United States v. Gooch

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 12, 2011 Decided January 6, 2012

No. 07-3106

UNITED STATES OF AMERICA,

APPELLEE

v.

LARRY A. GOOCH, JR.,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 04cr00128-23)

Stephen C. Leckar, appointed by the court, argued the cause

and filed the briefs for appellant.

Elizabeth Gabriel, Assistant U.S. Attorney, argued the

cause for appellee. With her on the brief were Ronald C.

Machen, U.S. Attorney, and Roy W. McLeese III, Mary B.

McCord, and John P. Dominguez, Assistant U.S. Attorneys.

Before: GINSBURG,* Circuit Judge, and EDWARDS and

WILLIAMS, Senior Circuit Judges.

*

As of the date the opinion was published, Judge Ginsburg

had taken senior status.

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Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

EDWARDS, Senior Circuit Judge: Appellant, Larry Gooch,

was tried for various crimes arising from his involvement in the

“M Street Crew,” a gang in Washington, D.C. By jury verdict

returned on June 1, 2007, Appellant “was found guilty of a

narcotics conspiracy, participation in a Racketeer Influenced

Corrupt Organization (‘RICO’), drug dealing, four felony

murders, assault with intent to kill while armed, assault on a

police officer, three violent crimes in aid of racketeering activity

(‘VICAR’), and various gun charges.” United States v. Gooch,

514 F. Supp. 2d 63, 64 (D.D.C. 2007).

On appeal, Appellant advances several claims as grounds

for reversal. First, he contends that the District Court clearly

and plainly erred in allowing the Government to use peremptory

challenges to remove qualified blacks from the venire, in

violation of Batson v. Kentucky, 476 U.S. 79 (1986). Second, he

argues that the District Court erred, under Rule 8 of the Federal

Rules of Criminal Procedure, in rejecting his challenge to the

joinder of local and federal charges stemming from the murders

in August 2000 of William Cunningham and Christopher Lane.

Third, he asserts that the District Court erred, under Rule 14 of

the Federal Rules of Criminal Procedure, in denying his motion

for severance of counts relating to the Cunningham/Lane

incident, as well as his motion to vacate judgment as to the

Cunningham/Lane incident. Finally, he maintains that the

District Court erred in denying his motion for judgment of

acquittal on two counts of murder pursuant to the VICAR

statute, 18 U.S.C. § 1959 (2006), arising from the murders of

Calvin Cooper and Yolanda Miller. Because we find no

reversible error, we reject Appellant’s claims and affirm the

judgment of the District Court.

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I. BACKGROUND

For nearly two years, the Federal Bureau of Investigation

and the Metropolitan Police Department conducted a series of

undercover and surveillance operations in the Northeast area of

Washington, D.C. These law enforcement operations focused

on a gang known by its location as the M Street Crew. In March

2004, law enforcement officials executed a massive “take down”

of the organization. Gooch, along with more than thirty other

persons, was arrested. In October 2005, Gooch and eighteen

others were charged in an 159-count indictment with various

narcotics conspiracy, racketeering conspiracy, murder, narcotics

trafficking, and weapons crimes. The charged parties were

divided into three groups for trial. Gooch was in a group that

included Tommie Dorsey, Jonte Robinson, and Kenneth Dodd.

A superseding indictment was filed on October 19, 2005.

Charges arising from the Cunningham/Lane murders were

joined in the indictment. Offenses related to the murders were

charged as substantive offenses under the D.C. Code.

Superseding Indictment, App. to Appellant’s Br., Vol. IB (“App.

IB”) at 57–63. They were also charged as overt acts in

furtherance of the narcotics and RICO conspiracies. Id. at

14–15, 40.

Jury selection began in January 2007. The record leaves the

matter unclear on this point, but it seems that the jury pool

included either sixty-four or seventy-four people, half of whom

were black. See Tr. of Batson Hearing, Feb. 5, 2007 (“Tr.

2/5/07”), App. to Appellant’s Br. Vol. IIB (“App. IIB”) at

1022–23. During voir dire, the Government appears to have

struck sixteen blacks, five whites, and one Latino from the jury

pool. Appellee’s Br. at 18–19. A jury of eighteen, including six

alternates, was chosen. The jury consisted of eight whites, eight

blacks, one Asian, and one Latino. Id. at 19. On February 5,

after the jury had been selected, Gooch raised a Batson

challenge, claiming that the Government disproportionately used

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its peremptory strikes to remove black persons from the jury

pool. The District Court asked the Government to articulate

reasons for its strikes of black females from the pool of persons

available for jury duty. The Government responded by offering

explanations for each of its peremptory challenges.

Gooch challenged the Government’s explanations with

respect to Jurors 408, 854, and 1940. The District Court denied

his challenges, finding that the Government had “fully explained

in a race neutral way each of its strikes.” Tr. 2/5/07 at 1029.

Counsel for Gooch then requested leave to raise “similarly

situated” objections, indicating that he would like time to

perform a comparative analysis of stricken black jurors with

those who remained in the jury pool and that he would do so that

night. The trial judge granted Appellant’s request but instructed

counsel to be prompt if he intended to raise any similarly

situated objections. Gooch’s counsel never raised the issue

again, so it was not among the Batson claims raised by

Appellant with the District Court.

On January 17, 2007, after the jury had been selected but

before trial, Dodd, Robinson, and Dorsey each entered plea

agreements and were no longer co-defendants. Docket, App. to

Appellant’s Br., Vol. IA at 149. Gooch proceeded to trial as the

sole defendant.

Trial began on February 7, 2007. The evidence adduced at

trial documented Gooch’s role in the gang and implicated him

in two double homicides. Gang members coordinated their

drug-dealing efforts, cooperated with one another to avoid arrest

and imprisonment, and maintained a reputation for violence.

The evidence at trial further established that Gooch served as the

“muscle” for the M Street Crew, enforcing the gang’s rules,

engaging in violence, and punishing disloyalty to the gang.

During trial, a great deal of testimony centered on the

August 1, 2000 robbery and murders of Cunningham and Lane.

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Herbert Jones (“Jones”), the uncle of Bonita Jones (who was the

mother of Gooch’s child), asked Gooch to rob Cunningham and

Elijah Walker. Jones had heard that Cunningham and Walker

planned to rob him, and he wanted to take preemptive action

against his adversaries. Gooch, along with fellow M Street

Crew members Dorsey and Robinson, picked up Jones in

Gooch’s car. After they arrived at the place where Cunningham

lived, Gooch, Jones, and Dorsey went to the residence while

Robinson waited at the car. When Cunningham came to the

door, Gooch pulled out a gun and told Cunningham to get on the

floor. Cunningham refused and tried to grab the gun. But

Gooch turned Cunningham around and shot him in the head.

Dorsey then shot Lane, who was also in the residence.

After the murders, Robinson entered the residence and stole

money from the bedroom, where Jones instructed him that he

could find it. Gooch, in turn, took crack cocaine from

Cunningham’s dining room table. The next day, Gooch

attempted to give Jones some of the money from the heist, but

Jones refused. Gooch later discussed the incident with Michael

Abney and Carleton Wills, who were either members or

associates of the M Street Crew.

