United States v. Larry Wilkerson

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 3, 2020 Decided July 24, 2020

No. 10-3037

UNITED STATES OF AMERICA,

APPELLEE

v.

LARRY WILKERSON,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:00-cr-00157-15)

Sebastian K.D. Graber, appointed by the court, argued the

cause for appellant. With him on the briefs was Timothy Cone,

appointed by the court.

Nicholas P. Coleman, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief were Jessie K. Liu,

U.S. Attorney, at the time the brief was submitted, and

Elizabeth Trosman and Suzanne Grealy Curt, Assistant U.S.

Attorneys.

Before: SRINIVASAN, Chief Judge, HENDERSON, Circuit

Judge, and RANDOLPH, Senior Circuit Judge.

2

Opinion for the Court filed by Chief Judge SRINIVASAN.

SRINIVASAN, Chief Judge: In November 2000, a grand

jury indicted appellant Larry Wilkerson and fifteen

codefendants on 158 counts related to a violent narcotics-

distribution conspiracy that operated in D.C. throughout the

1990s. Appellant was charged with conspiracy to distribute

and possess with intent to distribute cocaine, cocaine base,

heroin, and marijuana, conspiracy to participate in a racketeer-

influenced corrupt organization, four counts of aiding and

abetting first-degree murder, four corresponding counts of

aiding and abetting a continuing criminal enterprise (CCE)

murder, and one count of aiding and abetting first-degree

felony murder.

Many of appellant’s codefendants pled guilty and some

also agreed to cooperate with the government. The rest went

to trial in groups. “Group One” consisted of six defendants,

including the conspiracy’s leaders, Kevin Gray and Rodney

Moore. That trial concerning the Gray-Moore conspiracy

ended in guilty verdicts and substantial sentences, which this

court affirmed in part and vacated in part in United States v.

Moore, 651 F.3d 30 (D.C. Cir. 2011), aff’d in part sub nom.

Smith v. United States, 568 U.S. 106 (2013). “Group Two”

consisted of six more defendants and similarly resulted in

guilty verdicts and lengthy sentences, which this court affirmed

in part and reversed in part in United States v. McGill, 815 F.3d

846, 877 (D.C. Cir. 2016), cert. denied, 138 S. Ct. 58 (2017).

Appellant was tried separately from his codefendants. On

September 22, 2004, a jury found appellant guilty on all counts

except one count of aiding and abetting first-degree murder and

a corresponding count of aiding and abetting CCE murder. On

April 20, 2010, the district court sentenced appellant to life

imprisonment.

3

Appellant now appeals. He raises a number of challenges,

including to the district court’s dismissal of a juror during

deliberations and to the district court’s rejection of his motion

to dismiss the RICO conspiracy count as time-barred. We

reject his challenges and affirm his convictions and sentence.

I.

We first consider the district court’s dismissal of a juror

who, after deliberations began, expressed her disagreement

with the applicable law and her inability to apply it. Appellant

contends that the district court’s dismissal of the juror violated

his Sixth-Amendment right to conviction by a unanimous jury.

We conclude that the district court did not err.

A.

On September 8, 2004, after two months of trial, the jury

began deliberations. United States v. Wilkerson, 656 F. Supp.

2d 1, 2 (D.D.C. 2009) (“Wilkerson I”). Three-and-a-half days

into deliberations, the district judge received the following

handwritten note from a juror:

“I, juror number 0552, request that I be replaced with an

alternate in the deliberation of Larry Wilkerson. I strongly

disagree with the laws and instructions that govern this

deliberation, and I cannot follow them. Because I feel so

strongly about this, it may affect my decisions in this

matter. In other words, a possible bias decision. In

addition, I am experiencing emotional and mental distress.

For this alone, I felt it was enough for me to ask for a

replacement. I would not be asking for this request, if I

didn’t feel that this was a serious issue. Please take this

request under strong consideration. I apologize, for the

4

delay in this request, but if it is at all possible please

remove me from this deliberation. Sincerely, Juror 0552.”

Id.

The district court decided to ask Juror 0552 about her note.

