United States v. Shaheem Johnson

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 99-4093

SHAHEEM JOHNSON,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 99-4094

RAHEEM JOHNSON,

Defendant-Appellant.

Appeals from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Gerald Bruce Lee, District Judge.

(CR-97-314-A)

Argued: May 3, 2000

Decided: July 17, 2000

Before MURNAGHAN, LUTTIG, and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Luttig wrote the opinion, in

which Judge Murnaghan and Judge Michael joined.

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COUNSEL

ARGUED: Kenneth Michael Robinson, THE ROBINSON LAW

FIRM, Washington, D.C., for Appellant Shaheem Johnson; Preston

Burton, LAW OFFICES OF PLATO CACHERIS, Washington, D.C.,

for Appellant Raheem Johnson. William Neil Hammerstrom, Jr.,

Assistant United States Attorney, Alexandria, Virginia, for Appellee.

ON BRIEF: Cameron Robinson-Kourtesis, Nikolaos P. Kourtesis,

THE ROBINSON LAW FIRM, Washington, D.C., for Appellant

Shaheem Johnson. Helen F. Fahey, United States Attorney, Peter H.

White, Assistant United States Attorney, Alexandria, Virginia, for

Appellee.

_________________________________________________________________

OPINION

LUTTIG, Circuit Judge:

Shaheem and Raheem Johnson were convicted on nineteen counts

related to their drug conspiracy, in furtherance of which they mur-

dered five people. They now appeal their convictions. Finding no

reversible error, we affirm.

I.

On June 4, 1998, appellants Shaheem and Raheem Johnson, identi-

cal twin brothers, were charged in federal district court with conspir-

acy to distribute cocaine; murder in aid of racketeering; murder using

a firearm during a drug trafficking offense; and possession of a fire-

arm by a convicted felon. Shaheem was charged with engaging in a

continuing criminal enterprise; conspiracy to commit money launder-

ing; carrying a firearm during a drug trafficking offense; distribution

of cocaine base; and possession with intent to distribute cocaine base.

Raheem was charged with murder in aid of racketeering; and murder

using a firearm during a drug trafficking offense.

In a trial that lasted seven weeks, the government presented testi-

mony and evidence that demonstrated that Shaheem, Raheem, and

others organized a large-scale drug operation. The Johnsons obtained

2

cocaine from New York and Maryland, and distributed it in Ohio,

Virginia, North Carolina, and Maryland. The government showed that

in early 1992, Shaheem started the drug enterprise, and Raheem soon

took over part of the distribution for his brother. They used numerous

couriers and cars, titled in various names, to transport drugs, weapons,

and cash.

The government also presented testimony and evidence that

showed that Shaheem and Raheem were involved in five murders

related to their conspiracy, as follows. On July 30, 1995, Raheem,

Shawn Thomas, and Antonio Stevens drove to Philadelphia together,

where Raheem, who believed Stevens had stolen his money, shot and

killed Stevens. In March 1996, Raheem, Shaheem, and others shot

and killed Bernard Franklin, whom Shaheem believed had robbed his

residence and attacked his girlfriend. In December 1996, Shaheem

and Raheem hired Eldon Brown to kill Richard Villa, whom they

believed was planning to steal from them. And, in March 1997,

Raheem and Rickey Piranti murdered Shawn Thomas and his girl-

friend, Tracy Morgan. Because Thomas had recently been arrested,

Raheem feared Thomas might incriminate Raheem in order to make

a deal with the police on his own charges.

Shaheem and Raheem were both convicted on all counts charged

except that as to their joint murder counts, Shaheem was found guilty

of voluntary manslaughter and Raheem was found guilty of second

degree murder. Both Shaheem and Raheem were sentenced to multi-

ple life sentences. They now appeal.

II.