The Government charged the August 1, 2000

Cunningham/Lane incidents (burglary, robbery, and murder) as

substantive offenses under the D.C. Code, as well as overt acts

in furtherance of both the narcotics and RICO conspiracies. In

a pre-trial motion, Appellant claimed misjoinder under Rule 8 of

the Federal Rules of Criminal Procedure and sought severance of

these charges on the grounds that the Cunningham/Lane

incidents had no connection to the larger narcotics and RICO

conspiracies. The District Court denied Gooch’s motion.

In the course of the trial, the Government also presented

evidence on the February 21, 2003 murders of Cooper and

Miller. Apparently, the “word on the street” was that Cooper

and Miller were “snitching” and “stealing stashes.” Trial Tr.,

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March 27 p.m., 2007 (“3/27/07 p.m.”), App. for Appellee at 58.

Miller even admitted to stealing stashes. Trial Tr., Mar. 22 p.m.,

2007 at 66–67, 69. On the night of the murders, Wills heard

gunshots and witnessed both Gooch and Cooper running out of

an alley onto 17th Street, N.E. Cooper fell to the ground, but

Gooch kept running and disappeared between two buildings.

Officer Keith McAbee also saw two men coming out of the alley.

Officer Duane Davis saw Cooper near the alley and Gooch

running from the scene. Davis testified that he recognized

Gooch, because he had spoken to Gooch in the same alley earlier

that day. Later that night, Gooch told Wills that he had shot

Cooper. Two days after that, Gooch again spoke to Wills,

expressing concern that Cooper had uttered Gooch’s name before

dying and that the police had found the murder weapon. Gooch

also told Abney that he had murdered Cooper and Miller; at trial,

Abney offered details from that conversation which corroborated

Wills’s and Davis’s testimony. The gun was found near the

crime scene, and law enforcement officials retrieved a fingerprint

from the gun that implicated Gooch.

On June 1, 2007, the jury convicted Gooch on a variety of

charges, including narcotics conspiracy, RICO conspiracy,

burglary, felony murder, first- and second-degree murder,

assault, various narcotics and weapons offenses, and the VICAR

counts arising from the Cooper/Miller murders. On August 10,

2007, after the jury returned its verdict, Appellant filed a Motion

to Vacate the Judgment of Guilt, which was opposed by the

Government. Gooch, 514 F. Supp. 2d at 64. On September 11,

2007, the District Court issued an order denying Appellant’s

motion. Id. Appellant’s motion argued that “‘no evidence

connected the Cunningham–Lane crimes and the other alleged

crimes’ other than the commonality of participants,” id. at 65

(citation omitted), and, therefore, the local and federal claims

were misjoined and should have been severed pursuant to Rule

14 of the Federal Rules of Criminal Procedure. Id. at 65–66.

The District Court rejected these contentions, id., and fully

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explained its denial of Appellant’s Motion to Vacate the

Judgment of Guilt, id. at 64–70.

In his appeal before this court, Gooch raises four grounds for

reversal:

1) The prosecutors engaged in structural error by using their

peremptory challenges to remove well-qualified Blacks

from the venire. The Government used the vast majority of

its strikes – 16 of 22 – to remove minorities under pretextual

reasons. When its proffered reasons for striking many of

these African-Americans (not all, to be sure) are examined,

its explanations collapse. These discrepancies proved true

both for those prospective jurors whom the defense timely

challenged, as well as those whom it failed to challenge,

which latter group is analyzed under a plain error standard

of review.

2) The local and federal charges stemming from the

Cunningham-Lane robbery and murders of August 2000

were misjoined under Rule [8], F. R. Crim. P., and D.C.

Code, § 11-502(3). This event was not related to M Street:

it occurred across town and the Crew didn’t engage in

crimes-for-hire. The fact that two of Gooch’s friends helped

did not transform this isolated episode into an act in

furtherance of the charged conspiracies. Inclusion of these

charges, which were the focus of the last seven days of the

Government’s case, exposed the jury to extraneous evidence

of violence that bore no relationship to the core federal

offenses. That exerted a powerful subliminal effect on the

jury’s ability to compartmentalize the evidence.

3) The district judge’s failure to sever the Cunningham-Lane

charges [under Rule 14, F. R. Crim. P.] was an abuse of

discretion. These charges were not part of a common

scheme or plan. Their retention prejudiced Gooch’s defense

for the same reasons as the misjoinder claim.

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4) The trial court erred in failing to grant Gooch’s motion

made at the conclusion of the Government’s case in chief

for acquittal of the VICAR charges for the murders of Ms.

Miller and Mr. Cooper. There was no evidence that he shot

them to gain entrance to the Crew or maintain a reputation

or to retaliate against the victims.

Appellant’s Br. at 8–9. We deal with each of these claims in turn

in the following Analysis.

II. ANALYSIS

A. Standard of Review

Batson challenges. In the District Court, Gooch asserted

Batson challenges to the Government’s strikes of several jurors.

The Government then offered an explanation for each of its

strikes. Gooch unsuccessfully challenged the Government’s

explanations for the peremptory strikes of Jurors 408, 854, and

1940. On appeal, he presses his challenges to the Government’s

peremptory strikes of Jurors 408 and 854, but no longer

challenges the strike of Juror 1940. We review the District

Court’s denial of Gooch’s preserved Batson challenges of the

Government’s peremptory strikes of Jurors 408 and 854 under

the clearly erroneous standard. See Snyder v. Louisiana, 552

U.S. 472, 477 (2008) (“[A] trial court’s ruling on the issue of

discriminatory intent must be sustained unless it is clearly

erroneous.” (citations omitted)).

For the first time on appeal, Gooch asserts that, with respect

to the views of Jurors 408, 854, 449, 1891, 3126, and 3400, the

prosecutor failed to strike similarly situated white venire

members. Appellant also challenges for the first time on appeal

the Government’s explanations for striking Jurors 449, 1891,

2556, 2713, 3126, 3172, and 3400. Because he did not raise and

preserve these objections before the District Court, we review

only for plain error. See United States v. Moore, 651 F.3d 30, 43

(D.C. Cir. 2011) (per curiam) (holding that where “the defense

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did not object to the prosecution’s strike of . . . prospective

jurors[, t]he district court’s rulings on the[] strikes

are . . . reviewed only for plain error” (citing United States v.

Charlton, 600 F.3d 43, 50 (1st Cir. 2010)).

Joinder. We review the joinder of the counts arising from

the Cunningham/Lane murders de novo. See United States v.

Halliman, 923 F.2d 873, 882 (D.C. Cir. 1991). Joinder under

Rule 8 “governs only the initial joinder of counts and defendants:

the only issue under Rule 8 is whether joinder was proper at the

beginning of trial. The propriety of joinder is determined as a

legal matter by evaluating only the indictment [and] any other

pretrial evidence offered by the Government.” United States v.

Carson, 455 F.3d 336, 372 (D.C. Cir. 2006) (per curiam)

(alteration in original) (citations omitted) (internal quotation

marks omitted). “The government need only allege the facts

necessary to sustain joinder, not prove them.” Id. at 372 n.32

(citations omitted) (internal quotation marks omitted).