The following colloquy ensued:

COURT: All right. Thank you. In your note I just want

to review it with you and ask you a couple of questions

about it. And I cannot go into your deliberations or what’s

going on in the jury room. You understand that? I don’t

want to hear anything about the deliberations or intrude in

any way, but because of your note I need to ask you a

couple of questions. . . . You said that you request to be

replaced because you strongly disagree with the laws and

instructions that govern this deliberation and you cannot

follow them. In other words, I just need to ask you when

you make that statement you mean the instructions and the

law that I’ve given to you in this case we’re talking about?

JUROR 0552: Yes.

COURT: And although you took an oath to follow the

instructions and the law you feel you cannot do so; is that

fair?

JUROR 0552: Yes.

COURT: And you were very fair about it. You wrote I

feel so strongly about this it may affect my decisions in

this matter. In other words, I may have possible bias

decision. And because you’re disagreeing with the law, is

that what you’re saying?

JUROR 0552: Yes.

COURT: You also said you’re feeling emotional and

mental distress. You felt that alone was enough to ask for

replacement. Is that just because of deliberations you

mean? I don’t want to get --

5

JUROR 0552: The whole thing.

COURT: The whole case?

JUROR 0552: The whole case.

COURT: Let me ask you about the law. You’ve read the

instructions. You’ve heard my law [sic] we’re talking

about. And it’s your opinion you cannot follow the law

and apply it in this case? Is that what you’re saying?

JUROR 0552: I cannot follow it because I do not agree

with it.

COURT: You do not agree with the law?

JUROR 0552: No.

COURT: I don’t want to get in your deliberations now.

JUROR 0552: Okay.

COURT: You just don’t agree with the law?

JUROR 0552: Uh-uh.

COURT: And you came to this belief after seriously

considering you say here that you didn’t, you know, you

wouldn’t ask for this but you didn’t feel you felt it was

such a serious issue?

JUROR 0552: It is serious. We’re dealing with

somebody’s life.

COURT: And under the law that I’ve given you you

disagree with that? Is that what you’re saying?

JUROR 0552: Yes.

Id. at 3.

After some further discussion with counsel, the district

court decided to dismiss Juror 0552. Id. Based on Juror 0552’s

note, the above colloquy with her, the brevity of the jury’s

deliberations relative to the length and complexity of the trial,

and the lack of any substantive jury questions, the district court

found as a matter of fact that Juror 0552 sought to be dismissed

because she disagreed with the applicable law rather than

6

because of any concerns about the evidence. Trial Tr. 36–38,

Sept. 15, 2004, 8 J.A. 2551–53.

Instead of proceeding with eleven jurors, the district court

replaced Juror 0552 with an alternate. Wilkerson I, 656 F.

Supp. 2d at 4 n.3. On September 22, 2004, the reconstituted

jury returned guilty verdicts on all counts except one first-

degree-murder count and an associated CCE murder count.

Appellant moved for a new trial, arguing that the district court

had violated his Sixth-Amendment rights by dismissing Juror

0552. The district court denied the motion. Id. at 10–11.

B.

Appellant renews his contention that the dismissal of Juror

0552 violated his Sixth-Amendment rights. Appellant

challenges both the district court’s finding that Juror 0552’s

concerns were with the law, not the evidence, and the district

court’s conclusion that disagreement with the law is a valid

ground for dismissal. We disagree with both challenges. We

hold that intent to disregard the law constitutes a valid ground

for dismissing a juror and that the district court permissibly

dismissed Juror 0552 on that basis.

1.

Federal Rule of Criminal Procedure 23(b) authorizes

dismissal of a juror during deliberations for “good cause.” Fed.

R. Crim. P. 23(b)(3). “A variety of issues” can constitute

“good cause” to excuse a juror, “including illness, family

emergency, or, . . . jury misconduct.” United States v. McGill,

815 F.3d 846, 866 (D.C. Cir. 2016) (internal quotation marks

omitted). “[A]ction by jurors that is contrary to their

responsibilities” can constitute good cause. Id. (internal

quotation marks omitted).