Shaheem argues that the district court erred when it failed properly

to instruct the jury on the continuing criminal enterprise count. The

federal CCE statute imposes penalties on "[a]ny person who engages

in a continuing criminal enterprise." 21 U.S.C.§ 848(a). It further

states that "a person is engaged in a continuing criminal enterprise if

(1) he violates any provision of this subchapter or subchapter II of this

chapter the punishment for which is a felony, and (2) such violation

is a part of a continuing series of [such] violations." 21 U.S.C.

§ 848(c) (emphasis added). When the district court instructed the jury

on the CCE count, it outlined the elements of the crime, and specifi-

3

cally instructed the jury that "[t]he phrase, [`]A continuing series of

violations,['] means three or more violations of the federal narcotics

laws, which are in some way related to one another." J.A. 837. At the

time, this court had held that the jury did not need to unanimously

find each violation that comprised the series. See United States v.

Hall, 93 F.3d 126, 129 (4th Cir. 1996), cert . denied, 519 U.S. 1151

(1997). Accordingly, the district court did not instruct the jury that it

must unanimously find each violation.

Shaheem claims that the district court erred when it failed to

instruct the jury that it must be unanimous in its finding of each viola-

tion comprising the continuing series of violations. Specifically,

Shaheem contends that under Richardson v. United States, 526 U.S.

813 (1999), which was decided after his trial, the Supreme Court

required that the jury be instructed that it must be unanimous in find-

ing each individual "violation" supporting the CCE conviction.

As Shaheem concedes, "[t]rial counsel did not object to the jury

instructions on Count 2, the CCE count," Appellants' Br. at 32, and,

therefore, we review the district court's failure to instruct the jury on

unanimity in the CCE charge for plain error, see id. Under plain error

review, we can only correct an error not objected to at trial if there

is an "error," that is "plain," and that"affect[s] substantial rights."

United States v. David, 83 F.3d 638, 641 (4th Cir. 1996) (quoting

United States v. Olano, 507 U.S. 725, 730-32 (1993)). And, even if

the error is plain and affects substantial rights, then we should not

exercise our discretion to correct the error "unless a miscarriage of

justice would result or the error seriously affect[s] the fairness, integ-

rity or public reputation of judicial proceedings independent of the

defendant's innocence." United States v. Cedelle, 89 F.3d 181, 184

(4th Cir. 1996) (citations omitted) (internal quotation marks omitted).

We agree with Shaheem that, under Richardson, the district court

erred when it failed to instruct the jury that it must unanimously find

each violation that constitutes the continuing series of violations. See

Richardson, 526 U.S. at 815 ("[A] jury has to agree unanimously

about which specific violations make up the `continuing series of vio-

lations.' . . . That is to say, a jury in a federal criminal case brought

under § 848 must unanimously agree not only that the defendant com-

mitted some `continuing series of violations' but also that the defen-

4

dant committed each of the individual `violations' necessary to make

up that `continuing series.'"); see also United States v. Brown, 202

F.3d 691, 699 (4th Cir. 2000) (recognizing that Richardson abrogated

United States v. Hall, the case in which this court held that the jury

need not unanimously find each violation).

We are likewise convinced that the error was plain error. In John-

son v. United States, 520 U.S. 461, 468 (1997), the Supreme Court

held that an error is plain "where the law at the time of trial was set-

tled and clearly contrary to the law at the time of appeal." This is pre-

cisely the case that we have here. Not only our circuit but others held

before Richardson that jury unanimity on which three offenses made

up the series of violations was not necessary. See Hall, 93 F.3d at

129; United States v. Anderson, 39 F.3d 331, 350-51 (D.C. Cir.