Rule 8 includes two parts, and it states:

(a) Joinder of Offenses. The indictment or information may

charge a defendant in separate counts with 2 or more

offenses if the offenses charged – whether felonies or

misdemeanors or both – are of the same or similar character,

or are based on the same act or transaction, or are connected

with or constitute parts of a common scheme or plan.

(b) Joinder of Defendants. The indictment or information

may charge 2 or more defendants if they 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. The defendants may be charged in one or more

counts together or separately. All defendants need not be

charged in each count.

FED. R. CRIM. P. 8. “The major distinction between subdivisions

(a) and (b) lies in their treatment of offenses ‘of the same or

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similar character.’ As long as only one defendant is concerned,

Rule 8(a) permits joinder of such offenses, even if they are

entirely unrelated to each other. On the other hand, in the

multiple defendant context, Rule 8(b) forbids joinder, even of

identical crimes, unless those crimes are part of ‘the same series

of acts or transactions.’” United States v. Jackson, 562 F.2d 789,

796 (D.C. Cir. 1977); see also United States v. Perry, 731 F.2d

985, 990 (D.C. Cir. 1984).

The parties have mistakenly suggested that Rule 8(b)

governs here, summarily citing our case law holding that Rule

8(b), not Rule 8(a), applies where both multiple offenses and

multiple defendants are involved. See Appellant’s Br. at 65

(citing United States v. Nicely, 922 F.2d 850, 853–55 (D.C. Cir.

1991)); Appellee’s Br. at 57 (citing United States v. Brown, 16

F.3d 423, 425 (D.C. Cir. 1994)). These cases are inapposite,

however, because they involve situations in which co-defendants

were tried together. A defendant’s Rule 8(b) claim is effectively

mooted when, as here, the co-defendants all plead guilty or are

otherwise dropped from the case before trial. See, e.g., United

States v. Treadwell, 566 F. Supp. 80, 86 (D.D.C. 1983) (“Rule

8(b) applies to cases involving multiple defendants and offenses.

In that defendant Treadwell is the only defendant yet facing

charges in the instant case, Rule 8(b) is inapplicable.”).

Appellant’s claim of misjoinder of defendants was effectively

resolved when his co-defendants pled guilty before the trial. The

only issue before the court, therefore, is whether the joinder of

offenses was proper. That is an issue that is analyzed under Rule

8(a).

“Rule 8 has generally been construed liberally in favor of

joinder.” United States v. Richardson, 161 F.3d 728, 733 (D.C.

Cir. 1998). And a misjoinder under Rule 8 is subject to the

harmless error rule. See United States v. Lane, 474 U.S. 438,

449 & n.12 (1986) (discussing Rule 8(b)). “However, joinder

under Rule 8 is not infinitely malleable: it cannot be stretched to

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cover offenses . . . which are discrete and dissimilar and which

do not constitute parts of a common scheme or plan.”

Richardson, 161 F.3d at 733. Moreover, the District Court lacks

jurisdiction altogether over D.C. Code offenses if they are not

properly joined with federal offenses. See id. at 733–34.

Severance. We review the District Court’s denial of

Gooch’s motion to sever under Rule 14 of the Federal Rules of

Criminal Procedure for an abuse of discretion. See Carson, 455

F.3d at 373 (noting that “the grant of relief under Rule 14 lies

within the discretion of the trial judge and refusal to sever

counts . . . properly joined under Rule 8 will be reversed only if

discretion was abused” (alteration in original) (citations

omitted)). Rule 14 provides that “[i]f the joinder of

offenses . . . appears to prejudice a defendant . . . 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 defendant carries the burden of demonstrating

prejudice resulting from a failure to sever, Carson, 455 F.3d at

374, but such a showing does not result in an automatic grant of

the motion, see Lane, 474 U.S. at 450 n.12 (“The first hurdle in

obtaining a severance under Rule 14 is a showing of prejudice,

and if shown, it remains in the district court’s discretion whether

to grant the motion.”). Severance is proper “only if there is a

serious risk that a joint trial would . . . prevent the jury from

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

United States, 506 U.S. 534, 539 (1993) (discussing Rule 8(b)).

Motion for Acquittal. Finally, we review the denial of

Gooch’s motion for acquittal of his VICAR convictions de novo.

See United States v. Kayode, 254 F.3d 204, 212 (D.C. Cir. 2001).

The court must determine whether the evidence, considered in

the light most favorable to the Government, is “sufficient to

permit a rational trier of fact to find all of the essential elements

of the crime beyond a reasonable doubt.” Id. (citations omitted).

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B. Appellant’s Batson Challenges

A Batson challenge is premised on the principle that

“[p]urposeful racial discrimination in selection of the venire

violates a defendant’s right to equal protection because it denies

him the protection that a trial by jury is intended to secure.”

Batson, 476 U.S. at 86. Race-based exclusion also harms the

community at large by undermining confidence in the judicial

system, id. at 87, as well as the jurors themselves by precluding

their participation in the administration of justice, thereby

“foreclos[ing] a significant opportunity to participate in civic

life,” Powers v. Ohio, 499 U.S. 400, 409 (1991).

The pursuit of a Batson challenge typically proceeds in three

steps. First, the defendant must make a prima facie showing that

a peremptory challenge was exercised on the basis of race.

Snyder, 552 U.S. at 476. Second, if that showing is made, the

prosecution must respond with a race-neutral basis for the strike.

Id. at 476–77. Third, the trial court must determine whether the

defendant has shown purposeful discrimination. Id. at 477.

Once the prosecution has offered a race-neutral explanation and

the trial court has ruled, the issue of the prima facie showing

becomes moot. Hernandez v. New York, 500 U.S. 352, 359

(1991) (plurality opinion).

The Supreme Court has made it clear that appellate review

of the trial court’s findings is limited.

On appeal, a trial court’s ruling on the issue of

discriminatory intent must be sustained unless it is clearly

erroneous. The trial court has a pivotal role in evaluating

Batson claims. Step three of the Batson inquiry involves an

evaluation of the prosecutor’s credibility, and the best

evidence [of discriminatory intent] often will be the

demeanor of the attorney who exercises the challenge. In

addition, race-neutral reasons for peremptory challenges

often invoke a juror’s demeanor (e.g., nervousness,

13

inattention), making the trial court’s firsthand observations

of even greater importance. In this situation, the trial court

must evaluate not only whether the prosecutor’s demeanor

belies a discriminatory intent, but also whether the juror’s

demeanor can credibly be said to have exhibited the basis

for the strike attributed to the juror by the prosecutor. We

have recognized that these determinations of credibility and

demeanor lie peculiarly within a trial judge’s province, and

we have stated that in the absence of exceptional

circumstances, we would defer to [the trial court].

Snyder, 552 U.S. at 477 (alterations in original) (citations

omitted) (internal quotation marks omitted).