7

Because a district court, “based on its unique perspective

at the scene, is in a far superior position than [a court of

appeals] to appropriately consider allegations of juror

misconduct,” we review a district court’s dismissal of a juror

“only for an abuse of discretion.” Id. at 867 (quoting United

States v. Boone, 458 F.3d 321, 329 (3d Cir. 2006). The Sixth

Amendment, however, constrains that discretion. Id. This case

presents a question we have previously left open: whether the

Sixth Amendment precludes dismissing a juror “for refusing to

apply the relevant substantive law.” United States v. Brown,

823 F.2d 591, 597 (D.C. Cir. 1987). We now answer that

question in the negative: the Sixth Amendment does not afford

a defendant the right to a juror who is determined to disregard

the law.

We have already decided as much with regard to trial

proceedings that come before jury deliberations. In particular,

we have held that the Sixth Amendment provides no right to a

jury instruction on nullification. United States v. Dougherty,

473 F.2d 1113, 1130–37 (D.C. Cir. 1972). As we later

explained, a “jury has no more ‘right’ to find a ‘guilty’

defendant ‘not guilty’ than it has to find a ‘not guilty’ defendant

‘guilty.’” United States v. Washington, 705 F.2d 489, 494

(D.C. Cir. 1983). Rather, “it is the duty of juries in criminal

cases to take the law from the court, and apply that law to the

facts as they find them to be from the evidence.” Sparf v.

United States, 156 U.S. 51, 102 (1895). Were it otherwise,

juries would “become a law unto themselves,” such that “our

government [would] cease to be a government of laws, and

[would] become a government of men.” Id. at 101, 103. For

the same reasons, a juror intent on disregarding the law may be

dismissed for cause during voir dire. See, e.g., Adams v. Texas,

448 U.S. 38, 45 (1980).

8

The Sixth Amendment provides no more right to a juror

determined to disregard the law during deliberations than it

does beforehand. The Second Circuit thus has “categorically

reject[ed] the idea that, in a society committed to the rule of

law, . . . courts may permit [jury nullification of the law] to

occur when it is within their authority to prevent.” United

States v. Thomas, 116 F.3d 606, 614 (2d Cir. 1997). The court

reasoned that, “[i]nasmuch as no juror has a right to engage in

nullification” of the applicable law, district courts “have the

duty to forestall or prevent such conduct” if it can be done

without “interfer[ing] with guaranteed rights or the need to

protect the secrecy of jury deliberations.” Id. at 616. The

Third, Ninth, and Eleventh Circuits agree, and we are aware of

no court of appeals to conclude otherwise. See United States

v. Fattah, 914 F.3d 112, 149 (3d Cir. 2019); United States v.

Christensen, 828 F.3d 763, 806 (9th Cir. 2015); United States

v. Oscar, 877 F.3d 1270, 1287 (11th Cir. 2017). We join our

sister circuits’ unanimous view.

It is true, as we have recognized, that juries might

sometimes “abuse their power and return verdicts contrary to

the law and instructions of the court.” Washington, 705 F.2d

at 494. But “[s]uch verdicts are lawless, a denial of due process

and constitute an exercise of erroneously seized power.” Id.

The Sixth Amendment provides a defendant no right to such an

outcome. On the contrary, when a juror’s intent to disregard

the law comes to the attention of the court, “it would be a

dereliction of duty for a judge to remain indifferent.” Thomas,

116 F.3d at 616. Consequently, we hold that dismissal of a

juror during deliberations for intent to disregard the law does

not violate a defendant’s Sixth-Amendment rights.

9

2.

While intent to disregard the applicable law constitutes a

valid basis for dismissal, “a court may not dismiss a juror

during deliberations if the request for discharge stems from

doubts the juror harbors about the sufficiency of the

government’s evidence.” Brown, 823 F.2d at 596. If it were

otherwise, “the government [could] obtain a conviction even

though a member of the jury . . . thought that the government

had failed to prove its case,” rendering a defendant’s Sixth-

Amendment right to a unanimous verdict “illusory.” Id.;

accord Thomas, 116 F.3d at 621. A court thus might face the

“often difficult distinction between the juror who favors

acquittal because he is purposefully disregarding the court’s

instructions on the law, and the juror who is simply

unpersuaded by the Government’s evidence.” Thomas, 116

F.3d at 621. “[A]n effort to act in good faith may easily be

mistaken” for “purposeful disregard of the law.” Id. at 618.