1994); United States v. Lehder-Rivas, 955 F.2d 1510, 1519 n.6 (11th

Cir. 1992). Richardson thereafter held that it was. See Richardson,

526 U.S. at 815.

Even so, we are satisfied that this is not a case in which we should

exercise our discretion to correct the error. At least fifteen of the

alleged fifty-seven overt acts the Johnsons engaged in in support of

their conspiracy to distribute cocaine were violations of narcotics

laws by Shaheem alone. J.A. 98-111. And, the government adduced

overwhelming evidence in the form of co-conspirators' testimony and

drugs found at Shaheem's residence to show that Shaheem committed

a multitude of violations of the federal narcotics laws. Even Shaheem

concedes that at least two counts for which Shaheem was convicted

could serve as predicate violations for the CCE conviction.1 See

Appellants' Reply & Opposition to Government's Attempt to File

Rule 28(j) Supplement, at 2. Shaheem's narrow point is that we can-

not technically know whether the jury agreed unanimously on the

third violation from any of the fifteen overt acts. And, technically, this

may be correct. But if ever there were a case in which we are confi-

dent that there is not a miscarriage of justice, it is this one, with a

multitude of offenses, none of which the defendant seriously chal-

_________________________________________________________________

1 Shaheem also concedes, by implication, that certain alleged overt acts

could qualify as violations. See Appellants' Br. at 34 ("The government

set forth over fifty overt acts in Count 1, many of which do not qualify

as `violations' . . . .").

5

lenges.2 Likewise, we are confident that the error did not seriously

affect the fairness, integrity, or public reputation of judicial proceed-

ings. Because the evidence adduced at trial was overwhelming, we are

convinced that "based upon the record in its entirety, the proceedings

against the accused resulted in a fair and reliable determination of

guilt." United States v. Hastings, 134 F.3d 235, 244 (4th Cir.) (quot-

ing Cedelle, 89 F.3d at 186), cert. denied, 523 U.S. 1143 (1998).

III.

We now turn to the various other challenges the Johnsons make to

their convictions and sentences.

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2 Indeed, Shaheem's strategy throughout has been not to contest his

involvement in drug trafficking. As illustrated by his counsel's closing

argument, the focus of his trial strategy was not to claim innocence of

drug dealing, but rather to persuade the jury not to convict him on the

murder charges and thus avoid the death penalty. Shaheem's counsel told

the jury in closing argument, "Nobody is fighting these drugs. There's no

way out on these drugs. You don't hear me talking about those drugs, do

you?" Trial Transcript, Vol. XXII (Dec. 11, 1998), at 191. He made other

statements such as "Shaheem Johnson sold drugs," id. at 193, "That

doesn't mean Shaheem isn't guilty of drug dealing," id. at 202, and

Shaheem "[s]old drugs all his life," id. at 215. Likewise, on appeal

Shaheem has acknowledged that he was involved in drug trafficking. As

we discuss in Section III.A., infra, the Johnsons (Shaheem and Raheem)

argue that the evidence was insufficient to convict them on a single drug

conspiracy because they were involved in multiple conspiracies. In the

course of making this argument, they concede drug dealing on a large

scale:

The [Johnsons] were both engaged in drug distribution activities,

and they both knew about the other's operation, but those facts

alone do not establish that they worked jointly in a common plan

or scheme. The evidence revealed that appellants each had their

own drug operations, with their own suppliers, distributors, and

couriers. On occasion, they would purchase large quantities of

narcotics together.

Appellants' Br. at 25.

6

A.

The Johnsons argue that the evidence presented at trial was insuffi-

cient to show that they were engaged in a single conspiracy to distrib-

ute cocaine. However, there was testimony that they traveled together

to New York to obtain cocaine, J.A. 286-88; that they pooled their

funds to purchase drugs from suppliers in New York, J.A. 215-17,

301-03; that together they purchased weapons from the same co-

conspirator, J.A. 387-88; that Raheem took over territory to aid

Shaheem in supplying cocaine to Maryland customers, J.A. 214-15;

that they together shot and killed Bernard Franklin, someone whom

they believed had stolen drug money from Shaheem, J.A. 194-95,

198-99, 227, 320, 343, 476, 702-05; and that together they hired

someone to murder Richard Villa, whom they suspected wanted to

steal from them, J.A. 520-21. Thus, we are confident that there was

sufficient evidence in the record so that the jury could reasonably

have found that they conspired together to distribute cocaine.

