.S.C. § 848. See Williams-Davis,

90 F.3d at 509. There was sufficient evidence from a variety of

sources for a jury reasonably to find beyond a reasonable doubt

that William “Mike” Simmons served as a drug runner for

Franklin and was under Franklin’s direction.

Michael Abney testified that Simmons was “John Franklin

loyalest foot soldier.” May 2, 2006 AM Trial Tr. at 42. Abney

further testified that Simmons’ drug sales were completely

directed by Franklin: “Q. What if anything did, did Mike do for

66

John? A. Whatever he told him. Sell bottles to people. If John

need, if John needed anything done, he’d do it. He was like his,

I say he was like his rescue puppet.” Id. at 43. Abney further

testified that when he bought PCP for distribution from Franklin,

Simmons retrieved and delivered the drugs to him. Finally,

Abney testified that his experience was not unusual: “Q. Did you

see Mike [Simmons] get water [i.e, PCP] for other people under

those circumstances? A. Yes. Q. Can you tell us about that? A.

He do it the same way he do me. People go to get it from John,

give John the money, Mike go get the water.” Id. at 52.

Monica Bell likewise testified that when she tested

Franklin’s PCP for him, Simmons often delivered the “dipper”

for her to test. Undercover officer Leftridge testified that on

three occasions, after she purchased PCP from Franklin, another

man — whom she later identified as Simmons — delivered the

drugs to her. Her testimony was supported by videotape of two

of those occasions. Finally, supporting evidence was presented

by other cooperating government witnesses, who described

Simmons as Franklin’s “[s]idekick,” or “running partner,” Apr.

19, 2006 PM Trial Tr. at 44 (Roberta Moore), and his “runner,”

“flunky,” “little man,” or “helper,” Apr. 27, 2006 AM Trial Tr.

at 88 (Omari Minnis). These witnesses also testified to firsthand

experience of Simmons “running” for Franklin.

• William Robinson. According to Michael Abney,

Robinson was one of Franklin’s “lieutenants.” Although Abney’s

definition of a “lieutenant” may not correspond to that previously

accepted by the court in United States v. Thomas, 114 F.3d 228,

259 (D.C. Cir. 1997), there was sufficient evidence for the jury

reasonably to find beyond a reasonable doubt that Franklin

managed Robinson. First, in several instances, the law-

enforcement task force recorded conversations in which Franklin

directed Robinson either to make a sale or to assist Franklin in a

sale. Second, undercover officer Leftridge testified similarly,

67

describing how during one of her buys from Franklin, he had

Robinson deliver the PCP she had purchased. Leftridge’s

testimony is corroborated by a surveillance video on which

Robinson’s face is visible as he delivers the PCP. Third, on at

least one occasion, Franklin instructed Robinson to find someone

to “taste” his PCP to ensure its quality.

• Foot Soldiers. Michael Abney classified himself and

at least 16 other members of the M Street Crew as “foot soldiers.”

However, while “foot soldier” evokes the bottom rung of a

military-like hierarchy, Abney’s use of the term during his trial

testimony did not deal solely with position in the chain of

command. Instead, at various times he used the term “foot

soldier” to indicate that his sales activity was less lucrative than

that of “lieutenants,” that he lacked his own source of drugs, or

that his status among his peers was lower. As such, Abney’s

division of the members of the M Street Crew into “foot soldiers”

and “lieutenants” is not dispositive evidence that Franklin

managed either group.

Other evidence, however, shows that Franklin managed his

“foot soldiers.” For example, both Abney and another “foot

soldier,” Omari Minnis, described the M Street Crew’s rotational

system, whereby the “foot soldiers” would take turns selling

drugs to customers. Minnis testified that the street sellers “took

turns” in order to ensure there was “enough [business] to go

around.” Apr. 27, 2006 AM Trial Tr. at 79. Abney observed that

the rotation system would “[k]eep a lot of hostility down.” May

2, 2006 AM Trial Tr. at 98. Minnis also testified that the system

was widely followed. Although Abney testified he was the only

“foot soldier” not to follow the rotation system, he identified

“John [Franklin] and the lieutenants” as the ones who imposed it.

