United States v. Christopher Brian Cosimano

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 19-14841

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHRISTOPHER BRIAN COSIMANO,

a.k.a. Durty,

MICHAEL DOMINICK MENCHER,

a.k.a. Pumpkin,

Defendants-Appellants.

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2 Opinion of the Court 19-14841

____________________

Appeals from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:18-cr-00234-MSS-SPF-1

____________________

Before WILSON, BRANCH, and TJOFLAT, Circuit Judges.

PER CURIAM:

This is an appeal from two defendants following a brutal

murder. Evidence at trial showed that Defendants-Appellants

Christopher Cosimano and Michael Mencher conspired to kill a

member of a rival motorcycle club and did so. After Cosimano,

Mencher, and several of their associates followed the victim, Paul

Anderson, for several miles on the highway, Cosimano brazenly

shot him to death at a traffic light in broad daylight. Mencher was

present at the murder scene and later told a confidential informant

that he would have shot the victim if Cosimano had been unable

to. The evidence also supported the jury’s finding that the murder

served to increase the Defendants’ status in their motorcycle club,

which was an enterprise engaged in interstate racketeering. Fur-

ther, the evidence supported a separate conviction for the Defend-

ants’ use of a firearm during a violent crime. While the Defendants

argue that murder is not categorically a crime of violence, our prec-

edent holds the contrary. The Defendants raise several additional

arguments on appeal, but none justify reversal. We thus affirm

their convictions.

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I. BACKGROUND

The Defendants were associated with the 69’ers Motorcycle

Club, a national organization with active chapters in several states.

Cosimano was president of the Hillsborough County Chapter

(nicknamed the Killsborough Chapter), Sean Leonard was vice

president, Erick Robinson was sergeant at arms, and Allan Guinto

was treasurer. Mencher and Cody James Wesling were “pro-

spects,” or prospective members.

In May 2018, a grand jury charged Cosimano, Mencher,

Robinson, Guinto, and Wesling in a nine-count indictment. A su-

perseding indictment followed two months later. Relevant to this

appeal, Count 1 charged conspiracy to commit murder in aid of

racketeering activity, 18 U.S.C. § 1959(a)(5), Count 2 charged mur-

der in aid of racketeering activity (VICAR murder), 18 U.S.C. §§

1959(a)(1) and 2, and Count 3 charged the Defendants with know-

ingly using, carrying, brandishing, and discharging a firearm during

and in relation to a crime of violence, 18 U.S.C. §§ 924(c)(1)(A)(iii)

and 2.

A month later, a federal agent interrogated Cosimano.

Leading up to the interrogation, Cosimano had been held on state

murder charges and had spent months in solitary confinement.

The agent told Cosimano at the outset that he had some paper-

work to go over. He then read Cosimano his Miranda 1 rights.

1 Miranda v. Arizona, 384 U.S. 436 (1966).

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Cosimano confirmed that he understood his rights and signed the

waiver form, agreeing to talk with the agent. The agent told Co-

simano that he could not make “any promises” but that Cosimano

had “an opportunity to help [himself,] [t]o put [himself] in the best

possible position.” “I’m going to give you a lot of credit and . . . a

little [ ] grace,” he told Cosimano.

For the next five hours, Cosimano spoke—often emotion-

ally—about his experience with motorcycle clubs and drug dealing.

He also discussed a fight in a Miami bar between the 69’ers and a

rival gang, the Outlaws. At one point during the conversation, Co-

simano asked the agent if it would “favor” him to “put all the infor-

mation out.” The agent replied “I don’t know,” and then added

that honesty would “help [Cosimano] out.” Cosimano later moved

to suppress these statements. His waiver, he argued, was not vol-

untary, knowing, and intelligent because the agent had improperly

downplayed the Miranda warnings. The district court denied the

motion, finding that “the defendant was well-aware of what he was

signing.” Some portions of Cosimano’s statements—those relating

to the Outlaws and the Miami incident—later came in at trial.