Moreover, an effort by the court to clarify whether a juror

intends to disregard the law or simply finds the evidence

unpersuasive runs the risk of “intrud[ing] on the secrecy of the

jury’s deliberations.” Brown, 823 F.2d at 596. Navigating the

tension between the “duty to dismiss jurors for misconduct”

and the “equally, if not more, important [duty to] safeguard[]

the secrecy of jury deliberations” is a “delicate and complex

task.” Thomas, 116 F.3d at 618. “[A] court may not delve

deeply into a juror’s motivations because [doing so may]

intrude on the secrecy of the jury’s deliberations.” Brown, 823

F.2d at 596.

Cognizant of those competing considerations, this court in

Brown decided to “err[] on the side of Sixth-Amendment

caution.” McGill, 815 F.3d at 867. We held that, “if the record

evidence discloses any possibility that the request to discharge

10

stems from the juror’s view of the sufficiency of the

government’s evidence, the court must deny the request.”

Brown, 823 F.2d at 596. Applying that standard to the facts in

Brown, we rejected the juror’s dismissal because the record

“indicate[d] a substantial possibility that [the juror] requested

to be discharged because he believed that the evidence offered

at trial was inadequate to support a conviction.” Id. Several

other circuits have since adopted our approach in Brown. See,

e.g., United States v. Kemp, 500 F.3d 257, 304 (3d Cir. 2007);

United States v. Abbell, 271 F.3d 1286, 1302 (11th Cir. 2001);

United States v. Symington, 195 F.3d 1080, 1087 (9th Cir.

1999); Thomas, 116 F.3d at 622.

The district court here applied the Brown standard, finding

no substantial possibility that Juror 0552’s request to be

dismissed stemmed in any way from her views about “the

sufficiency of the government’s evidence.” Brown, 823 F.2d

at 596. Rather, the juror asked “to be replaced because she

strongly disagrees with the law[s] that govern this deliberation

and cannot follow them.” Trial Tr. 37, Sept. 15, 2004, 8 J.A.

2552. When defense counsel suggested that the juror might

have had evidence-based reservations about “the law applied

to the facts,” as opposed to concerns about the law alone, the

court rejected that possibility: “Her note was very clear. She

wants to be relieved of the duty because she disagree[s] with

the law.” Id. at 32, 8 J.A. 2547. And she so explained, the

court found, “without any reference whatsoever to any

evidentiary concerns or the strength of the government’s

evidence or the dissatisfaction with the government’s

presentation of the case.” Id. at 38, 8 J.A. 2553. Instead, “her

only expression [was] that she cannot follow the law and she

disagrees with it and she reaffirmed that orally.” Id. The court

was “satisfied beyond a reasonable doubt as a judge of her

credibility from her statements in the letter and her statements

on the record that she will not follow the law[s], that she

11

strongly disagrees with them and she’ll not follow them

contrary to her oath of office.” Id. The court thus found no

substantial possibility of an evidence-based concern. Id.

We see no basis to set aside the district court’s finding to

that effect. As the court explained, when Juror 0552 sent her

note, the jury had yet to submit any substantive questions and

had been deliberating for only three days, after a months-long

trial involving an extensive amount of evidence covering

numerous counts and a correspondingly complex set of

instructions and verdict form. That context, the court

understandably believed, was not suggestive of a hold-out juror

based on the evidence. And more importantly, the juror’s

statements did not indicate any evidentiary concerns. As the

court explained, her note stated unambiguously that she

disagreed with the law without referencing any evidentiary

concerns. In response to the court’s questioning, she confirmed

that she disagreed with the law seven times, never once

referencing the evidence, much less suggesting any evidence-

based concerns.

To be sure, in her note, Juror 0552 conveyed that “[i]n

addition” to her disagreement with the law, she was

“experiencing emotional and mental distress.” Wilkerson I,

656 F. Supp. 2d at 2. When the district court asked whether

her distress was “because of deliberations,” she replied that it

was “the whole thing,” i.e., “the whole case.” Id. at 3.

Appellant asserts that the whole case includes the evidence.

But Juror 0552’s statement that her emotional distress related

to “the whole thing” does not evince an evidentiary concern as

such—i.e., it did not amount to “record evidence disclos[ing] a

possibility that [she] believe[d] that the government ha[d]

failed to present sufficient evidence to support a conviction.”