There are no exceptional circumstances requiring reversal

here. Appellant argues that the prosecution engaged in a pattern

of race-based peremptory challenges, Appellant’s Br. at 10, and

that the District Court’s finding to the contrary was clearly

erroneous. Appellant points out that “the aggregate

discrepancies in [the prosecution’s] strikes of Blacks compared

with Caucasians suggest that something was skewed. The

64-member jury pool was divided equally on racial lines. Yet

the Government used 16 of its 22 strikes (73%[]) against

African-Americans and other minorities and 6 against

Caucasians.” Id. at 15 (footnote omitted). It is true, as Appellant

points out, that “[d]iscriminatory purpose may be inferred from

a disproportionate ‘challenge rate,’ when a party exercises a

disproportionate share of its total peremptory strikes against

members of a cognizable racial group compared to the

percentage of that racial group in the venire.” Id. at 15 n.28

(citations omitted). But a Batson analysis requires consideration

of “all of the circumstances that bear upon the issue of racial

animosity,” Snyder, 552 U.S. at 478 (citation omitted), and the

statistics offered by Appellant do not paint a complete picture.

While the ratio of black jurors stricken by the prosecution to

total jurors stricken by the prosecution (16:22) is conspicuous,

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the ratio of stricken black jurors to total potential black jurors in

the venire (16:32 or 16:37) is not as dramatic. And of the

eighteen sitting and alternate jurors ultimately selected from a

jury pool that divided equally along racial lines, eight were

white, eight were black, one was Asian, and one was Latino.

Appellee’s Br. at 19. When the “jury composition mirror[s] the

make-up of the venire” and “the prosecutor’s strikes [do] not

skew the racial composition of the resulting jury,” “[t]he

circumstances . . . are a far cry from the facts of cases in which

the Supreme Court has found a Batson violation.” Moore, 651

F.3d at 41 (citations omitted).

Appellant relies heavily on the Court’s decisions in

Miller-El v. Dretke, 545 U.S. 231 (2005), and Snyder v.

Louisiana in support of his claim that the Government engaged

in a pattern of race-based peremptory challenges. Miller-El and

Snyder are tellingly different from this case, however. In Miller-

El, for example, the Court relied in part on the “widely known

evidence of the general policy of the Dallas County District

Attorney’s Office to exclude black venire members from juries.”

545 U.S. at 253. And, as the Government notes:

In Miller-El, a capital murder case, the prosecutors used

their peremptory strikes to exclude [more than 90] percent

of the eligible black venire members, misrepresented some

. . . [juror] statements, and failed to strike similarly situated

white venire members. 545 U.S. at 241–252. Furthermore,

the evidence of racial discrimination went “beyond these

comparisons to include broader patterns of practice during

the jury selection,” including “[t]he prosecution’s shuffling

of the venire panel” when a predominant number of black

jurors were seated in the front of the panel. Id. at 253–254.

The prosecution also engaged in disparate questioning of

black jurors about their views on the death penalty and

minimum acceptable sentences in an effort to solicit

responses that would justify a strike. Id. at 255–263.

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Appellee’s Br. at 24–25 (fourth alteration in original) (footnote

omitted).

In Snyder, “[e]ighty-five prospective jurors were questioned

as members of a panel. Thirty-six of these survived challenges

for cause; 5 of the 36 were black . . . ; and all 5 of the prospective

black jurors were eliminated by the prosecution through the use

of peremptory strikes.” 552 U.S. at 475–76. The Court also

rejected as incredible the prosecution’s strike of a black juror

because the prosecution believed the juror might be inclined to

find the defendant guilty of a lesser offense so that he could

avoid the penalty phase of trial and thereby minimize the amount

of school work that he would miss due to jury service. Id. at

482. The Court held that “[t]he implausibility of this explanation

is reinforced by the prosecutor’s acceptance of white jurors who

disclosed conflicting obligations that appear to have been at least

as serious as [the black juror’s].” Id. at 483.

In viewing the record as a whole, we find that Appellant has

failed to support his claim that the Government engaged in a

“pattern” of race-based peremptory challenges. However,

although the circumstances of this case do not indicate that the

prosecution used its peremptory strikes to discriminate on the

basis of race, “those facts alone are not dispositive. The

dismissal of even a single prospective juror on the basis of race

violates equal protection principles.” Moore, 651 F.3d at 42

(citing Snyder, 552 U.S. at 478). We therefore must review the

District Court’s denial of Appellant’s Batson challenges to Jurors

408 and 854. These challenges were properly raised before the

trial court and preserved for appeal, so our review is pursuant to

the clearly erroneous standard.

1. Appellant’s Preserved Challenges

Juror 408: The Government offered two race-neutral

reasons for its strike of Juror 408, a black female:

(1) she “ha[d] some opposition to the death penalty,” and (2)

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based on her work as a youth minister, her experience

counseling drug addicts, and her work conducting mediation

in Superior Court, the government believed she would show

“sympathy towards the idea of rehabilitation and sympathy

towards people that use crack, wanting to be able to sort of

reconcile and forgive.”

Appellee’s Br. at 28 (alteration in original) (citation omitted).

Before the District Court, Appellant contended that the

Government had no legitimate grounds upon which to justify its

peremptory strike of Juror 408. Tr. 2/5/07 at 1028. The District

Court rejected Appellant’s challenge. The trial judge found that

Juror 408 “indicated significant hesitation which [was] really

against the death penalty.” Id. The judge also found that “the

fact that [Juror 408] spends her ministry with troubled youth in

this city where troubled youth are often a synonym for poverty,

drugs and guns and that’s her calling,” suggested that “she might

be more sympathetic to the defendant than the government

would prefer.” Id. The judge thus concluded “that is not a race

base[d] but rather race neutral response to what she does with her

energies and her time and her devotion.” Id. The District

Court’s findings are supported by the record and not clearly

erroneous.

Juror 854: We also hold that the District Court’s

determination rejecting Appellant’s challenge to the

Government’s peremptory strike of Juror 854 was not clearly

erroneous. This juror, a black female, wrote on her questionnaire

that law enforcement agencies “should be more committed to the

cause and not think they are above the law[.] [M]ost cops are

good. [A]ll are not.” Juror Questionnaires, App. to Appellant’s

Br., Vol. IIA at 183. She also wrote that “[r]acial profiling

happens and clouds people[’s] judgment.” Id. at 184. When

asked by the trial court judge to elaborate, Juror 854 said:

I have been pulled over a couple of times, something like

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that. I have brothers in, you’re a black man you’re driving

you’re going to get pulled over, you know. And having to

tell my nephews these are the procedures when you get

pulled over because you never know who is going to do

what. And you never know if you are going to have a good

cop or a cop that’s having a bad day, you know. And they

are armed, you know. So you have to be careful.

Voir Dire Tr., Jan. 24, 2007 (“1/24/07”), App. IIB at 917.

The Government’s reasons for striking Juror 854 and

Appellant’s challenge are concisely summarized in Appellee’s

brief:

The government explained that it struck Juror 854

because she “laughed many times during the course of the

conversations with the court,” and appeared to “try[] to

ingratiate herself with the court.” Furthermore, based on the

juror’s statement that “she had to tell her nephew the

procedures for when he got pulled over by the police,” the

government believed that Juror 854 might “espouse the view

of the driving while black theory.” “[T]hat coupled with the

way that she responded to the court’s questions coupled with

her age” led the government to conclude that Juror 854

“would not be sympathetic to the government’s position.”