Before trial, Mencher and Cosimano joined in a motion to

dismiss filed by Wesling. The Defendants argued that the district

court should dismiss the Count 3 charge for use of a firearm during

and in relation to a crime of violence, 18 U.S.C. § 924(c). The pred-

icate “crime of violence” for Count 3 was the VICAR murder

charged in Count 2, which in turn was based on a violation of Flor-

ida’s first-degree murder statute. The Defendants argued that the

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predicate murder offense was not categorically a crime of violence

because it did not necessarily involve the use of physical force.

Florida first-degree murder, they posited, could be carried out non-

violently by poisoning or leaving a person for dead. The court de-

nied the motions.

As the case proceeded to trial, Cosimano and Mencher were

the only remaining defendants. They moved to sever their trials,

arguing that they planned to raise mutually antagonistic defenses.

Specifically, both Defendants planned to point the finger at the

other. “Spillover” effect also concerned the Defendants; they wor-

ried that the government would be able to introduce evidence in a

joint trial that would be inadmissible if the trials were severed. But

after the Defendants reached an agreement with the government

about redacting certain statements to limit spillover effect, the

court denied the motions to sever as moot. The court would later

give a limiting instruction reminding the jury to consider each

count and each defendant separately.

At trial, the government called Guinto and Wesling, who

had taken plea agreements, as well as Leonard and a regional 69’ers

boss, Art Siurano, who had agreed to cooperate with the govern-

ment. The government also called a slew of other witnesses in-

cluding another eye witness to the shooting. The following evi-

dence was presented.

The 69’ers motorcycle club is a “one-percent” club, meaning

its members are the “elite[s] of the outlaw biker world” and the one

percent of society that “live by their own rules.” The club has a

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written constitution and an organizational hierarchy. Club mem-

bers pay annual dues of $50 to the New York Chapter. And accord-

ing to Siurano, northeast-based chapters of the 69’ers have coordi-

nated with Florida-based chapters to distribute drugs.

Leading up to Anderson’s murder, the Florida-based 69’ers

were at odds with a rival motorcycle club, the Outlaws. To tell it

briefly, the Outlaws considered Florida their territory. When some

Outlaws, including Leonard, defected and joined Florida chapters

of the 69’ers, the Outlaws were not pleased. Tensions soon boiled

over. One night, when a St. Petersburg, Florida bar hosted a “Bike

Night,” Leonard and Guinto showed up to represent the 69’ers.

The Outlaws were there too—and in greater numbers. Several of

the Outlaws, including Pasco County President Paul Anderson,

confronted Leonard and Guinto and demanded that they hand

over their club vests—called “cuts” in the biker world—or die in

them. When Leonard and Guinto refused to comply, the Outlaws

attacked them, beat them badly, and stole their cuts.

About a week later, federal law enforcement arrested Leon-

ard on a firearms charge in New York. He entered an agreement

with the government and became a federal informant.

Meanwhile, animosity between the 69’ers and the Outlaws

mounted. Cosimano wanted revenge against the Outlaws for the

Bike Night incident. A national 69’ers boss also wanted retribution

and said the “score would not be settled until two [Outlaws] go to

the hospital and we have two of their cuts.” As Siurano put it, the

69’ers and the Outlaws “were going to war.”

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One day in late July 2017, Cosimano called Guinto and said

he was outside a St. Petersburg bar that the Outlaws frequented.

Eventually, a prominent Outlaw came out of the bar and left on his

motorcycle. It was James Costa, President of the St. Petersburg

Outlaws. Minutes later Costa was shot on the highway. Guinto

testified that Cosimano admitted to being the shooter later that

night. According to Guinto, Cosimano gave him and Wesling

clothes and a gun with instructions to get rid of them. Guinto tes-

tified that his assistance increased his stature in the club, and that

the 69’ers expected the shooting to bolster their reputation.

Hostility between the clubs showed no sign of dissipating.

Following the Bike Night incident, Cosimano had galvanized the

Killsborough 69’ers to engage in “shows of force” to antagonize the

Outlaws. In response, a contingent of Outlaws called the One Ton

Crew, led by Anderson, had threatened to take more cuts from

Killsborough Chapter members. Then, while Cosimano and a fel-

low 69’er were in Miami, they got in a bar fight with some Outlaws.