The Johnsons also claim that there was insufficient evidence to

prove that they aided, abetted, and hired Eldon Brown to murder

Richard Villa in violation of 18 U.S.C. § 1959. Under this section, the

government had to prove that Brown killed Villa"as consideration for

the receipt of, or as consideration for a promise or agreement to pay,

anything of pecuniary value from an enterprise engaged in racketeer-

ing activity, or for the purpose of gaining entrance to or maintaining

or increasing position in an enterprise engaged in racketeering activity

. . . ." 18 U.S.C. § 1959. According to the Johnsons, Brown had sev-

eral reasons to murder Villa, none of which would have increased

Brown's position in the Johnsons' racketeering activity. However, we

are convinced that there was sufficient evidence in the record for the

jury to find both that there was an agreement between the Johnsons

and Brown by which Brown would be paid from the Johnsons' racke-

teering proceeds to murder Villa, and that Brown was attempting to

increase or maintain his position in the Johnsons' drug enterprise.

Brown testified that he told the Johnsons that in order to "test" Villa,

he told Villa that he was going to rob the Johnsons, and that Villa

agreed to help. J.A. 516-18. He also testified that Shaheem told him

that Shaheem and Raheem had work for Brown, and that they wanted

him to murder "weak links" in the organization. J.A. 520 21. Finally,

he testified that the Johnsons agreed to pay Brown $150,000 for three

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murders, including the murder of Villa, J.A. 539, and that Shaheem

gave Brown the handgun he used to murder Villa, J.A. 524.

B.

The Johnsons argue that the district court erred by not excluding

hearsay statements allegedly made by Shawn Thomas regarding

Raheem's involvement in the murder of Antonio Stevens. Thomas

was unavailable to testify at trial because Raheem murdered him

before trial. Three witnesses testified that Thomas told them that he

was with Raheem when Raheem murdered Stevens.3 The district

court appears to have admitted Thomas' hearsay because, inter alia,4

Raheem forfeited his hearsay objections, under Fed. R. Evid.

804(b)(6), by having caused the unavailability of Thomas as a witness.5

The district court did not abuse its discretion in so holding. Under

Rule 804(b)(6), "[a] statement offered against a party that has

engaged or acquiesced in wrongdoing that was intended to, and did,

procure the unavailability of the declarant as a witness" is admissible

as an exception to the rule against hearsay. Here, Raheem murdered

Thomas at least in part to procure the unavailability of the only wit-

ness to his murder of Antonio Stevens.

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3 The witnesses who recounted details of the murder, as told to them

by Thomas, were Jeremy Williams, J.A. 434-42; Keah Lorrick, J.A. 583-

97; and Larry Jackson, J.A. 633-48, 801-04.

4 The district court also admitted the hearsay statements as statements

against Thomas' penal interest, under Fed. R. Evid. 804(b)(3), as state-

ments by a coconspirator made in furtherance of the conspiracy, under

Fed. R. Evid. 801(d)(2)(E), and as otherwise reliable and probative state-

ments under Fed. R. Evid. 807, the residual exception to the hearsay rule.

However, because we hold that the district court did not abuse its discre-

tion by admitting the statements under Fed. R. Evid. 804(b)(6), we

decline to review the court's other grounds for admitting the testimony.

5 In its summation of its ruling on the admissibility of the Thomas hear-

say, the district court did not specifically cite Rule 804(b)(6) as a ground

for its decision to admit the testimony. However, the government argued

that Rule 804(b)(6) was the primary ground for admissibility, J.A. 411-

27, and the court discussed the rule and its application to Raheem's case

before its summation, J.A. 427.

8

Raheem argues that Thomas' statements were not properly admit-

ted under this rule for two reasons. First, Raheem claims that the dis-

trict court should have conducted a hearing to confirm, by clear and

convincing evidence, that Raheem did cause Thomas' unavailability.