Id. at 97–98. Additionally, Tracy Ambers testified that she

originally bought PCP from someone named “Ron,” but Franklin

68

directed Ron to give Ambers Franklin’s telephone number so that

she could deal exclusively with Franklin in the future.

From this evidence the jury could reasonably credit Abney’s

description of Franklin imposing a selling regime on his “foot

soldiers” and Ambers’ recollection of Franklin directing “Ron”

to give her Franklin’s number. Franklin acknowledges that an

individual exercises managerial responsibility by “maintaining

control over drugs and customers by setting resale prices or

determining to whom the drugs could be sold.” Appellants’ Br.

at 122 (citing Mitchell, 49 F.3d at 772). Establishing when and

by whom drugs can be sold is analogous. Thus, based on

Abney’s and Ambers’ testimony, the jury could reasonably have

found beyond a reasonable doubt that Franklin exercised

managerial control over his “foot soldiers” and therefore fell

within the purview of 21 U.S.C. § 848.

• Lieutenants George Wilson and Joseph Blackson.

Along with William Robinson, Michael Abney classified George

Wilson and Joseph Blackson as Franklin’s “lieutenants.”

“Lieutenants” are generally managees of the “general” of a crew

for the purpose of 21 U.S.C. § 848. See Williams-Davis, 90 F.3d

at 509. However, as noted, Abney’s understanding of the term

“lieutenant” renders his classification insufficient to establish that

Franklin managed Wilson and Blackson. Abney’s view of what

it meant to be a “lieutenant” fluctuated during his testimony. In

describing the roles of Wilson and Blackson, Abney portrayed a

“lieutenant” as a manager, but, in later testimony, he described a

“lieutenant” as a more successful drug dealer who was also, to

some degree, a supplier. Status as a successful drug supplier does

not render a person managed by Franklin. See Mitchell, 49 F.3d

at 772.

However, Abney’s classification of “lieutenants” does not

stand alone. Other aspects of his testimony indicate that Franklin

69

was in a managerial position, at least with respect to Wilson. For

example, Abney described a scuffle between himself and Wilson

over whether to give a discount to a regular customer. Franklin

stepped in, siding with Abney, and directed Wilson to stop

bullying Abney — a directive Wilson apparently obeyed.

Additionally, a wiretapped conversation between Franklin and

Wilson revealed that Wilson considered himself to be managed

by Franklin. As such, he asked Franklin on one occasion whether

Franklin would like him to kill someone (an offer that Franklin

refused): “Sugg [i.e. Wilson]: Want me to put somebody head on

a slab. John: Huh? Sugg: Want me to show, want me to show

my loyalty? John: Naw everything alright.” Sept. 27, 2003

Wiretap Tr. at 1–2. Thus the jury could reasonably find beyond

a reasonable doubt that Franklin managed at least Wilson and,

perhaps — based upon Abney’s testimony — Blackson as well.

In any event, Wilson plus Lee, Bell, Simmons, Robinson, and the

“foot soldiers” brings the total number of people that a reasonable

jury could find were managed by Franklin well beyond five.

Franklin’s challenge to the sufficiency of the evidence on Count

3 thus fails.

X

Count 31 charged Blackson with distribution of PCP on

April 15, 2003. Near the end of the trial, on May 16, 2006,

Blackson filed a Renewed Motion for Severance and Motion for

Judgment of Acquittal asserting, in part, that the government had

dismissed Count 31 by presenting no evidence. The government

acknowledged that it had offered no evidence on Count 31.

Count 31 did not appear on the verdict form submitted to the jury,

although the record does not indicate that the district court

formally dismissed the count.