In the melee, Cosimano allegedly hit one Outlaw with a plate and

used a piece of broken plate to stab another.

This was the state of affairs on December 21, 2017, the day

Anderson was murdered. Around midday, Guinto, Robinson, and

Wesling were out having lunch when Cosimano called. He said he

knew where an Outlaw was and told the group to meet him at the

69’ers’ clubhouse. When they arrived, Cosimano and Mencher

were “getting their bikes ready . . . [, ] gearing up for a ride.” Wes-

ling would later tell Leonard that, at this point, Cosimano said he

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was going to murder Anderson. At trial, however, Wesling testi-

fied that Cosimano said he knew where Anderson was and wanted

to “beat the shit out of him.”

The group left to go after Anderson. Guinto and Robinson

took one car, Wesling drove another, and Cosimano and Mencher

took their motorcycles. Normally, Cosimano and Mencher wore

their 69’er cuts when they rode. This time, they rode without their

cuts, dressed in black, and covered their faces with bandanas. They

also flipped their license plates, making them unidentifiable, and

Cosimano removed the 69’ers stickers from his motorcycle.

At some point, the group caught up with Anderson, who

was driving a pickup truck. They followed him for about a half

hour. After Anderson passed through a toll booth off the Suncoast

Parkway, he came to a stop at a red light. Guinto and Robinson

had fallen behind, but Wesling was still on Anderson’s tail. Accord-

ing to Wesling, Cosimano and Mencher then passed him on their

motorcycles and pulled up close to Anderson’s truck—Cosimano

on the passenger side, Mencher 10 to 15 feet behind him. Cosim-

ano dismounted his bike and knocked on Anderson’s truck win-

dow. He then fired multiple gunshots into the truck, killing Ander-

son.

Besides Wesling, another driver on the road witnessed the

shooting. Although he could not identify the Defendants, he testi-

fied about the motorcycles he saw. He said the motorcycle in

front—the one that pulled up next to Anderson’s truck—had sad-

dlebags and a windshield. That description matched Cosimano’s

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motorcycle. And the motorcycle behind that one, the witness tes-

tified, had graphics of “SS lightning bolts.” That description

matched Mencher’s motorcycle.

The 69’ers left the scene after the shooting. According to

Guinto, they stopped when they got to a secluded area. Cosimano

gave Robinson a handgun, helmets, and a sweater to dispose of.

And Cosimano and Mencher changed into extra clothes they had

brought with them. Wesling testified that he met Cosimano at a

gas station a few hours later, and the two discussed the shooting.

Cosimano told Wesling he had shot Anderson to protect Leonard.

As for Mencher, he had phone conversations with Leonard

after the killing, not realizing that Leonard was a confidential in-

formant and that law enforcement was recording the call. By this

time, news stories had shown pictures of both Defendants’ motor-

cycles, so the two discussed how they would hide or disguise the

bikes. Cosimano, who was with Mencher, chimed in, telling Leon-

ard that one of the motorcycles had already been “changed . . . up,”

while the other needed to be hidden. Later, when Mencher was by

himself, he spoke again with Leonard, venting that Cosimano’s

plan to attack Anderson had been ill-conceived. “I don’t mind do-

ing things,” Mencher said, “but not in broad daylight.” Mencher

also said that he would have shot Anderson from behind if Ander-

son had tried to get away. “I would’ve just opened up into the back

of him, you know what I mean?”

At the close of the government’s case in chief, the Defend-

ants moved for judgment of acquittal. They argued in part that

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there was insufficient evidence to establish an enterprise engaged

in racketeering activity and that affected interstate commerce.

They also argued that first-degree murder could not serve as the

predicate crime of violence for the § 924(c) count. The court de-

nied the motions. The jury began deliberating on the eighth day

of trial.