Appellant challenged the government’s reasons,

asserting that Juror 854 never mentioned “driving while

black,” and that, even if she did, that was not a race-neutral

reason to strike her. Appellant argued that neither that nor

the juror’s laughter during voir dire was a “particularly good

reason[] to strike anybody.”

Appellee’s Br. at 32 (alterations in original) (citations omitted).

The trial judge accepted the Government’s reasons for

striking Juror 854. The judge explained that she “remembere[d]

very well” the juror’s laughs, which “probably don’t show up on

18

the transcript anywhere, but were at the wrong times.” Tr. 2/5/07

at 1029. The judge also construed the juror’s discussion of being

pulled over “as a statement about whether or not that juror would

be inclined to credit police officers or would automatically not.”

Id.

The District Court’s determination regarding Juror 854 is

not clearly erroneous. The Government could have reasonably

viewed inappropriate laughter as indicating a higher risk that

Juror 854 would not be a serious trier of fact. Deference to the

District Court’s finding on this point is “especially appropriate,”

because the “trial judge has made a finding that an attorney

credibly relied on demeanor in exercising a strike.” Snyder, 552

U.S. at 479. Furthermore, the Government could have perceived

the juror’s statements regarding police as another valid reason to

strike. The Government’s strike cannot be seen to have been

discriminatory, merely because the Juror referenced race in

expressing concerns about blacks’ being pulled over by the

police. We have no good reason to disagree with the District

Court’s finding that the Government may have been reasonably

concerned about the Juror’s apparent distrust of the police.

2. Appellant’s Unpreserved “Similarly Situated”

Challenges

Appellant contends for the first time on appeal that the

views of Jurors 408, 854, 449, 1891, 3126, and 3400 resemble

those expressed by several seated whites, signaling that

something was amiss. These challenges lack merit.

In Snyder, the Court noted that, in cases in which a

defendant’s Batson challenges rest on comparative-analysis

(“similarly situated”) claims,

a retrospective comparison of jurors based on a cold

appellate record may be very misleading when alleged

similarities were not raised at trial. In th[ese] situation[s],

an appellate court must be mindful that an exploration of the

19

alleged similarities at the time of trial might have shown that

the jurors in question were not really comparable.

552 U.S. at 483. In Snyder, however, the Court allowed a

retrospective comparison of jurors, because “the shared

characteristic [of the jurors], i.e., concern about serving on the

jury due to conflicting obligations, was thoroughly explored by

the trial court when the relevant jurors asked to be excused for

cause.” Id. There was only one alleged shared characteristic at

issue in Snyder – jurors’ concerns over having to commit to jury

duty in the face of conflicting obligations. It was easy for the

Court to sort out this one shared characteristic even on a cold

appellate record. The same is not true here.

Appellant argues that the views of a number of black jurors

– on issues such as the death penalty, rehabilitation, and trust of

police officers – resemble the views expressed by several seated

white jurors. The array of issues and comparisons would make

a retrospective comparison of jurors based on a cold appellate

record farcical. The record in this case does not, as in Snyder,

allow for easy comparisons of jurors’ views. For example, the

jurors’ views on the death penalty covered a wide spectrum, and

several jurors wavered on that topic during questioning.

Appellant does not contend that his “similarly situated”

arguments were in any way explored by the District Court. This

is not surprising, because the similarly situated challenges were

abandoned by Appellant in the District Court. In other words,

this is not a case in which counsel inadvertently overlooked a

possible objection. Counsel for Gooch affirmatively requested

leave to raise similarly situated objections, indicating that he

would like time to perform a comparative analysis of stricken

black jurors with those jurors who remained in the jury pool and

that he would do so that night. The trial judge granted counsel’s

request, but asked him to be prompt in submitting any objections.

Gooch’s counsel, however, never raised the matter again, so the

issue was effectively dropped and never pursued before the

20

District Court.

The situation here does not come close to resembling the

situation faced by the Court in Snyder. Rather, this is a case in

which “a retrospective comparison of jurors based on a cold

appellate record” would be “very misleading,” because “an

exploration of the alleged similarities at the time of trial might

have shown that the jurors in question were not really

comparable.” Snyder, 552 U.S. at 483. In these circumstances,

our inclination might be to hold that “a ‘similarly situated’

argument is untimely and cannot be made if it is raised for the

first time on appeal rather than at the trial level.” United States

v. Gibson, 105 F.3d 1229, 1232 (8th Cir. 1997) (citation

omitted). The issue is a bit more complicated than this, however,

so we must amplify.

In United States v. Moore, the court made it clear that the

appellate court should be loath to overturn trial court

determinations regarding Batson challenges in instances in which

“‘[a]ppellate judges cannot on the basis of a cold record easily

second-guess a trial judge’s decision.’” 651 F.3d at 42

(alteration in original) (quoting Rice v. Collins, 546 U.S. 333,

343 (2006) (Breyer, J., concurring)) (citing Snyder, 552 U.S. at

483). Moore indicates that this is especially inappropriate in

situations in which the court is asked to assess the demeanor of

seated jurors. See id. We think that it is also inappropriate in

situations in which the defense seeks for the first time on appeal

to pursue challenges based on retrospective comparisons of

jurors based on alleged “shared characteristics.” When the

challenges are not properly raised with the District Court, the

appellate court loses the benefit of the trial judge’s assessments

of the prosecutor and prospective jurors. See Snyder, 552 U.S.

at 477.

We recognize that in Moore, the defense did not object in

the District Court to the Government’s strike of several

prospective jurors, and this court nevertheless reviewed the

21

challenges on appeal pursuant to the plain error standard. See

651 F.3d at 43–44. In applying the plain error standard, the

Moore court referenced United States v. Charlton, in which the

First Circuit held:

“We . . . apply plain error review to unpreserved Batson

claims. . . .” In applying this standard of review, we have

observed a Supreme Court ruling that, “[u]nless a

discriminatory intent is inherent in the prosecutor’s

explanation, the reason offered will be deemed race

neutral.”

600 F.3d at 50 (alterations in original) (citations omitted). The

court in Charlton did not explicitly explain what it meant by

“inherent”; however, in the context of unpreserved Batson

challenges, we take it to mean “manifest,” “patent,” or

“unmistakable.”

Pursuant to plain error review, an appellant must

demonstrate (1) that there was an error, (2) that the error was

clear or obvious, (3) that it affected the appellant’s substantial

rights, and (4) that it seriously affected the fairness, integrity, or

public reputation of the judicial proceedings. See United States

v. Olano, 507 U.S. 725, 732–37 (1993). In United States v.

Brown, 352 F.3d 654 (2d Cir. 2003), the Second Circuit,

adhering closely to the Supreme Court’s definition of plain error

in United States v. Olano, ruled that, “[i]n the Batson context,”

when strikes are evaluated for plain error,

it is normally the case that the only complicated question is

whether the second prong [of Olano] is satisfied – that is,

whether the error at issue is “plain.” For if we decide that

the district court’s approval of a challenge based on [race]

is error under the first prong, the third and fourth prongs of

the Olano test are also generally met.

Brown, 352 F.3d at 664. The Brown decision holds that error is

plain if it is “so egregious and obvious as to make the trial judge

22

and prosecutor derelict in permitting it, despite the defendant’s

failure to object.” Id. at 664–65 (citations omitted) (internal

quotation marks omitted).