But see United States v. Emery, 186 F.3d 921, 926 (8th Cir. 1999)

(holding that a trial court need not hold a hearing under Rule

806(b)(6), but rather that it can admit the evidence at trial "contingent

upon proof of the underlying murder by a preponderance of the evi-

dence"), cert. denied, 120 S. Ct. 968 (2000). However, the court did

hold a lengthy conference outside the presence of the jury to discuss

the admission of Thomas' hearsay, as briefed by the government

before trial. At that time Raheem's counsel did not request a separate

evidentiary hearing, and did not contest that Raheem killed Thomas

to prevent him from testifying against Raheem on matters related to

the conspiracy. Rather, counsel's narrow argument was that the gov-

ernment could not prove that Thomas was killed to prevent him from

testifying specifically about the Stevens murder. Therefore, we cannot

conclude that the district court plainly erred when it accepted the gov-

ernment's position that Raheem did kill Thomas, presumably contin-

gent on the government proving that Raheem did cause Thomas'

unavailability. Even were we to conclude that the district court was

required to conduct a separate evidentiary hearing to assess whether

the government could show that Raheem did cause the unavailability

of Thomas as a witness, we do not believe the district court's failure

to conduct such a hearing in this case harmed Raheem. The govern-

ment presented evidence to prove that Raheem murdered Thomas in

the course of the trial, because Raheem was charged with murdering

Thomas. Additionally, we are confident that, in this case, where the

jury was convinced beyond a reasonable doubt that Raheem murdered

Thomas in furtherance of the conspiracy, there was sufficient evi-

dence presented at trial that Raheem caused Thomas' unavailability

as a witness.

Second, Raheem claims that even though Rule 804(b)(6) waives

his right to object to the fact that Thomas is not available for cross-

examination, the hearsay testimony must be "otherwise admissible as

if Thomas were available to testify." Appellants' Br. at 48 (citing

United States v. Thevis, 665 F.2d 616 (5th Cir. 1982) (holding, before

Rule 804(b)(6) was enacted, that even when the witness' unavaila-

bility is shown by clear and convincing evidence to have been caused

9

by the objecting party, "the trial court should scrutinize the proffered

statements to ensure that the evidence is not unreliable"), cert. denied,

459 U.S. 825 (1982)). Even if we were to conclude that in order to

admit statements under Rule 804(b)(6), the statements must be of a

nature such that they would be admissible if the unavailable witness

were available to testify, Raheem has not articulated how such a

requirement would make Thomas' statements inadmissible. That is,

Raheem has failed to articulate how, if Thomas had made the state-

ments himself on the witness stand, they would have been inadmissi-

ble. According to the witnesses who did testify, Thomas claimed to

have been present at the murder of Stevens and to have witnessed

Raheem shoot and kill Stevens. Thus, Thomas apparently had first-

hand knowledge of Raheem's murder of Stevens and presumably

could have testified to this had Raheem not murdered Thomas.

C.

The Johnsons also claim that the district court erred when it denied

their motion for severance, because they were actually involved in

separate drug enterprises and were thus each prejudiced by evidence

presented against the other at trial.6 For the reasons below, we con-

clude that the district court did not err when it denied the Johnsons'

motion for severance. First, the district court provided a cautionary

instruction to the jury to prevent it from grouping all of the evidence

against both defendants:

A separate crime is alleged against one or more of the

defendants in each count of the indictment. Each alleged

offense and any evidence pertaining to it should be consid-

ered separately by the jury.

The fact that you find one defendant guilty or not guilty

of one of the offenses charged should not control your ver-

_________________________________________________________________

6 The Johnsons also argue that because they are identical twins, the jury

could easily have been confused, and they should have been tried sepa-

rately. However, they cite nothing in the record to indicate that witnesses

confused them or that they were not separately identified. Thus, we are

not convinced that they were prejudiced by being tried together merely

because they are twins.