An issue arose during deliberations. One of the jurors, Juror

3, did his own research on the law during a weekend break. When

deliberations resumed, he discussed his research with the other ju-

rors. The foreperson notified the court, after which the court in-

terviewed each of the jurors individually. Juror 3 admitted what

he had done. As for the other jurors, the court’s inquiry established

that some had trouble understanding Juror 3, whose first language

was not English, and that most paid little attention to his explana-

tion of the law. The jurors assured the court that they could decide

the case based on the evidence and the law the court had given

them. Having investigated, the district court decided to remove

Juror 3 and replace him with an alternate juror. Cosimano agreed

with this course of action, but Mencher moved for a mistrial. The

district court denied Mencher’s motion, replaced Juror 3, and had

the jury “begin its deliberations anew.”

The jury convicted Mencher and Cosimano on Counts 1–4

and acquitted them on other counts, some of which charged Co-

simano for his alleged role in the Costa shooting and another of

which charged Mencher with drug trafficking. The government

dismissed Count 4 at sentencing, so the district court sentenced

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Mencher and Cosimano only on Counts 1–3. The court sentenced

both Defendants to 10 years on Count 1 to run concurrently with

a life sentence on Count 2. On Count 3, Cosimano received a 10-

year sentence, and Mencher a 5-year sentence, to run consecutively

to the Count 1 and 2 sentences. Both Defendants appealed.

II. DISCUSSION

Our discussion divides into three parts. First, we address the

Defendants’ argument that the district court should have granted

judgment of acquittal on Counts 1 and 2 for conspiracy to commit

VICAR murder and VICAR murder. Second, we address the De-

fendants’ argument that their Count 3 conviction for committing a

crime of violence with a firearm should be vacated because the

predicate murder charge is not categorically a crime of violence.

Third, we address the Defendants’ remaining arguments. This

third section divides into three subsections: (1) the Defendants’ ar-

gument that the district court abused its discretion in denying their

motion to sever the trial, (2) Cosimano’s argument that his post-

Miranda statements should have been suppressed; and (3)

Mencher’s argument that the district court abused its discretion in

denying his motion for a new trial based on juror misconduct.

A. Sufficient Evidence Supported the Verdict on Counts 1 and

2

We review the sufficiency of the evidence de novo, drawing

all reasonable inferences in the government’s favor. United States

v. Hernandez, 433 F.3d 1328, 1332 (11th Cir. 2005). We must affirm

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the convictions unless there is no reasonable construction of the

evidence on which the jury could have found the Defendants guilty

beyond a reasonable doubt. Id. at 1334.

On Counts 1 and 2, the government had to prove that Co-

simano and Mencher conspired to murder Anderson, that they

aided and abetted each other in murdering him, and that the De-

fendants committed those crimes for the purpose of “maintaining

or increasing position in an enterprise engaged in racketeering ac-

tivity.” 18 U.S.C. § 1959(a). An enterprise includes “any . . . group

of individuals associated in fact although not a legal entity, which

is engaged in, or the activities of which affect, interstate or foreign

commerce.” Id. § 1959(b)(2). “[R]acketeering activity” is defined

as “any act or threat involving murder, kidnapping, gambling, ar-

son, robbery, bribery, extortion, dealing in obscene matter, or deal-

ing in a controlled substance or listed chemical . . . , which is charge-

able under State law and punishable by imprisonment for more

than one year.” Id. § 1961(1).

Mencher and Cosimano make three main arguments. First,

they challenge the sufficiency of the evidence showing that they

conspired to murder Anderson or aided and abetted his murder.

Second, they argue that the 69’ers’ Killsborough Chapter was not a

racketeering enterprise engaged in interstate commerce. Third,

they argue that the murder would not have served to maintain or

increase their position with the 69’ers.

The Defendants’ first argument relies heavily on testimony

from Wesling, who was present at the scene of the murder.

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Wesling testified that on the morning of the murder Cosimano had

said that he wanted to “beat the shit out of Anderson.” That testi-

mony, the Defendants say, establishes that the plan was to beat up

Anderson rather than kill him. They argue that the evidence, at

most, showed that the murder was a “spur of the moment” deci-

sion. There was no evidence of any advance planning, they say.

Yet the following facts allow an inference to the contrary:

• As the Defendants left the clubhouse to follow Anderson,

they brought extra clothes with them, indicating a plan to

hide their identity.