In the context of unpreserved Batson claims, we agree with

the Charlton and Brown conceptions of the plain error standard.

Under Olano, “‘[p]lain’ is synonymous with ‘clear’ or,

equivalently, ‘obvious.’” 507 U.S. at 734 (citations omitted). If

a defendant cannot carry the burden of showing that

discriminatory intent was manifest in the Government’s use of a

peremptory strike, we cannot imagine how the alleged error can

be “plain” as required by Olano. It seems axiomatic, then, that in

a case like this, in which the Government offers race-neutral

reasons to justify peremptory strikes, the District Court credits the

Government’s submissions, the defendant fails to object, and

then, on appeal, the defendant fails to show that the Government’s

actions were manifestly discriminatory, there is no plain error. In

these circumstances, the appellate court has no basis upon which

to second-guess the trial judge’s determinations.

In this case, in raising “similarly situated” arguments for the

first time on appeal, Appellant points to nothing in the record to

indicate that discriminatory intent was manifest in the

Government’s peremptory strikes of the cited jurors. We

therefore find no plain error.

3. Appellant’s Other Unpreserved Batson Challenges

As noted above, Appellant for the first time on appeal also

challenges the Government’s explanations for striking Jurors 449,

1891, 2556, 2713, 3126, 3172, and 3400. Our bottom-line

judgment is simple: Appellant points to nothing in the record to

indicate that discriminatory intent was inherent in the

Government’s strikes of these Jurors. Nor does Appellant point

to any peremptory strike that was so egregious and obvious as to

make the trial judge and prosecutor derelict in permitting it,

despite Appellant’s failure to object. We therefore find no plain

23

error.

Juror 449: The Government struck Juror 449, a black

female, because “[s]he said that she did not believe that the death

penalty was the right choice” and “voiced moral opposition” to

the penalty. Tr. 2/5/07 at 1024. The Government’s explanation

might have been imprecise – the juror did dispute whether she had

a “moral opposition to the death penalty,” Voir Dire Tr., Jan. 22,

2007 (“1/22/07”) at 869 – but it was not wholly incorrect. Juror

449 often expressed opposition to the death penalty, explaining

during voir dire that she was “not really for the death penalty,”

that “[k]illing someone isn’t justification because they did it to

someone else,” id. at 861, that there were no crimes for which she

could vote to impose death, id., and that the number of murders

would not make a difference, id. at 862.

Juror 1891: The Government, referencing the questionnaire

of Juror 1891, a black female, explained that she had written that

“punishment for life would have more of an impact than the death

penalty[,] [a]nd so [the Government] took her at her word that she

really could not give meaningful consideration to the death

penalty” despite the fact that, in response to the trial judge’s

questions, she qualified her apparent rejection of the death

penalty. Tr. 2/5/07 at 1027. While this is technically

incorrect – Juror 1891 explained in her questionnaire that she was

merely “unsure” about whether she could meaningfully consider

the penalty in some instances, Juror Questionnaires at

352–53 – she did indicate in her questionnaire that she was

“somewhat opposed to the death penalty,” id. at 351. She also

consistently indicated, in both her questionnaire and at voir dire,

a preference for life imprisonment. See id. at 352, 353; Voir Dire

Tr., Jan. 25, 2007 at 979.

Juror 2556: Juror 2556, a black male, stated that he

“honestly” thought the death penalty would be “too harsh,” Voir

Dire Tr., Jan. 19, 2007 at 836, that his experience being

handcuffed left him with a “bad impression that . . . [the police]

24

falsely accused me,” id. at 832, and that he would be inclined to

believe a defendant who took the stand and claimed innocence, id.

at 829. These statements support the Government’s three reasons

for striking him: He said that the death penalty was too harsh; he

indicated that he really could not believe the police; and he stated

that he would consider a testifying defendant to be innocent. Tr.

2/5/07 at 1024.

Juror 2713: Both parties struck Juror 2713, and Appellant

agreed to “skip” the explanation for this strike. See id. at

1026–27. By “acquiesc[ing] in a ruling,” Appellant waived his

argument as to this strike. United States v. Rogers, 918 F.2d 207,

212 (D.C. Cir. 1990) (citations omitted).

Juror 3126: Juror 3126, a black female, indicated serious

reservations about the death penalty, stating at voir dire that she

did not “like it” or “believe in it.” Voir Dire Tr., 1/24/07 at 929.

When asked if the penalty could ever be warranted, she replied

that she might consider it if a family member were murdered. Id.

However, she also said that while she did “not support the death

penalty 100%” she “would consider it,” Juror Questionnaires at

664, and could give it meaningful consideration and vote for it,

Voir Dire Tr., 1/24/07 at 933. Accepting the Government’s

reasons to strike – that it was concerned about, first, the fact that

she did not believe in the penalty and did not “support it a

hundred percent,” and, second, the fact that her family member

was not a victim in the case, Tr. 2/5/07 at 1026 – was not plain

error.

Juror 3172: Juror 3172, a black male, worked in mental

health and drug rehabilitation. Juror Questionnaires at 697; Voir

Dire Tr., 1/22/07 at 886–87. His sister was addicted to crack, and

he was in the process of adopting her child. Voir Dire Tr.,

1/22/07 at 877. However, he maintained that he could be

impartial as to drug allegations. Id. at 877, 888. He also

indicated on his questionnaire that his roommate had been shot.

Juror Questionnaires at 696. However, during questioning, he

25

stated that he did not have any family or friends who had been the

victim of a gunshot. Voir Dire Tr., 1/22/07 at 878. He then said

he had “forgot[ten] all about” the incident with his roommate,

before going on to explain that his roommate had died from the

gunshot wound. Id. at 888. The Government gave two race-

neutral reasons for the strike: The juror might be sympathetic to

drug users; and his apparent failure to remember a roommate

being shot to death suggested there was “something not right

about that juror.” Tr. 2/5/07 at 1025. Certainly both

considerations were relevant, race-neutral reasons to strike.

Juror 3400: The Government struck Juror 3400, a black

female, because she had “served on a previous jury and found the

person not guilty,” and because she demonstrated a moral

opposition to the death penalty, as shown by the fact that she

indicated that she could uphold the death penalty only after

repeated questioning by the court. Id. at 1026. Actually, Juror

3400 stated that she had served on a jury in which no verdict was

reached. Juror Questionnaires at 752. This mistake is hardly

suspicious. And the juror did indicate that she was “disappointed

or dissatisfied with our criminal justice system” as a result of this

prior jury experience, in which the prosecution had failed to

produce “enough evidence.” Id.; see also Voir Dire Tr., 1/24/07

at 809–10. At voir dire, the juror initially indicated hesitation

about the death penalty. Voir Dire Tr., 1/24/07 at 813–14. After

further questioning, however, she changed course to state that she

could vote for the penalty. Id. at 814. The Government obviously

was wary of the juror’s inconsistent positions on the death

penalty. This is a moot point, however, because the

Government’s first reason for striking the juror – her

dissatisfaction with the criminal justice system – was enough to

sustain its strike without running afoul of Batson.

In sum, we reject Appellant’s unpreserved Batson challenges.