Brown, 823 F.2d at 597. The district court understood her

distress to stem from “concern[s] there was a lot at stake and

12

she said a life at stake,” not from any concerns associated with

the evidence. Trial Tr. 38, Sept. 15, 2004, 8 J.A. 2553. On that

record, the court did not err in discerning no substantial

possibility that her distress derived from an evidentiary

concern. (After the trial, it became apparent that the juror had

“fallen for” and become “fixated” with appellant, and she

visited him in jail some fifty times. United States v. Wilkerson,

656 F Supp. 2d 11, 16–17 (D.D.C. 2009) (“Wilkerson II”)).

The contrast between the record in this case and the one in

Brown is instructive. In Brown, the jury had been deliberating

for five weeks when it sent the following note: “When is a

defendant not guilty? When all jurors give a unanimous verdict

vote of not guilty or, at least, one gives a vote of not guilty?”

Brown, 823 F.2d at 594. The district court instructed the jury

to continue deliberations to reach a unanimous verdict. Id.

Later that day, the court received another note, reading: “I

Bernard Spriggs am not able to discharge my duties as a

member of this jury.” Id. When the court questioned Spriggs,

he indicated that he had concerns with “the way [the act is]

written and the way the evidence has been presented,” and that,

had “the evidence [been] presented in a fashion in which the

law is written, then, maybe, [he] would be able to discharge

[his] duties.” Id. at 597 (emphasis in original). We held that

Spriggs’s dismissal violated the defendants’ right to conviction

by a unanimous jury, reasoning that we could not conclude

“with any conviction” that Spriggs’s request “stemmed from

something other than this view” of the evidence. Id. (emphasis

in original). Because the “record evidence in th[e] case

indicate[d] a substantial possibility” that Spriggs’s request

stemmed from evidentiary doubts, his dismissal violated the

defendants’ Sixth-Amendment rights. Id. at 596.

The record in this case is markedly different. First, in

Brown, Spriggs’s note came five weeks into deliberations and

13

on the same day the court instructed the jury to keep

deliberating after the jury asked whether it had to be

unanimous. Id. at 594. That context suggested that Spriggs

may have been a holdout. By contrast, Juror 0552’s note came

only three days after a two months-long trial covering many

crimes over many years and the jury had yet to send a single

substantive note. Second, in Brown, when asked about his

disagreement with the law, Spriggs referenced his

dissatisfaction with the evidence and even indicated that he

would have had no problem if the evidence had been presented

differently. Id. at 597. By contrast, Juror 0552 unambiguously

indicated her disagreement with the law in her note without any

reference to evidentiary concerns, and then confirmed that

disagreement seven times in her colloquy with the district court

without once mentioning evidentiary issues. In the context of

that record, the district court was under no obligation to keep

her on the jury even though she repeatedly and unequivocally

stated that she strongly disagreed with the applicable law and

could not follow it.

Lastly, we note an issue appellant raised in the district

court. In Brown, as noted, we held that a juror cannot be

dismissed if “the record evidence discloses any possibility”—

or, alternatively, “a” possibility—“that the request to discharge

stems from the juror’s view of the sufficiency of the

government’s evidence.” 823 F.2d at 596–97. And then in

applying that standard, we said that the “record evidence in

th[e] case indicate[d] a substantial possibility” that the juror

“believed that the evidence offered at trial was inadequate to

support a conviction.” Id. at 596. The district court in this case,

echoing that language, found that the record here indicated no

such “substantial possibility.” Trial Tr. 38, Sept. 15, 2004,

8 J.A. 2553. But the language in Brown might raise the

question, does our standard call for denying a juror’s dismissal

when there is “any” or “a” possibility of an evidence-based

14

concern or instead only when there is a “substantial” such

possibility, insofar as there is a meaningful difference among

those formulations?

Appellant raised that issue in the district court in his

motion for a new trial. Wilkerson I, 656 F. Supp. 2d at 6–8.