• They flipped their license plates to hide them and did not

wear their 69’er cuts as they normally would on a motorcy-

cle ride.

• The Defendants tracked Anderson for miles, and, according

to witnesses, Cosimano shot Anderson through the window

of his truck.

• After the killing, Mencher’s remarks on a recorded call with

a confidential informant supported an inference that he

knew the plan was to kill Cosimano. Mencher even bragged

that he would have killed Anderson if Cosimano was unable

to.

Based on this evidence, a reasonable jury could conclude

that the Defendants conspired to kill Anderson, and that they aided

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and abetted each other in his murder.

The Defendants also contest the jury’s finding that their lo-

cal chapter of the 69’ers was an enterprise. Instead, they say, it was

no more than a disorganized group of guys partying in a clubhouse.

And even if it could be considered an enterprise, they argue, it was

not a racketeering enterprise that affected interstate commerce.

While some of the 69’ers sold drugs, the Defendants argue that

drug dealing was separate from membership in the 69’ers.

We disagree. The definition of “enterprise” is broad. United

States v. Cagnina, 697 F.2d 915, 921 (11th Cir. 1983). An enterprise

may be a “loose or informal,” even “amoeba-like” association. Id.

That standard is easily met here. The 69’ers are a national motor-

cycle club that holds meetings, has a constitution, and requires

members to pay dues. Members wear vests with a wolf on the cen-

ter patch, and the club has used “shows of force” to assert their

dominance over other motorcycle clubs. The Killsborough Chap-

ter was part of that organization and held meetings on the first and

third Thursdays of every month. Even if the group was not highly

formalized, a jury could conclude that it was an association in fact

and thus an enterprise under the statute. See 18 U.S.C. § 1959(b)(2).

And there was evidence that the 69’ers operated as a racket-

eering enterprise that affected interstate commerce. For example,

Siurano testified that he sent drugs from New Jersey to Florida-

based 69’ers, including Robinson, who then distributed the drugs.

Drug trafficking is a type of racketeering. Id. § 1961(1). And it is

enough to satisfy the government’s burden that the enterprise—

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not necessarily each individual—engaged in racketeering and con-

duct that affected interstate commerce. See United States v. Nor-

ton, 867 F.2d 1354, 1359 (11th Cir. 1989). The evidence thus sup-

ported the jury’s finding on these elements.

The Defendants’ final argument on sufficiency of the evi-

dence is that the murder would not have served the purpose of

maintaining or increasing their position in the 69’ers. Again, we

disagree. The 69’ers’ national leadership wanted to settle a score

with the Outlaws, and there was evidence that Anderson’s murder

was meant to settle that score. A reasonable jury thus could have

inferred that the murder served to increase or maintain the Defend-

ants’ status in the 69’ers organization.

B. Florida First-Degree Murder Is a Crime of Violence

Count 3 of the indictment charged the Defendants with vio-

lating 18 U.S.C. § 924(c)(1)(A), which makes it a crime to use, carry,

or possess a firearm during a crime of violence. The predicate

crime of violence charged was VICAR murder, 18 U.S.C. §

1959(a)(1), “as charged in Count Two” of the indictment. Count 2,

in turn, charged VICAR murder based on a violation of Florida’s

first-degree murder statute, Fla. Stat. § 782.04(1)(a)1. The Defend-

ants challenge their Count 3 convictions, arguing that the predicate

murder offense was not a crime of violence.

“[W]e review de novo whether a prior conviction is a crime

of violence under § 924(c).” Steiner v. United States, 940 F.3d 1282,

1288 (11th Cir. 2019) (per curiam). This analysis generally requires

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a “categorical approach,” in which we look only to the elements of

the statute of conviction, not to the defendant’s real-world con-

duct. Mathis v. United States, 579 U.S. 500, 504 (2016). When ap-

plying the categorical approach to § 924(c), we must ask whether

the offense at issue “always requires the government to prove—

beyond a reasonable doubt, as an element of its case—the use, at-

tempted use, or threatened use of force.” United States v. Taylor,

142 S. Ct. 2015, 2020 (2022). We alter our approach, however,

when the statute of conviction is “divisible,” meaning the statute

lists multiple, alternative elements, effectively creating multiple

crimes. Mathis, 579 U.S. at 505. When dealing with a divisible stat-

ute, we employ a “modified categorical approach” in which we

consider “a limited class of documents (for example, the indict-

ment, jury instructions, or plea agreement and colloquy) to deter-

mine what crime, with what elements, a defendant was convicted

of.” Id. at 505–06 (citing Shepard v. United States, 544 U.S. 13, 26

(2005)). We “then compare that crime, as the categorical approach

commands, with the relevant generic offense.” Id. at 506.