Nonetheless, the district court judgment states that the jury

found Blackson guilty on Count 31, and imposes a sentence of

70

360 months’ imprisonment, based in part on that count. The

government acknowledges that this was in error, and we hold the

error is plain. See United States v. Olano, 507 U.S. 725, 732–37

(1993); United States v. Saro, 24 F.3d 283, 286–88 (D.C. Cir.

1994). Because the error may have affected Blackson’s sentence,

the error affects substantial rights, and permitting the error to go

uncorrected would seriously affect the integrity of judicial

proceedings. We therefore reverse Blackson’s conviction on

Count 31 and remand for resentencing.

XI

Simmons was convicted of conspiring to distribute one or

more kilograms of PCP, of conspiring to distribute ecstasy, of

RICO conspiracy, and of three counts of distribution of PCP. At

sentencing, the government argued that Simmons’ base offense

level under the Sentencing Guidelines should be 38 because he

actually knew or could reasonably foresee that the conspiracy

would involve more than 30 kilograms of PCP. Simmons argued

that 32 was the appropriate base level because he was only

convicted of a conspiracy involving one or more kilograms. The

district court agreed his base offense level was 32 and imposed

a two-level increase for the use of firearms within the scope of

the conspiracy, and a one-level increase based on the parties’

stipulation that the drug sales occurred within 1,000 feet of a

school. With this adjusted offense level of 35, combined with

Simmons’ Category II criminal history, the district court

calculated a Guidelines range of 188 to 235 months.

The district court stated that although it was unable to find

that Simmons could reasonably foresee the full 30 kilograms of

PCP distributed by the M Street Crew, it was “not comfortable

with 235 months either,” and it would impose a prison sentence

of 264 months, or 22 years. Aug. 24, 2006 Sent. Hg. at 46. To

explain that sentence, the district court noted the jury’s special

71

finding that the amount of PCP involved in the conspiracy

exceeded 30 kilograms. Although that finding was associated

with the CCE charge against Franklin only, the district court

concluded it was “perfectly legitimate to use that [amount] in

sentencing for other defendants to the extent it applies because

the conduct underlying the narcotics conspiracy, the RICO

conspiracy and the CCE count are all the same.” Id. at 48.

Regarding the extent of Simmons’ involvement in the

conspiracy, the district court found that the evidence showed he

“was on the street regularly with Mr. Franklin,” “delivered testers

to Monica Bell,” “delivered [PCP] to Roberta Moore,” and

“handled PCP at M Street by being a runner for Mr. Franklin.”

Id. The district court also referenced the evidence describing

Simmons as “a flunky,” and found that “he would regularly

retrieve PCP vials from Franklin’s truck and bring [them] to M

Street Crew members,” that he could be seen “on the video

cam[era] delivering [PCP] to the undercover officer [Leftridge],”

and that “he stored 144 empty vials in his mother’s house.” Id.

at 49. Nevertheless, the district court concluded that it could not

find that Simmons knew or could reasonably foresee that the

conspiracy involved the full 30 kilograms in view of evidence

that he was not on the street every day, that “he’s terribly, terribly

addicted and would go off on binges on some unknown

regularity,” and that it was not clear exactly how often Simmons

worked with Franklin. Id.

The district court turned to the sentencing factors in 18

U.S.C. § 3553(a). With regard to the nature and circumstances

of the offense, the district court found that Simmons was a

willing participant in a narcotics and RICO conspiracy. As to the

history and characteristics of the defendant, the district court

found that Simmons was addicted to drugs, suggesting a higher

sentence. Regarding the seriousness of the offenses, the district

court found that they were serious. Finally, as to the need for

72

adequate deterrence and to protect the public from further crimes,

the district court found that Simmons’ drug use made him a risk

to commit future crimes. Aug. 24, 2006 Sent. Hg. at 51–52.