As noted above, if the Government offers race-neutral reasons for

a peremptory strike, and the defendant cannot carry the burden of

showing that discriminatory intent was inherent in the

26

Government’s action, the alleged error cannot be “plain” under

Olano. Nothing in the record indicates that discriminatory intent

was inherent in the Government’s peremptory strikes of Jurors

449, 1891, 2556, 2713, 3126, 3172, or 3400.

C. Joinder

As we have already explained, joinder is an ex ante, pre-trial

consideration governed by Federal Rule of Criminal Procedure 8.

See Carson, 455 F.3d at 372–73. Rule 8(a) provides that there

may be a “joinder of offenses” if they “are of the same or similar

character, or are based on the same act or transaction, or are

connected with or constitute parts of a common scheme or plan.”

FED. R. CRIM. P. 8(a). The District Court has jurisdiction over

“[a]ny offense under any law applicable exclusively to the District

of Columbia which offense is joined in the same information or

indictment with any Federal offense.” D.C. CODE § 11-502(3)

(2001). “Joined” in this context means “properly joined” under

Rule 8. Carson, 455 F.3d at 373 n.33 (citations omitted) (internal

quotation marks omitted).

Joinder analysis does not take into account the evidence

presented at trial. See Moore, 651 F.3d at 69 (“[T]rial evidence

cannot render joinder [under Rule 8(b)] impermissible and is thus

irrelevant to our inquiry.” (citations omitted)); Carson, 455 F.3d

at 372. Instead, a court applying Rule 8 focuses solely on the

indictment and pre-trial submissions. And the Government need

merely allege, not prove, the facts necessary to sustain joinder.

Carson, 455 F.3d at 372 n.32. Therefore, in this case, the

Government needed only to allege facts showing that the acts or

transactions described in Rule 8(a) “are of the same or similar

character, or are based on the same act or transaction, or are

connected with or constitute parts of a common scheme or plan.”

FED. R. CRIM. P. 8(a).

Our de novo review of the indictment and pre-trial

submissions convinces us that joinder was appropriate. The

indictment charged Gooch with narcotics and RICO conspiracies,

27

Superseding Indictment at 10–42, as well as the

Cunningham/Lane burglary, robbery, and murders, as separate

acts, id. at 57–63, and as overt acts in furtherance of both

conspiracies, id. at 14–15, 40. With respect to the RICO

conspiracy, the indictment also alleged that “[a] principal goal of

the organization was to obtain money and other things of value”

and that “[i]t was a further goal . . . to traffic in controlled

substances, . . . [and] to commit acts of murder, . . . robbery, [and]

burglary, . . . [in order] to enrich the enterprise and its

members . . . and to promote and enhance the reputation and

standing of the enterprise and its members.” Id. at 38.

The Government’s pre-trial representations additionally

explained that the Cunningham/Lane incident arose “in

conjunction with a plan to steal money and drugs” from the

victims and that the robbery and murders were “done by members

of the enterprise, to enrich the enterprise and each defendant’s

position in the enterprise was both benefitted by and enhanced by

his participation in the robbery and the execution style killing.”

Gov’t’s Supplemental Mem., App. for Appellee at 6. Where an

indictment alleges that the defendant and others participated in a

conspiracy “with the shared goal of ‘enriching themselves,’” and

pre-trial submissions allege a common scheme, joinder is proper

under Rule 8(a). Cf. United States v. Spriggs, 102 F.3d 1245,

1255–56 (D.C. Cir. 1996) (per curiam) (holding that “joinder

[under Rule 8(b)] is appropriate if there is a logical relationship

between the acts or transactions so that a joint trial produces a

benefit to the court” (citations omitted) (internal quotation marks

omitted)). In addition, as noted above, Rule 8(a) permits the

joinder of offenses of the same or similar character, “even if they

are entirely unrelated to each other.” Jackson, 562 F.2d at 796.

Taken together, the indictment and the pre-trial

representations alleged that the Cunningham/Lane murders were

in furtherance of the conspiracies and that participation in the

conspiracy enriched the enterprise’s members. These pre-trial

submissions were sufficient to justify the joinder of the local and

28

federal charges at issue in this case.

D. Severance

Although we have found no error in the pre-trial joinder of

the local and federal counts against Appellant, we still must

consider whether the District Court later erred in denying

Appellant’s motion under Rule 14 of the Federal Rules of

Criminal Procedure to sever the counts. Rule 14 states that if

“joinder . . . appears to prejudice a defendant . . . the court may

order separate trials of counts . . . or provide any other relief that

justice requires.” FED. R. CRIM. P. 14(a). The discussion in

Carson explains the interplay between Rule 8 and Rule 14:

After counts are joined, subsequent severance [is] controlled

by Rule 14. Whereas misjoinder under Rule 8 is determined

according to the propriety of joining offenses before trial,

severance may be warranted under Rule 14 at all stages of

trial because the district court has a continuing duty to sever

counts if it finds a risk of prejudice. That Rule 8 and Rule 14

operate differently is made clear by the standards governing

appellate review of a district court’s decision under them.

Judge Friendly explained:

The question[s] of the propriety of joinder under Rule 8

and of refusal to grant relief from prejudicial joinder

under Rule 14 are quite different in nature . . . . The

former is a question of law, subject to full appellate

review . . . . In contrast, the grant of relief under Rule 14

lies within the discretion of the trial judge and refusal to

sever counts . . . properly joined under Rule 8 will be

reversed only if discretion was abused . . . .

455 F.3d at 372–73 (alterations in original) (citations omitted)

(internal quotation marks omitted).

The defendant carries the burden of demonstrating prejudice

resulting from a failure to sever. Id. at 374. Severance is proper,

however, “only if there is a serious risk that a joint trial would . . .

29

prevent the jury from making a reliable judgment about guilt or

innocence.” Zafiro, 506 U.S. at 539.

We have noted that, in assessing motions to sever under Rule

14 when there has been no misjoinder under Rule 8(a),

[t]hree kinds of prejudice warrant relief under Rule 14: 1) the

jury may cumulate evidence of the separate crimes; 2) the

jury may improperly infer a criminal disposition and treat the

inference as evidence of guilt; 3) the defendant may become

“embarrassed or confounded” in presenting different

defenses to the different charges.

Blunt v. United States, 404 F.2d 1283, 1288 (D.C. Cir. 1968)

(citation omitted). On the record before us, Appellant has failed

to demonstrate any such prejudice resulting from the joinder of

the local and federal charges. Therefore, the District Court did

not abuse its discretion under Rule 14.

There are several considerations that influence our judgment.

First, in a case involving joinder under Rule 8(b), the Supreme

Court has cautioned that if “the charge which originally justified

joinder turns out to lack the support of sufficient evidence, a trial

judge should be particularly sensitive to the possibility

of . . . prejudice.” Schaffer v. United States, 362 U.S. 511, 516

(1960). The same concern applies with respect to joinder under

Rule 8(a). In this case, however, the concern is of little moment,

because the evidence against Appellant was compelling on the

charges at issue.