The district court understood Brown to call for examining

whether there is a “tangible possibility” as opposed to “just a

speculative hope.” Id. at 7 (quoting Abbell, 271 F.3d at 1302

n.14); accord Kemp, 500 F.3d at 304; Symington, 195 F.3d at

1087 n.5. The court found no such possibility indicated by the

record in this case. Wilkerson I, 656 F. Supp. 2d at 8. The

court further said that it “would be helpful for the Court of

Appeals to clarify the applicable standard in this Circuit.” Id.

We do so now, and we agree with the district court that the

pertinent question is whether there is a “tangible” or

“appreciable” possibility, not merely whether there is

“literal[ly] ‘any possibility,’” even just a theoretical one. Id.

That understanding follows naturally from our repeated

recognition in Brown that the possibility of a juror’s evidence-

based concerns must be one that “the record evidence

discloses.” 823 F.3d at 596–97. Here, the district court made

the requisite determination: that “the record before [it]

indicated no appreciable possibility that Juror 0552 harbored

concerns about the evidence.” Wilkerson I, 656 F. Supp. 2d at

5 n.5. We see no basis to reject the court’s assessment.

II.

We next address appellant’s claim that the district court

erred in not dismissing the RICO conspiracy count against him

as time-barred. We hold that the RICO conspiracy count was

not time-barred.

15

A.

The statute of limitations applicable to RICO conspiracy

is five years. Smith v. United States, 568 U.S. 106, 111 n.4

(2013). Here, because the grand jury indicted appellant on

November 17, 2000, the cutoff for statute of limitations

purposes was November 17, 1995.

The original November 2000 indictment alleged sixty-

three racketeering acts in support of the RICO conspiracy

count, including many after 1995. The indictment alleged

appellant’s specific involvement, however, in only seven

predicate acts, one of which—narcotics conspiracy—the

indictment alleged he committed after 1995.

In November 2002, the government filed a retyped

indictment, which was largely the same as the original

indictment but with some predicate racketeering acts that had

been dismissed removed. In June 2003, appellant moved to

dismiss the RICO conspiracy count from that indictment as

time-barred. The district court denied appellant’s motion.

While that motion was pending, in July 2003, the district

court severed appellant’s trial from that of his codefendants.

Accordingly, prior to trial, in July 2004, the government filed

a second retyped indictment, deleting predicate racketeering

acts that did not specifically reference appellant. The second

retyped indictment’s RICO conspiracy count thus alleged

seven predicate acts of racketeering, only one of which—

narcotics conspiracy—appellant allegedly committed after

1995. The verdict form submitted to the jury also referenced

only those seven predicate acts.

16

B.

Appellant contends that narcotics conspiracy does not

constitute a predicate act of racketeering, and that even if it

does, RICO conspiracy requires two predicate acts of

racketeering within the statute of limitations period. We

disagree on both scores.

In general, we review the district court’s legal conclusion

concerning the scope of the conspiracy de novo. United States

v. Hitt, 249 F.3d 1010, 1016 (D.C. Cir. 2001). But when a

defendant fails to object to an alleged error, the defendant bears

the burden of demonstrating “plain error” on appeal. United

States v. Moore, 651 F.3d 30, 50 (D.C. Cir. 2011). Although

the government contends that the plain-error standard applies

here, we need not decide that issue because we conclude that

the district court did not err in the first place. We hold that

narcotics conspiracy constitutes a predicate act of racketeering

and that a RICO conspiracy count is timely if the government

charges the defendant within five years of the conspiracy’s

termination or the defendant’s withdrawal.

A person commits the offense of RICO conspiracy by

conspiring to “conduct or participate . . . in the conduct of [an

interstate] enterprise’s affairs through a pattern of racketeering

activity.” 18 U.S.C. § 1962(c)–(d). Section 1961 lists offenses

that constitute racketeering activity, including “any offense

involving . . . the felonious manufacture, importation,

receiving, concealment, buying, selling, or otherwise dealing

in a controlled substance . . . punishable under any law of the

United States.” Id. § 1961(1)(D). Here, both the first and

second retyped indictments charged appellant with conspiracy

to “manufacture, distribute, or dispense, or possess with intent

to manufacture, distribute, or dispense, a controlled substance.”

See 21 U.S.C. §§ 841(a)(1), 846.