10

dict as to any other offense charged against that defendant

or any other defendant. You must give separate and individ-

ual consideration to each charge against each defendant.

J.A. 833-34; see United States v. Porter , 821 F.2d 968, 972 (4th Cir.

1987) ("No prejudice exists if the jury could make individual guilt

determinations by following the court's cautionary instructions,

appraising the independent evidence against each defendant."), cert.

denied, 485 U.S. 934 (1988). Second, the jury did distinguish the evi-

dence against each defendant as demonstrated by the fact that it

reached differing verdicts for the Johnsons on two counts involving

murder. See id. ("Convictions should be sustained if it may be

inferred from the verdicts that the jury meticulously sifted the evi-

dence.").

D.

The Johnsons also claim that the district court erred when it did not

permit them to present testimony related to the misconduct of a gov-

ernment witness, Rickey Piranti. The Johnsons wanted to question a

witness about homicides allegedly committed by Piranti, which did

not result in a conviction, in order to show that Piranti might have lied

to avoid an indictment on those homicides. However, we are confi-

dent that the district court did not err when it refused to allow the

Johnsons to question another witness about Piranti's alleged homi-

cides. Fed. R. Evid. 608(b) provides that,

[s]pecific instances of the conduct of a witness, for the pur-

pose of attacking . . . the witness' credibility, other than con-

viction of crime . . ., may not be proved by extrinsic

evidence. They may, however, in the discretion of the court,

if probative of truthfulness or untruthfulness, be inquired

into on cross-examination of the witness . . . concerning the

witness' character for truthfulness or untruthfulness.

Under Rule 608(b), the Johnsons could not question other witnesses

about Piranti's alleged homicides, but they were permitted to question

Piranti, on cross-examination, about the alleged homicides. Addition-

ally, we are confident that the district court did not err in refusing to

allow the Johnsons to question a witness about Piranti's misconduct,

because the district court found that such questioning would only con-

fuse the jury on a tangential matter: "to allow introduction of this

11

question before this witness . . . is only going to inject confusion. It's

not relevant to any factor in terms of proof of this conspiracy. It

doesn't tend to prove or disprove any material fact in issue. Signifi-

cant other evidence has already been presented and more will be pres-

ented, I'm sure, bearing on this witness' credibility, and all this will

do is promote confusion, it's a collateral matter." J.A. 712-13.

E.

Raheem contends that the trial court abused its discretion when it

admitted testimony by a forensic expert, Sandra Wiersema, that com-

pared tire tread impressions recovered from the scene of Raheem's

alleged killing of Antonio Stevens with tires recovered from

Raheem's car. At trial he objected to the testimony on the grounds

that it was prejudicial and inflammatory because millions of the par-

ticular tires that made the tread marks were in circulation and it was

impossible to know when the tread marks had been left at the scene

of the crime. However, we conclude that the court did not err in find-

ing that the testimony's probative value outweighed any prejudicial

value. The court properly weighed the factors relevant to the admissi-

bility of the evidence -- eyewitness statements that a car matching

the description of Raheem's car was seen leaving the scene of the

murder; the timeliness in which the tire tread impressions were made

after the murder; the fact that the expert could identify the particular

make of the tire that left the marks; the fact that such tires were not

manufactured until six months before the murder; and the likely num-

ber of vehicles with this type of tire -- and ruled that the tire tread

impressions were relevant and material. And, defense counsel vigor-

ously cross-examined Wiersema, and made the point, in closing argu-

ment, that the tire tread impressions only matched the tread marks to

Goodyear Eagle Aqua Tred tires, and did not necessarily match

Raheem's car to the impressions.

The Johnsons also argue that the district court erred by excluding

their expert witness, Dr. Brownlee, from testifying regarding the

cause and manner of death of two of the Johnsons' alleged homicide

victims, Shawn Thomas and Tracy Morgan. We cannot say that the

district court erred by excluding Brownlee's testimony, because the

Johnsons did not disclose required information about the expert's

scheduled testimony to the government before trial. Under Fed. R.