Based on these findings, the district court concluded that a

sentence within the Guidelines range would not be “just

punishment” in view of Simmons’ conduct, convictions, history,

and characteristics, and sentenced Simmons to 264 months’

imprisonment. Id. at 52. Upon inquiring of his counsel whether

these were “the necessary findings,” Simmons’ counsel agreed

they were, and also agreed later in the sentencing hearing that the

district court had “addressed and resolved” all of Simmons’

objections. Id. at 52, 54.

On appeal, Simmons contends his sentencing was

procedurally unsound because the district court failed to give

adequate reasons for imposing an above-Guidelines sentence, and

the sentence was substantively unreasonable. Our review for

both procedural soundness — including whether the district court

considered the necessary factors and adequately explained a

deviation from the Guidelines — and the substantive

reasonableness of sentences is for abuse of discretion. Gall v.

United States, 552 U.S. 38, 51 (2007). Where a defendant failed

to make a timely objection to the alleged procedural error in the

district court, however, our review is for plain error. In re Sealed

Case, 527 F.3d 188, 191–92 (D.C. Cir. 2008). If there was no

procedural error, the court then considers whether the sentence

was substantively reasonable, giving “due deference” to the

district court’s determination that the § 3553(a) factors, as a

whole, justify the extent of the variance. Gall, 552 U.S. at 51.

The court reviews the substantive reasonableness of a sentence

under the abuse of discretion standard even when no objection

was raised in the district court. See United States v. Bras, 483

F.3d 103, 113 (D.C. Cir. 2007).

73

A

Simmons contends that the district court failed to provide

adequate reasons for imposing an above-Guidelines sentence. He

does not contest the determination of his base offense level or the

adjustments for guns and selling drugs within 1,000 feet of a

school. Instead, he takes issue with the district court’s reasons

for imposing a sentence that was 29 months above the upper

bound suggested by the Guidelines range. Maintaining that the

district court gave only two justifications for this variance — the

seriousness of the offense and his history of drug abuse —

Simmons contends drug abuse is not an appropriate basis for

imposing an above-Guidelines sentence because the Guidelines

proscribe taking drug dependence or abuse into account. He cites

§ 5H1.4 of the Guidelines, which states that “[d]rug or alcohol

dependence or abuse is not a reason for a downward departure,”

and various pre-Booker cases holding that drug history may not

be a basis for a departure, but no case holding that drug history

may not be a basis for an upward variance. Nevertheless, he

maintains the same policy rationale supports both propositions,

presumably that the Guidelines sentencing scheme encourages

defendants to admit and seek treatment for their drug

dependency. Appellants’ Br. at 139; see also id. at 138 (citing

United States v. Luscier, 983 F.2d 1507, 1510 (9th Cir. 1993));

United States v. Richison, 901 F.2d 778, 781 (9th Cir. 1990).

Because Simmons did not object in the district court, our

review of his procedural challenge is for plain error, and we find

none. The record shows the district court adequately explained

its reasoning. In addition, although the district court did consider

Simmons’ history of drug abuse as one factor in its sentencing

decision, the record does not support Simmons’ claim that the

district court “relied primarily” on that history of abuse in

imposing an upward variance. Appellants’ Br. at 137. The

district court mentioned a number of other factors, especially the

74

extent of his involvement in the overall conspiracy. In any event,

Simmons’ reliance on Guidelines § 5H1.4 is misplaced because

that provision refers only to downward departures based on drug

abuse; indeed, he overlooks that § 5H1.4 states that “[s]ubstance

abuse is highly correlated to an increased propensity to commit

crime,” suggesting drug abuse may be an appropriate reason for

an increased sentence.

B

Simmons contends, for the first time in his reply brief, that

the district court’s sentencing process was unsound because the

district court failed to provide him with a written statement of the

reasons for the variance as required under 18 U.S.C. § 3553(c)(2).