17

By its plain terms, section 1961(1)(D)’s language—“any

offense involving . . . dealing in a controlled substance”—

encompasses a Section 846 offense—conspiracy to “distribute,

or dispense . . . a controlled substance.” The structure of

section 1961 bolsters that conclusion: section 1961’s

“subsections (B) and (C) . . . conspicuously lack the broad ‘any

offense involving’ language of subsection (D),” instead

limiting their predicate acts to those “indictable under

specifically enumerated sections of the criminal code.” United

States v. Weisman, 624 F.2d 1118, 1124 (2d Cir. 1980).

Several circuits have thus held that section 1961(1)(D)

encompasses related conspiracy offenses. See United States v.

Echeverri, 854 F.2d 638, 648–49 (3d Cir. 1988); United States

v. Phillips, 664 F.2d 971, 1015 (5th Cir. 1981); Weisman, 624

F.2d at 1124. We agree and now hold that a narcotics

conspiracy offense constitutes racketeering activity under

section 1961(1)(D).

Appellant argues in the alternative that, even if narcotics

conspiracy constitutes a predicate act of racketeering, the

RICO conspiracy count was time-barred because it alleged his

specific involvement in only one rather than two predicate acts

within the limitations period. We disagree.

The statute of limitations applicable to RICO conspiracy

bars prosecution unless an indictment is returned “within five

years next after such offense shall have been committed.” 18

U.S.C. § 3282. Thus, the statute of limitations begins to run

when a defendant last commits the “offense” of RICO

conspiracy. A defendant who conspires to participate in an

enterprise’s affairs “through a pattern of racketeering activity,”

18 U.S.C. § 1962(c)—i.e., through commission of at least two

predicate acts of racketeering, id. § 1961(5)—commits the

offense of RICO conspiracy, id. § 1962(d). As the Supreme

18

Court has explained, however, “the offense in . . . conspiracy

prosecutions [is] not the initial act of agreement, but the

banding-together against the law effected by that act.” Smith,

568 U.S. at 113. That offense “continues until termination of

the conspiracy or, as to a particular defendant, until that

defendant’s withdrawal.” Id. Put simply, “a defendant who

has joined a conspiracy continues to violate the law through

every moment of [the conspiracy’s] existence.” Id. at 111

(citation omitted).

Absent withdrawal, then, a defendant continues to commit

the offense of RICO conspiracy until the date of the

conspiracy’s termination. It follows that a RICO conspiracy

count is timely as long as the government charges the defendant

within five years of that date. See United States v. Saadey, 393

F.3d 669, 678 (6th Cir. 2005); United States v. Gonzalez, 921

F.2d 1530, 1547–48 (11th Cir. 1991); United States v. Torres

Lopez, 851 F.2d 520, 525 (1st Cir. 1988); United States v.

Persico, 832 F.2d 705, 713–14 (2d Cir. 1987).

Here, as noted, both the first and second retyped

indictments alleged appellant’s participation in a narcotics

conspiracy as a predicate racketeering act within the limitations

period. Thus, both indictments alleged appellant’s commission

of the offense of RICO conspiracy within the limitations

period.

III.

Appellant raises five additional challenges. He contends

(i) that certain statements made by witnesses and the

prosecution deprived him of a fair trial; (ii) that the district

court improperly gave a Pinkerton instruction; (iii) that the

evidence for two of the CCE murder counts was insufficient;

(iv) that the prosecution withheld Brady evidence and

19

advanced inconsistent theories of prosecution; and (v) that the

testimony of a witness named Donney Alston was secured in

violation of Alston’s Fifth Amendment rights. None of those

challenges has merit.

Appellant first contends that certain statements made by

witnesses and referenced in the prosecution’s closing argument

deprived him of a fair trial. Appellant particularly emphasizes

one statement that suggested that his decision to go to trial

proved his continuing participation in the conspiracy.

Appellant objected to that testimony and requested the district

court to strike it, which the court did. Appellant did not object

to the prosecution’s reference to that testimony in closing

argument. Because appellant failed to preserve any claim for

relief beyond striking the testimony, see United States v. Tate,

630 F.3d 194, 197 (D.C. Cir. 2011); United States v. Taylor,

514 F.3d 1092, 1095–96 (10th Cir. 2008), we review his claim

for plain error, Moore, 651 F.3d at 50.