Crim. P. 16(b)(1)(C), the Johnsons were obligated to disclose to the

12

government a written summary of the expert's expected testimony,

including the witness' opinions, the bases and reasons therefor, and

the witness' qualifications. Although the Johnsons do claim that they

turned over Brownlee's resume to the government, there is nothing in

the record that demonstrates that they complied with the other

requirements of Rule 16, and the transcript indicates that defense

counsel did not disclose the doctor's opinion to the government, J.A.

799.

F.

Raheem argues that he could not be sentenced consecutively under

both 18 U.S.C. § 1959(a)(1) and § 924(j) for the murders of four indi-

viduals, because the charge for RICO murder, under section 1959, is

a lesser included offense of the charge for committing a murder using

a firearm during a drug trafficking offense, under section 924.7

The district court did not err when it sentenced Raheem separately

for both convictions. The same conduct can support convictions and

sentencing under two different federal statutes as long as each statute

requires proof of an element that the other does not. See United States

v. Terry, 86 F.3d 353, 356 (4th Cir. 1996) ("[F]or purposes of double

jeopardy analysis we examine only the statutory elements to deter-

mine if the elements of the two crimes necessarily overlap. . . .

Because each crime charged contains an element that the other does

not, the statutes pass the Blockburger test." (citing Blockburger v.

United States, 284 U.S. 299 (1932))), cert . denied, 524 U.S. 940

(1998). If the elements of the two statutes do not necessarily overlap,

_________________________________________________________________

7 To prove a violation of section 1959(a)(1), the government must show

that there was (1) an enterprise engaged in racketeering activity, (2) mur-

der or aiding and abetting another person in murdering, and (3) murder

undertaken for the purpose of gaining entrance into or maintaining the

defendant's position in the enterprise, or in exchange for anything of

pecuniary value. See 18 U.S.C. § 1959(a)(1).

To prove a violation of section 924(j), the government must show that

there was (1) a drug trafficking crime committed, (2) the use of a firearm

during the commission of the trafficking crime, and (3) malice afore-

thought in causing the death of the victim in relation to the commission

of the crime. See 18 U.S.C. § 924(j).

13

"then multiple punishments are presumed to be authorized absent a

clear showing of contrary Congressional intent." Id. Under section

1959, there is no requirement, as there is under section 924, that a

firearm be used or that there be a drug trafficking crime. Likewise,

under section 924, there is no requirement, as there is under section

1959, that the killing have anything to do with a racketeering enter-

prise, or that there be a promise or exchange of anything of pecuniary

value. Therefore, each statutory provision includes an element that the

other does not, and multiple punishments are presumed.

Raheem argues that there was clear congressional intent that an

individual not be separately punished for violating both provisions.

He cites a House Report that is part of the legislative history of the

Violent Crime Control and Law Enforcement Act of 1994, under

which both statutory provisions were passed. It reads: "[i]n carrying

out directions from the Congress, the U.S. Sentencing Commission

shall . . . avoid duplicative punishment for substantially the same

offense." H. Rep. No. 103-711, at 388. However, we do not read this

direction to the Sentencing Commission to generally prohibit separate

punishment for individual offenses, which have different elements,

even when they relate to the same conduct. Accordingly, we cannot

conclude that this general directive to the Sentencing Commission

expresses clear congressional intent that an individual not be punished

separately under section 1959 and section 924. Therefore, we con-

clude that the district court did not err when it permitted Raheem to

be sentenced separately under each provision.8

CONCLUSION

For the reasons stated herein, we affirm the Johnsons' convictions

on all counts.

AFFIRMED

_________________________________________________________________

8 We also reject Raheem's claim that his trial counsel was ineffective

because the record does not support this claim. And, we have reviewed

the claims made by Shaheem in his motion for leave to file a pro se sup-

plemental brief, and finding those claims to be meritless, we deny the

motion.

14