Simmons asserts the “Statement of Reasons” in the amended

judgment and conviction order (filed on Sept. 8, 2006) was left

blank as to the reasons for the upward variance. He relies on In

re Sealed Case, where this court held it was plain error for the

district court not to provide a written statement of reasons, stating

that “[w]hen a district judge fails to provide a statement of

reasons, as § 3553(c) requires, the sentence is imposed in

violation of law,” and “[t]he absence of a statement of reasons is

prejudicial in itself because it precludes appellate review of the

substantive reasonableness of the sentence.” 527 F.3d at 191,

193. Accordingly Simmons contends, because this court is

unable to determine the reasonableness of his sentence, a remand

for resentencing is required.

This contention fails for at least two reasons. First, the

contention is untimely because it is first raised in a reply brief.

See, e.g., United States v. Berkeley, 567 F.3d 703, 711 n.4 (D.C.

Cir. 2009); United States v. Johnson, 216 F.3d 1162, 1168 (D.C.

Cir. 2000). Second, the contention would be subject only to

review for plain error because Simmons did not so object in the

district court, and there is no error, much less plain error.

75

Although the complete judgment does not appear in the joint

appendix filed by the parties and the “Statement of Reasons” was

sealed in the district court, the complete judgment in fact includes

a “Statement of Reasons” by the district court referencing its

findings at the sentencing hearing.7 Under the section titled

“Advisory Guideline Sentencing Determination,” the district

court wrote: “Narcotics and RICO conspiracy of insufficient

foreseeability of 30 kg but significantly more than 1–3 kg,

offense of conviction: ÷ See sentencing transcript.” Statement

of Reasons at 2. In the section titled “Departures Authorized by

the Advisory Sentencing Guidelines,” the district court indicated

that the sentence was above the advisory Guideline range and

listed the following “facts justifying the departure”:

“Aggravating: Clearly foreseeable of more than 1–3 kg but not

full 30 of co-conspirators.” Id. With the “Statement of Reasons”

appended to the original judgment and commitment order, this

court is able to conduct appellate review of the reasonableness of

Simmons’ sentence, including the variance, and a remand is

unnecessary. See In re Sealed Case, 527 F.3d at 193. (Although

the “Statement of Reasons” termed Simmons’ increased sentence

a “departure,” the record makes clear the district court was

imposing a variance. Compare United States v. (Daniel) Brown,

578 F.3d 221, 225–28 (3d Cir. 2009).)

C

Simmons contends his sentence was substantively

unreasonable because his “sad personal history and

characteristics, and his limited role in the offenses of conviction,

would have supported a variance below the guideline range.”

7

The “Statement of Reasons” remains under seal except

insofar as this opinion refers to information in the Statement. See

United States v. Reeves, 586 F.3d 20, 22 n.1 (D.C. Cir. 2009); United

States v. Parnell, 524 F.3d 166, 167 n.1 (2d Cir. 2008).

76

Appellants’ Br. at 137–38. He points out that the government did

not request the upward variance and emphasizes his minor role in

the conspiracy: Unlike his co-conspirators, he did not make

much money from the conspiracy, did not possess a firearm, and

lived in poverty.

Simmons fails to demonstrate that his sentence was

substantively unreasonable for several reasons. He acknowledges

that the government advocated an initial base offense level of 38,

not 32, and he cannot deny that the evidence of his participation

in the conspiracy was substantial. The district court provided a

reasoned explanation for Simmons’ sentence based on the

statutory factors. As is evident from a comparison of his sentence

with the sentences imposed on the other appellants, the district

court accounted for the level and significance of Simmons’

participation in the conspiracy. See United States v. Thomas, 114

F.3d 228, 261–62 (D.C. Cir. 1997). And, in relying on

considerations invoking sentencing discretion, Simmons points

to no reason this court should not accord due deference to the

district court’s determination that the § 3553(a) factors justify a

variance. See Gall, 552 U.S. at 51.

XII

A

William Robinson, George Wilson, and Joseph Blackson

challenge the district court’s calculation of their Guidelines

ranges. They contend that the district court incorrectly attributed

to each of them the distribution of 30 or more kilograms of PCP.