He cannot meet that standard. It is neither “clear” nor

“obvious” that the district court should have sua sponte granted

curative action beyond striking the challenged testimony.

United States v. Olano, 507 U.S. 725, 734 (1993). Nor did the

court’s failure to sua sponte instruct the jury again or take other

curative action following the prosecution’s single reference

thereto affect appellant’s substantial rights, given the court’s

previous instruction and the weight of the evidence of

appellant’s continuing participation in the conspiracy and the

comparative dearth of evidence of his purported withdrawal.

See McGill, 815 F.3d at 890; Moore, 651 F.3d at 54.

Appellant next contends that, because of that testimony,

the district court should have dismissed the narcotics

conspiracy count, and that the court further erred in giving an

instruction under Pinkerton v. United States, 320 U.S. 640

20

(1946), as to that conspiracy count and the RICO conspiracy

count. But as discussed, the district court did not err in sending

those conspiracy counts to the jury. And “once the trial court

determined to send the conspiracy charge[s] to the jury, it could

not have been error to also give a Pinkerton instruction.”

United States v. Henning, 286 F.3d 914, 920 (6th Cir. 2002).

Appellant challenges the sufficiency of the evidence for

the CCE murders of Christopher Burton and Scott Downing.

In particular, appellant challenges the sufficiency of the

connection between those murders and the continuing criminal

enterprise. Assuming such a substantive connection is

required, see, e.g., United States v. Aguilar, 585 F.3d 652, 658

(2d Cir. 2009), a “rational trier of fact could have found” it

here, United States v. Wahl, 290 F.3d 370, 375 (D.C. Cir.

2002). A rational trier of fact could have found that members

of the Gray-Moore conspiracy murdered Christopher Burton in

retaliation for an attack on one of its own (appellant).

Similarly, a rational trier of fact could have found that members

of the conspiracy murdered Scott Downing as part of a botched

plan to punish his partner for pulling out of a drug deal. Such

murders, committed with the conspiracy’s resources to stifle

threats to its members or its deals, bear a substantive

connection to the continuing criminal enterprise. See United

States v. Aquart, 912 F.3d 1, 58 (2d Cir. 2018); Aguilar, 585

F.3d at 658; United States v. Jones, 101 F.3d 1263, 1267 (8th

Cir. 1996).

Appellant next contends that the government withheld

evidence in violation of Brady v. Maryland, 373 U.S. 83

(1963), and relied on inconsistent theories in its prosecutions

in violation of his due-process rights. Both contentions rely on

the same post-trial discovery: the factual proffer in Rodman

Lee’s plea agreement, which described Lee as the leader of a

conspiracy counting Gray among its members. United States

21

v. Wilkerson, 656 F. Supp. 2d 22, 31 (D.D.C. 2009)

(“Wilkerson III”). Appellant contends that that evidence was

material to his claim that the Gray-Moore conspiracy had

disbanded prior to 1995 and is inconsistent with the

prosecution’s theory that Lee joined the Gray-Moore

conspiracy. Both contentions fail for the same reason:

“[c]riminals may of course participate in more than one

conspiracy.” Moore, 651 F.3d at 65. Evidence that Gray

participated in the Lee conspiracy is not inconsistent with the

persistence of the Gray-Moore conspiracy. Such evidence is

immaterial, as we held for the same factual proffer for several

of appellant’s original co-defendants, id., and the prosecution’s

theories were not inconsistent, as the district court held,

Wilkerson III, 656 F. Supp. 2d at 32–34.

Finally, Appellant contends that his indictment unlawfully

relied on testimony from Donney Alston obtained in violation

of Alston’s Fifth Amendment privilege. But generally “a

defendant does not have standing to complain of an erroneous

ruling on the scope of the privilege of a witness.” Ellis v.

United States, 416 F.2d 791, 799 (D.C. Cir. 1969). Nor does

any alleged violation of Alston’s Fifth-Amendment rights fit

the exception for cases in which a constitutional violation

would otherwise evade review. See id. at 799–800; accord

Barrows v. Jackson, 346 U.S. 249, 257 (1953).

* * * * *

For the foregoing reasons, we affirm the judgment of the

district court.

So ordered.