We recently held that the VICAR statute is divisible. Al-

varado Linares v. United States, No. 19-14994, --- F.4th ----, 2022

WL 3367950, at *4 (11th Cir. Aug. 16, 2022). The statute prohibits

a number of offenses committed in aid of racketeering, including

murder, maiming, assault, and threats “to commit a crime of vio-

lence against any individual in violation of the laws of any State or

the United States.” Id. (citing 18 U.S.C. § 1959(a)). “Because the

statute lists multiple acts that each qualify as a crime, we apply the

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modified categorical approach to determinate whether a VICAR

offense is a ‘crime of violence’ under Section 924(c)(3).” Id.

A point of confusion in this case, however, has been which

murder offense we look to for purposes of the modified categorical

approach. Do we look through the VICAR statute to its state pred-

icate offense and analyze whether Florida first-degree murder is a

crime of violence? Or do we analyze whether a generic federal def-

inition of murder is categorically a crime of violence?

Our recent decision in Alvarado Linares resolves this di-

lemma. We must look to how the government charged the VICAR

offense, and when, as here, it incorporated the state law elements

into the jury charge for the VICAR offense, then we must look to

the state predicate offense, in this case Florida first-degree murder.

See id. That statute prohibits “[t]he unlawful killing of a human

being . . . [w]hen perpetrated from a premeditated design to effect

the death of the person killed or any human being.” Fla. Stat. §

782.04(1)(a)1.

Under our precedents, Florida first-degree murder is a crime

of violence. In the Armed Career Criminal Act (ACCA) 2 context,

we’ve held that Florida attempted first-degree murder and Florida

second-degree murder are crimes of violence. See Hylor v. United

States, 896 F.3d 1219, 1223 (11th Cir. 2018); United States v. Jones,

906 F.3d 1325, 1329 (11th Cir. 2018). And in the § 924(c) context,

2 ACCA’s elements clause is materially similar to that of § 924(c). Hylor v.

United States, 896 F.3d 1219, 1225 (11th Cir. 2018) (Jill Pryor, J., concurring).

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18 Opinion of the Court 19-14841

we’ve held the same as to Georgia malice murder and federal sec-

ond-degree murder. See Alvarado Linares, 2022 WL 3367950, at *5

(Georgia malice murder, prohibiting the killing of another person

with malice aforethought, “necessarily entails the use of physical

force against the person of another.”) 3; Thompson v.

United States, 924 F.3d 1153, 1158 (11th Cir. 2019) (Federal second-

degree murder, prohibiting the killing of another person with mal-

ice aforethought, necessarily involves force “capable of causing

physical pain or injury” thus satisfying § 924(c).). Naturally, then,

the same is true of Florida first-degree murder in the context of §

924(c).

Resisting this conclusion, the Defendants argue that it is pos-

sible to commit Florida first-degree murder without physical force.

They posit a few examples, like this one: “[A] defendant takes a

boat far offshore with a victim who jumps off the boat to go swim-

ming and the defendant later decides to drive the boat away and

leave the victim stranded in the ocean to die.” In this example, the

Defendants say, the elements of Florida first-degree murder would

be satisfied even though the offense did not involve physical force.

We’ve heard arguments like this before, and we’ve rejected

them. Take our decision in United States v. Sanchez, 940 F.3d 526,

3 We added that, to the extent it was relevant, generic federal murder also

meets the definition of a crime of violence because it entails “the unlawful

killing of a human being with malice aforethought.” Alvarado Linares v.