The district court properly could find that more than 30

kilograms of PCP were involved in the M Street Crew

conspiracy. Pursuant to 21 U.S.C. § 848(b), the instructions

regarding the continuing criminal enterprise charge against

77

Franklin (Count 3) required the jury to find that the CCE

involved distributing at least 30 kilograms of PCP, and the jury

so found. The only CCE predicate offense involving that amount

of PCP was Count 1, narcotics conspiracy, of which all appellants

were found guilty. Drugs distributed by a co-conspirator in

furtherance of a conspiracy are attributable to a member of the

conspiracy so long as the distribution was “reasonably

foreseeable” to that member. United States v. Childress, 58 F.3d

693, 722 (D.C. Cir. 1995); U.S.S.G. § 1B1.3(a)(1)(B). Even if

reasonably foreseeable, however, a member of a conspiracy is not

necessarily accountable for a co-conspirator’s “side deals” that

are not in furtherance of the conspiracy. United States v. Saro, 24

F.3d 283, 288 (D.C. Cir. 1994).

Herbert Martin testified that he had supplied Franklin with

“[a]t least about 15, 20 gallons” of PCP. Mar. 14, 2006 AM Trial

Tr. at 65. Conservatively estimated, in accordance with the

instructions to the jury, 15 gallons is 39 kilograms. There was

evidence, however, that Franklin had sold 6 kilograms of PCP to

Ceasar Harris independent of the M Street Crew conspiracy.

Subtracting the 6 kilograms sold to Harris left 33 kilograms of

PCP. During the course of the investigation, the law enforcement

task force intercepted 6,916 of Franklin’s telephone calls and

there was no reference in the recorded conversations to outside

sales other than to Harris. Robinson, Wilson, and Blackson do

not claim, much less point to evidence of, any other side deals by

Franklin. Neither do they contend the jury instructions failed to

instruct on the scope of the conspiracy. Therefore, in the absence

of evidence of other side deals, the district court’s finding that the

M Street Crew distributed more than 30 kilograms of PCP was

not clearly erroneous. The question remains whether the 30

kilograms of PCP was reasonably foreseeable to Robinson,

Wilson, and Blackson individually.

78

• William Robinson. During sentencing the district

court made individualized findings that the M Street Crew sales

were foreseeable by Robinson in their entirety. We find no clear

error. The district court relied on the evidence that Robinson

“was engaged in selling activities almost daily,” that he “was the

source of PCP when Franklin was otherwise not handy,” and that

he “had regular and constant communications with Mr. Franklin

about the quantity of PCP on the street and who should get PCP

from whom and to whom should he sell it to and that sort of

thing.” Sept. 6, 2006 Sent. Hg. at 53. These findings are

supported by wiretaps and the testimony of Abney and

undercover officer Leftridge.

• George Wilson. In finding Wilson could reasonably

foresee the full extent of the PCP sold by the M Street Crew, the

district court referred to Wilson’s proximity to the day-to-day

activities of the Crew (“Wilson was on the street at 18th and M

Northeast daily”), his proximity to Franklin (“Wilson was in

almost daily contact with Mr. Franklin”), and his role in directing

sales (Wilson was “observant as to the actions of the crew and the

members and engaged in sales” and reported his observations to

Franklin). Aug. 17, 2006 Sent. Hg. at 37–38. These findings,

too, are supported by wiretaps and Abney’s testimony, and are

not clearly erroneous.

• Joseph Blackson. Blackson was incarcerated

following his arrest on July 29, 2003. The district court found

that “Mr. Blackson had direct knowledge of the growth of the

scope of the conspiracy,” that his trafficking to Officer Leftridge

was “part and parcel of the growth of that drug trafficking,” and

that “for a period of time he could certainly observe the level of

sales by his co[-]conspirators.” Aug. 31, 2006 Sent. Hg. at 66.