Second, the trial court gave limiting instructions at both the

start and close of trial. At the beginning of trial, the court

explained that the jury was not to infer guilt from the fact of the

indictment, the number of charges alleged, or the type of charges

brought. At the end of trial, the jury was instructed that its

finding as to one offense “should not control [its] verdict as to any

other offense charged, except as [otherwise instructed],” Excerpt

Instructions, App. IB at 290, and that it must not allow the

30

“character of any charge itself to [a]ffect” arrival at a verdict,

Trial Tr., May 3 a.m., 2007 at 16. The court also cautioned the

jury that “[e]ach offense and the evidence pertaining to it should

be considered and decided separately” and that the “indictment is

not evidence.” Id. Such limiting instructions are sufficient to

address prejudice. See, e.g., Zafiro, 506 U.S. at 540–41; Carson,

455 F.3d at 374–75; Spriggs, 102 F.3d at 1256. Furthermore, we

may presume that the jury followed those instructions. Brown, 16

F.3d at 430. It is also noteworthy that the jury acquitted Gooch

of the VICAR counts based on the Cunningham/Lane murders

and of another murder and its related charges. Verdict Findings,

App. IB at 298, 300–01. This outcome affords “some evidence

that the jury did follow the instructions and was able to

discriminate among charges and evidence.” Brown, 16 F.3d at

430.

Third, Appellant asserts that the Government presented the

offenses related to the Cunningham/Lane incident last in trial,

even though they occurred first in real time. This, says Appellant,

was highly prejudicial. Chronological presentation may be

relevant to the issue of prejudice, see Spriggs, 102 F.3d at 1256,

but it is hardly dispositive. Indeed, in this case, the presentation

of the Cunningham/Lane murders last may have helped to avoid

prejudice by keeping these murder charges separate and discrete

from other charges.

Finally, Appellant argues that the Cunningham/Lane

evidence would not have been admissible at a separate trial. Even

assuming, arguendo, that he is correct – and we need not decide

this – there is “no prejudicial effect from joinder when the

evidence of each crime is simple and distinct, even though such

evidence might not have been admissible in separate trials.” Drew

v. United States, 331 F.2d 85, 91 (D.C. Cir. 1964) (citations

omitted); see also Jackson, 562 F.2d at 794 (“[Joinder of offenses

under] Rule 8(b) is not limited to situations in which proof of the

other criminal transaction would be admissible in a separate trial.”

(alteration in original) (citation omitted)). The offenses arising

31

from the Cunningham/Lane incident were relatively “simple and

distinct,” so it does not matter whether the evidence would have

been admissible in a separate trial.

In sum, even where “the counts [are] misjoined, or the

severance motion improperly denied, the district court’s rulings

must be upheld” where an appellant fails to “demonstrate[] any

prejudice resulting from them.” Spriggs, 102 F.3d at 1256

(citations omitted). We may affirm, “even if the circumstances

are such that a grant of severance would have been sustainable,

particularly since potential prejudice to a defendant may be

obviated by jury instructions.” Carson, 455 F.3d at 374 (citations

omitted) (internal quotation marks omitted); Zafiro, 506 U.S. at

539 (“When the risk of prejudice is high, . . . less drastic

measures, such as limiting instructions, often will suffice to cure

any risk of prejudice.” (citation omitted)). The presentation of the

evidence, the content of the jury instructions, and acquittal on

some charges all indicate that prejudice was obviated here, such

that the jury was not prevented from making a reliable judgment

about guilt or innocence. See Carson, 455 F.3d at 374.

E. VICAR Murders

The VICAR statute criminalizes murder related to

racketeering activity committed by a defendant

with one of three motives: (1) as consideration

for . . . anything of pecuniary value from such an enterprise,

(2) as consideration for a promise . . . to pay something of

value from such an enterprise, or (3) for the purpose of

gaining entrance to or maintaining or increasing position in

an enterprise engaged in racketeering activity.

Carson, 455 F.3d at 369 (alternations in original) (quoting 18

U.S.C. § 1959(a)) (internal quotations marks omitted). Whether

Gooch acted with the third motive is at issue here.

The motive of maintaining or increasing one’s position in an

enterprise may be reasonably inferred where the defendant

32

commits the crime “in furtherance of” enterprise membership or

where the defendant “knew it was expected of him by reason of

his membership in the enterprise.” Carson, 455 F.3d at 369

(citations omitted). Such a motive has been found where the

defendant murdered individuals on suspicion that they were

cooperating with police and thereby jeopardizing the enterprise,

see United States v. Dhinsa, 243 F.3d 635, 672 (2d Cir. 2001), or

murdered individuals to “maintain or increase his own reputation

as an enforcer in the enterprise,” where the defendant “frequently

carried out violent crimes against those who threatened the

organization,” Carson, 455 F.3d at 370.

A jury could determine beyond a reasonable doubt that the

murders charged to Gooch were committed in furtherance of his

gang membership. The jury heard that there were rumors that

Cooper and Miller stole drug stashes; and the jury heard that

Miller had admitted doing so herself. There was also testimony

that Miller and Cooper were snitches. Stealing and snitching

clearly posed a threat to the gang. And the jury heard testimony

that a response to such threats would be violent. One witness

explained that someone who stole drug stashes ran the risk of

being shot. Another witness described the gang’s reputation

simply as “f**k with one you f**k with all, it’s over.” Trial Tr.,

Mar. 29 a.m., 2007 at 35. Indeed, Abney testified that after the

Cooper/Miller murders, Gooch stated, “You know I had to kill

[them].” See Trial Tr., 3/27/07 p.m. at 59 (emphasis added). That

Gooch would describe the murders as somehow required of him

is supported by the social structure of the gang as detailed by

evidence at trial – a structure built on the premise that threats to

the gang were met with violence. And that violence was often

executed by Gooch himself, who was the “muscle” of the M

Street Crew. The evidence in this case thus far exceeds that in

United States v. Thai, 29 F.3d 785 (2d Cir. 1994), the case upon

which Gooch most heavily relies. See id. at 818–19 (reversing

conviction under VICAR statute because jury’s finding of intent

would have been based upon “pure speculation” and

33

“guesswork”).

Gooch testified that he paid Cooper with crack for fixing his

cars. He also testified that he knew about the rumors that Miller

stole stashes but did not know whether the rumors were true. He

further stated that he knew Miller dealt in the neighborhood, but

he had not heard rumors that she had cooperated with police.

Considered in the light most favorable to the Government, the

jury could have inferred that Gooch knew about the rumors

regarding both Cooper and Miller and found those rumors to be

sufficient to justify murder in furtherance of the gang’s code. The

testimony indicated that the rumors were widely discussed and

that gang members formed a tight-knit group. Given this

evidence, the jury could have discredited Gooch’s testimony that

he had not heard rumors that both Cooper and Miller were

stealing stashes and collaborating with police.

In short, the jury had ample evidence to return a verdict

against Gooch. Given that Gooch was well known as a gang

enforcer, the jury was free to decide that he was expected to

retaliate against those who violated the gang’s code. Because the

evidence is sufficient to sustain a finding that Gooch committed

the murders in order to maintain or improve his reputation within

the gang, we reject Appellant’s claim that the District Court erred

in denying his motion to acquit.

III. CONCLUSION

For the foregoing reasons, the judgment and rulings of the

District Court are affirmed.

So ordered.