United States, No. 19-14994, --- F.4th ----, 2022 WL 3367950, at *6 (11th Cir.

Aug. 16, 2022).

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536 (11th Cir. 2019). There, the defendants argued that New York

second-degree murder is not a violent felony for purposes of the

ACCA because it can be committed nonviolently by, for example,

starving a person to death. Id. at 535. Unpersuaded, we reasoned

that “the intentional causation of bodily injury or death, even by

indirect means such as withholding medical treatment or food, nec-

essarily involves the use of physical force.” Id. “[I]t is impossible,”

we held, “to cause bodily injury without force” and thus “impossi-

ble to cause death without force.” Id. at 536. The Defendants’

drowning example fails for the same reason. Subjecting a victim to

death by drowning would involve the use of force, even if indi-

rectly.

The bottom line: to commit Florida first-degree murder, a

defendant must unlawfully kill another human with a premedi-

tated design. Fla. Stat. § 782.04(1)(a)1. To do that, a defendant

necessarily must use physical force. See Sanchez, 940 F.3d at 536.

We thus hold that the offense is categorically a crime of violence

and a proper predicate for the Defendants’ § 924(c) convictions.

C. None of the Defendants’ Other Arguments Justify Reversal

1. Motions to Sever the Trial

The next argument raised by the Defendants is that the dis-

trict court abused its discretion in allowing a joint trial. They argue

first that they presented mutually antagonistic defenses. Mencher’s

attorney, for example, argued at trial that Cosimano “set

[Mencher] up to take the fall for the killing.” Second, the

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Defendants argue that the joint trial allowed the government to

admit damaging evidence that would otherwise have been inad-

missible. Specifically, Mencher zeroes in on evidence of the Costa

shooting. If Mencher had been tried separately, he says, the jury

never would have heard about that incident because it took place

before he joined the 69’ers and he played no role in that shooting.

Cosimano, for his part, argues that evidence of Mencher’s drug

dealing, based on Mencher’s own statements, was admissible only

under the statement-of-a-party-opponent hearsay exception. That

evidence would have been inadmissible had Cosimano been tried

separately.

The government responds that mutually antagonistic de-

fenses are not necessarily prejudicial. As to spillover evidence, the

government says any prejudice was ameliorated by the district

court’s limiting instruction that the jury should consider the evi-

dence as to each defendant and each count separately.

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

cretion. United States v. Hersh, 297 F.3d 1233, 1241 (11th Cir.

2002). Generally, a joint trial is preferred when defendants are in-

dicted together. Zafiro v. United States, 506 U.S. 534, 537 (1993).

District courts should grant a severance “if there is a serious risk

that a joint trial would compromise a specific trial right of one of

the defendants, or prevent the jury from making a reliable judg-

ment about guilt or innocence.” Id. at 539. “Mutually antagonistic

defenses,” however, “are not prejudicial per se.” Id. at 538. In fact,

“the best solution in such situations,” generally, “is not severance,

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19-14841 Opinion of the Court 21

but for the trial judge to issue proper limiting instructions.” United

States v. Blankenship, 382 F.3d 1110, 1125 n.27 (11th Cir. 2004).

We’ve offered the caveat that a limiting instruction may be insuffi-

cient in a scenario where “the sheer number of defendants and

charges with different standards of proof and culpability, along

with the massive volume of evidence, makes it nearly impossible

for a jury to juggle everything properly and assess the guilt or in-

nocence of each defendant independently.” Id. at 1124.

Here, it is true that the joint trial had some spillover effect.

Evidence of the Costa shooting may not have been otherwise ad-

missible against Mencher, and evidence of Mencher’s drug dealing

may not have been otherwise admissible against Cosimano. But

the evidence was not so voluminous that it would have been

“nearly impossible” for the jury to sort through and to determine

guilt as to each defendant on each charge. See id. As a result, the

district judge’s decision to give a limiting instruction rather than

sever the trial was not an abuse of discretion. See Zafiro, 506 U.S.

at 539. We thus affirm.