The district court also found that Blackson never “withdrew from

the conspiracy” and that he “immediately went back to

trafficking” after his release, so that he knew or could reasonably

79

foresee the full amount of PCP sold by the M Street Crew,

including that sold while he was incarcerated. Id. at 67. These

findings are not clearly erroneous. Blackson concedes that his

imprisonment in 2003 did not constitute a withdrawal from the

conspiracy, and he does not challenge the district court’s finding

that he went back to selling drugs upon his release. Testimony

from Ronnie Tucker, Abney, and undercover officer Leftridge

supports the district court’s finding that Blackson had sufficient

involvement in the conspiracy to reasonably foresee the amount

of PCP sold.

B

Wilson and Blackson also challenge the increase in their

sentences under the Guidelines for having played a management

or supervisory role with respect to the M Street Crew’s

distribution of PCP, ecstasy, and crack cocaine. See U.S.S.G.

§ 3B1.1(b). The Guidelines list a number of factors that a

sentencing court should consider when deciding whether to apply

an enhancement under § 3B1.1(b) for a defendant’s role,

including:

the exercise of decision making authority, the nature of

participation in the commission of the offense, the

recruitment of accomplices, the claimed right to a larger

share of the fruits of the crime, the degree of

participation in planning or organizing the offense, the

nature and scope of the illegal activity, and the degree of

control and authority exercised over others.

U.S.S.G. § 3B1.1 App. Note 4; see also United States v. Smith,

374 F.3d 1240, 1249 (D.C. Cir. 2004). The court has held that

“[a]ll persons receiving an enhancement [under § 3B1.1] must

exercise some control over others.” United States v. Graham,

80

162 F.3d 1180, 1185 (D.C. Cir. 1998). Because the evidence

supports such a finding as to Wilson and Blackson, we affirm.

• George Wilson. The evidence relied upon by the

district court at sentencing demonstrates both that a number of

the relevant factors were present in Wilson’s case and that the

district court considered them in sentencing him. Abney’s

testimony, for example, indicates that Wilson exercised decision-

making authority. Indeed, the district court cited Abney’s

testimony in stating that “Mr. Wilson directed others. Mr. Abney

characterized Mr. Wilson, Mr. Robinson and Mr. Blackson as

lieutenants as opposed to foot soldiers[, and] when Mr. Franklin

was absent, the street sellers would go to the lieutenants when

they needed advice.” Aug. 17, 2006 Sent. Hg. at 42. Additional

evidence relied upon by the district court shows Wilson directly

planning or organizing: A wiretapped conversation revealed

Wilson “talking of holding a gun to the man suspected of theft of

the crew drugs that also shows taking charge in a way that the

others did not.” Id. at 43. The district court further found based

on cooperating Crew-member testimony that Wilson had chased

a non-Crew member from the street in order “to protect the sales

for the organization.” Id. at 42–43. And, based on other

testimony, the district court found that Wilson was viewed as a

leader by Crew members. Id. at 43.

These findings are supported by evidence showing that

Wilson exercised “some control over others,” Graham, 162 F.3d

at 1185. For example, after classifying Wilson as a “lieutenant,”

Abney referred to “John [Franklin] and the lieutenants” as those

“whose recommendation or whose suggestion [it] was that there

be” a rotational system of drug selling. May 2, 2006 AM Trial

Tr. at 16, 98. These “lieutenants” resolved altercations among

the “foot soldiers” in Franklin’s absence. Abney’s view of

Wilson as a supervisor is also supported by at least one wiretap

recording on which Wilson was recorded telling Franklin that he

81

had admonished “foot soldier” Ronnie Tucker for “his failure to

maintain sales the way he was suppose[d] to.” Aug. 17, 2006

Sent. Hg. at 43. Given the district court’s findings and the record

evidence demonstrating his management or supervisory role,

Wilson’s contention that “the court did not take into account the

totality of Abney’s testimony” in sentencing him, Appellants’ Br.

at 150, is unpersuasive. See Smith, 374 F.3d at 1250.

