United States v. Devin Brown

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 17-4718

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DEVIN BROWN, a/k/a Deno Badazz,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at

Charleston. Richard Mark Gergel, District Judge. (2:16-cr-00123-RMG-5)

Submitted: July 26, 2018 Decided: August 7, 2018

Before GREGORY, Chief Judge, and DIAZ and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Louis H. Lang, CALLISON TIGHE & ROBINSON, LLC, Columbia, South Carolina, for

Appellant. Beth Drake, United States Attorney, OFFICE OF THE UNITED STATES

ATTORNEY, Columbia, South Carolina; John P. Cronan, Acting Assistant Attorney

General, Matthew S. Miner, Deputy Assistant Attorney General, Leshia Lee-Dixon,

Thomas E. Booth, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,

for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Devin Brown appeals his convictions for attempted murder in aid of racketeering

activity in violation of 18 U.S.C. §§ 1959(a)(5), 2 (2012), and using, carrying, and

discharging a firearm during and in relation to a crime of violence in violation of 18

U.S.C. §§ 924(c), 2 (2012). Brown contends that his convictions are not supported by

substantial evidence. We affirm.

We review de novo a district court’s denial of a motion for acquittal based on a

challenge to the sufficiency of the evidence. United States v. Palomino-Coronado, 805

F.3d 127, 130 (4th Cir. 2015). In resolving a sufficiency-of-the-evidence claim, we must

sustain the jury’s verdict “if it is supported by substantial evidence, viewed in the light

most favorable to the government. Substantial evidence is evidence that a reasonable

finder of fact could accept as adequate and sufficient to support a conclusion of a

defendant’s guilt beyond a reasonable doubt.” Id. (citation and internal quotation marks

omitted).

Under 18 U.S.C. § 1959(a)(5), “[w]hoever, . . . for the purpose of . . . maintaining

or increasing position in an enterprise engaged in racketeering activity” attempts to

murder any “individual in violation of the laws of any State or the United States” shall be

punished by imprisonment for not more than 10 years.

To establish a § 1959 claim, the government must prove beyond a

reasonable doubt, (1) that the organization was a RICO 1 enterprise, (2) that

1

Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968

(2012).

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the enterprise was engaged in racketeering activity as defined in RICO, (3)

that the defendant in question had a position in the enterprise, (4) that the

defendant committed the alleged crime of violence, and (5) that his general

purpose in so doing was to maintain or increase his position in the

enterprise.

United States v. Fiel, 35 F.3d 997, 1003 (4th Cir. 1994). Brown contends that the

evidence at trial was insufficient to establish that he had a position in a RICO enterprise

that was engaged in racketeering activity, and that he committed attempted murder to

maintain or increase his position in the enterprise.

As defined in § 1959, “enterprise includes any partnership, corporation,

association, or other legal entity, and any union or group of individuals associated in fact

although not a legal entity, which is engaged in, or the activities of which affect,

interstate or foreign commerce.” 18 U.S.C. § 1959(b)(2); see 18 U.S.C. § 1961(4) (2012).

A RICO enterprise is a group of persons associated together for a common

purpose of engaging in a course of conduct. It includes not only legal

entities but also any union or group of individuals associated in fact.

Nevertheless, an association-in-fact enterprise must have at least three

structural features: a purpose, relationships among those associated with the

enterprise, and longevity sufficient to permit these associates to pursue the

enterprise’s purpose

United States v. Pinson, 860 F.3d 152, 161 (4th Cir. 2017) (citations and internal

quotation marks omitted). “Racketeering activity” includes “any act or threat involving

murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene

matter, or dealing in a controlled substance or listed chemical . . . , which is chargeable

under State law and punishable by imprisonment for more than one year.” 18 U.S.C.

§§ 1959(b)(1), 1961(1) (2012).

3

Brown does not dispute on appeal that there was sufficient evidence at trial to

establish that he committed attempted murder under South Carolina law as alleged in the

indictment. 2 It was undisputed at trial that Brown was a member of a group called the

Wild Boys based in the Green Pond area of South Carolina, and that the members had

long-term relationships. Brown testified at trial that the Wild Boys were a record label

and rap group. However, several law enforcement officers testified that, based on their

investigations and experience, the Wild Boys were a street gang that, in addition to

producing rap videos, engaged in numerous violent acts and other criminal activities.

These witnesses discussed the hand signs, gang colors, and tattoos the Wild Boys used to

identify themselves, as well as the structure of the group. The Government also

introduced numerous Facebook posts and YouTube videos in which members of the Wild

Boys used hand signs, wore gang colors, and displayed firearms. This evidence was

sufficient to allow the jury to find that the Wild Boys were a RICO enterprise.

The evidence was also sufficient to establish that the Wild Boys engaged in

racketeering acts—specifically, a 2012 gas station robbery and the 2015 shooting of a

woman whose sons were associated with a rival gang. Brown does not dispute that these

crimes constitute racketeering activity, and contrary to Brown’s argument, the

Government presented enough testimony and circumstantial evidence to establish that the

Wild Boys committed the crimes.

2

The evidence at trial tended to show that the charged predicate act of attempted

murder was a drive-by shooting of a house associated with a rival gang.

4

Brown further asserts that the Government did not prove that he committed the

attempted murder in order to maintain or increase his position within the Wild Boys. The

Government presented evidence that several weeks before the shooting, Brown and

Joshua Manigault, another member of the Wild Boys, got into a dispute on Facebook

with Kobla Sanders, one of the men who was present at the shooting. Sanders testified

that Brown and Manigault were angry about a comment Sanders made on a post made by

Manigault’s girlfriend, and the subsequent exchange of words on Facebook included

references to Brown and Manigault “com[ing] to [Sanders’] neighborhood” and “dealing”

with him. This testimony, taken together with the other evidence regarding the

importance to the Wild Boys of responding to disrespect shown to its members, entitled

the jury to conclude that Brown committed attempted murder to maintain or increase his

position within the Wild Boys.

Because the jury’s verdict is supported by substantial evidence, we affirm the

district court’s judgment. 3 We dispense with oral argument because the facts and legal

3

Brown also contends that if his conviction under § 1959(a)(5) is invalid, his

§ 924(c) conviction is also invalid. Because Brown’s § 1959(a)(5) conviction is valid,

this argument fails. Further, we conclude that Brown waived the argument that 18 U.S.C.

§ 924(c)(3)(B) (2012) is unconstitutional by failing to raise it in his opening brief. See

Grayson O Co. v. Agadir Int’l LLC, 856 F.3d 307, 316 (4th Cir. 2017) (“A party waives

an argument by failing to present it in its opening brief or by failing to develop its

argument—even if its brief takes a passing shot at the issue.” (brackets and internal

quotation marks omitted)).

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contentions are adequately presented in the materials before this court and argument

would not aid the decisional process.

AFFIRMED

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