2. Motion to Suppress Cosimano’s Post-Miranda Statement

Cosimano’s final argument is that the district court erred in

denying his motion to suppress statements he made during a cus-

todial interrogation. He argues that the agent improperly down-

played the Miranda warnings,4 rendering them meaningless—

4 Cosimano also argues that his rights were violated under Edwards v. Ari-

zona, 451 U.S. 477, 484–85 (1981) (holding that once a defendant has

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22 Opinion of the Court 19-14841

particularly given Cosimano’s fragile emotional state at the time.

In reviewing the denial of a motion to suppress, we review

the district court’s factual findings for clear error and its application

of the law de novo. United States v. Watkins, 760 F.3d 1271, 1282

(11th Cir. 2014). A defendant may waive his right to remain silent,

but the waiver must be voluntary, knowing, and intelligent. Mi-

randa v. Arizona, 384 U.S. 436, 444 (1966). Police are not to give

Miranda warnings in a manner that is coercive or misleading.

United States v. Beale, 921 F.2d 1412, 1435 (11th Cir. 1991). A Mi-

randa waiver is effective “if the totality of the circumstances sur-

rounding the interrogation reveal both an uncoerced choice and

the requisite level of comprehension.” United States v. Barbour,

70 F.3d 580, 585 (11th Cir. 1995) (internal quotation marks omit-

ted).

Cosimano relies heavily on our decision in Beale, where we

found Miranda warnings to be misleading because an investigator

told a defendant that waiving his rights “would not hurt him.”

Beale, 921 F.2d at 1435. That promise, we held, contradicted the

warning that the defendant’s statements could be used against him

in court. Id.; see also Hart v. Att’y Gen. of State of Fla., 323 F.3d

884, 894–95 (11th Cir. 2003) (finding Miranda warnings misleading

“expressed his desire to deal with the police only through counsel, [he] is not

subject to further interrogation by the authorities until counsel has been made

available to him”). Since Cosimano did not request to have counsel present

while he was questioned, Edwards does not help him. We thus analyze his

claim under Miranda.

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19-14841 Opinion of the Court 23

where a defendant was promised that honesty would not hurt

him).

This case, however, is distinguishable from Beale and Hart.

True, the agent told Cosimano that honesty could “help” him and

put him “in the best possible position.” But the agent made no

promises. To the contrary, the agent told Cosimano: “I’m not

making you any promises, okay? I literally, I cannot do it.” And

although Cosimano may have been in an emotionally vulnerable

state during the interview, the district court found that he “was

well-aware of what he was signing.” Because the record does not

establish that this finding was clearly erroneous, we affirm.

3. Motion for New Trial Because of Juror Misconduct

Mencher’s final argument is that the district court should

have declared a mistrial based on juror misconduct.

We review for abuse of discretion a district court’s denial of

a motion for mistrial based on the jury’s exposure to extrinsic in-

formation. United States v. Dortch, 696 F.3d 1104, 1110 (11th Cir.

2012). A mistrial is required only if the extrinsic evidence posed a

reasonable possibility of prejudice to the defendant. Id. The gov-

ernment has the burden to show that any exposure to extrinsic ev-

idence was harmless. Id. Factors relevant to this determination

include: “(1) the nature of the extrinsic evidence; (2) the manner in

which the information reached the jury; (3) the factual findings in

the district court and the manner of the court’s inquiry into the

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24 Opinion of the Court 19-14841

juror issues; and (4) the strength of the government’s case.” United

States v. Ronda, 455 F.3d 1273, 1300 (11th Cir. 2006).

To be sure, it was improper for Juror 3 to research the law

himself and share his findings with his fellow jurors. But, im-

portantly, each of the jurors assured the court that he or she would

follow the law and the court’s instructions. Based on the court’s

interview with the jurors, any exposure to extrinsic evidence was

harmless. It did not appear that the jurors took to heart what they

heard from Juror 3—much less that it would have prevented them

from fulfilling their oaths. Therefore, the district court’s decision

to replace the wayward juror rather than declare a mistrial was not

an abuse of discretion.

III. CONCLUSION

In summary, sufficient evidence supports the jury’s verdict,

and none of the trial errors alleged by the Defendants warrants re-

versal. We thus affirm.

AFFIRMED.