• Joseph Blackson. The district court made a similar

finding regarding Joseph Blackson’s role in the conspiracy. The

district court found that Blackson was heavily involved in drug

sales on M Street, as exemplified by his dealings with undercover

officer Leftridge. He “was the one with whom Officer Leftridge

made her initial connections,” “he sold her wholesale quantities

of drugs,” and “he got the PCP that he sold from Mr. Franklin.”

Aug. 31, 2006 Sent. Hg. at 68. Blackson’s own words to

undercover officer Leftridge confirmed this: He told her “that he

and his brother supply everyone on M Street,” and that “he and

his brother sold Ecstasy before PCP.” Id. The district court also

found that investigating officers initially thought Blackson was

the Crew leader based on his “conduct and position,” and that

while in jail Blackson wanted to know what was happening to

others who were still on the street. Id. at 68–69. Additionally,

the district court found that some cooperating witnesses identified

Blackson as a “lieutenant.” Id. at 69. The district court

concluded:

Proving that Mr. Blackson was a leader in other ways

isn’t really in the record. But I think what is in the record

and the totality of the evidence is sufficient for the Court

to find that with individual attention to Mr. Blackson that

he was more of a supervisor/leader/manager type than the

guys who were selling on the streets. They certainly

viewed him in that way.

Id.

82

Although the district court’s findings might have been

clearer concerning whether Blackson exercised some control of

others, they suffice. There was record evidence supporting the

district court’s finding that Blackson was a manager/supervisor.

Most pertinently, Abney had named “John [Franklin] and the

lieutenants” as suggesting the rotational system of drug selling.

May 2, 2006 AM Trial Tr. at 98. According to Abney, these

“lieutenants,” including Blackson, resolved altercations among

“foot soldiers” in Franklin’s absence, id. at 13–15, and Ronnie

Tucker testified Blackson sometimes held PCP for Franklin when

he was not around, Apr. 24, 2006 PM Trial Tr. at 18. However,

the district court did agree with Blackson that Abney’s and

Tucker’s testimony was “somewhat disjointed and difficult to

really pin down.” Aug. 31, 2006 Sent. Hg. at 68. At times

Abney seemed to confuse status as a “lieutenant” possessing

command authority with either a dealer’s separate drug

connection, his financial success, or with his self-esteem. See

supra Part IX. Also, Tucker appeared at one point to equate

Blackson to Simmons, a “foot soldier”; this evidence might have

tended to show that Blackson was at the bottom level of the

conspiracy, which would not be sufficient to justify an

enhancement under § 3B1.1(b), Graham, 162 F.3d at 1184.

But recognizing these problems, the district court could sort

through the evidence, credit Abney’s testimony that Blackson

would settle altercations in Franklin’s absence, and find that some

“foot soldiers” viewed Blackson as having control over them.

Abney’s testimony supports the finding that Blackson exercised

the requisite degree of “control over others,” Graham, 162 F.3d

at 1185. Likewise, Blackson’s statements to Officer Leftridge

that he and Franklin supplied everyone on M Street and that

dealing with Franklin was the same as dealing with him both

indicate a managerial role in the conspiracy. Moreover, the fact

that the investigating officers initially thought Blackson was the

Crew leader at least supports the conclusion that his role was that

83

of a manager/supervisor. According due deference to the district

court’s application of the Sentencing Guidelines to evidentiary

findings, United States v. Tann, 532 F.3d 868, 874 (D.C. Cir.

2008), the district court had a sufficient basis to conclude that

Blackson was a manager/supervisor.

***

For the foregoing reasons, except for Blackson’s judgment

as to Count 31, we affirm the district court’s judgments. We

vacate Blackson’s judgment on Count 31 and remand to the

district court for further proceedings consistent with this opinion.

So ordered.