United States v. Kidada Savage

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

Nos. 14-1493, 14-2677 and 14-3975

UNITED STATES OF AMERICA

v.

KIDADA SAVAGE, agent of DA, agent of LI’L SIS, agent

of DIZMATIC, STEVEN NORTHINGTON, also known as

Smoke, also known as S1, also known as Syeed Burhannon,

also known as Michael Tillery, also known as Darnell Doss,

agent of Dollar Bill, ROBERT MERRITT, a/k/a

CORRECTIONAL OFFICER BISHOP, a/k/a B.J., agent of

DIRT

Kidada Savage,

Appellant in No. 14-1493

Steven Northington,

Appellant in No. 14-2677

Robert Merritt, Jr.,

Appellant in No. 14-3975

_______________

On Appeal from the United States District Court

For the Eastern District of Pennsylvania

(D.C. No. 2-07-cr -00550-006, 005, and 004)

District Judge: Honorable R. Barclay Surrick

_______________

Argued

December 15, 2022

Before: JORDAN, FUENTES and SMITH, Circuit Judges

(Filed: October 24, 2023)

_______________

Mark A. Berman [ARGUED]

Michele A. Smith

Hartmann Doherty Rosa Berman & Bulbulia

433 Hackensack Avenue – Suite 1002

Hackensack, NJ 07601

Counsel for Kidada Savage

Thomas C. Egan, III [ARGUED]

618 Swede Street

Norristown, PA 19401

Counsel for Steven Northington

Susan M. Lin [ARGUED]

Kairys Rudovsky Messing Feinberg & Lin

718 Arch Street – Ste. 501 South

Philadelphia, PA 19106

William R. Spade, Jr.

368 Laurel Chase Drive

Blowing Rock, NC 28605

Counsel for Robert Merritt

2

John M. Gallagher

Office of United States Attorney

504 W. Hamilton Street – Suite 3701

Allentown, PA 18101

David E. Troyer

Robert Zauzmer [ARGUED]

Office of United States Attorney

615 Chestnut Street – Suite 1250

Philadelphia, PA 19106

Counsel for Appellee

_______________

OPINION OF THE COURT

_______________

JORDAN, Circuit Judge.

The three appellants before us – Kidada Savage, Steven

Northington, and Robert Merritt – are serving life sentences for

their roles in the Kaboni Savage Organization (“KSO”), a

violent drug trafficking gang that was based in North

Philadelphia. The gang dealt in death and destruction,

including on one occasion the firebombing of the family home

of a former KSO member who had become a government

witness. That firebombing killed six people, including four

children.

We previously upheld the conviction and death sentence

of the gang’s eponymous ringleader, Kaboni Savage, who

ordered the firebombing. (To avoid confusion, this opinion

refers to Kaboni Savage and his sister Kidada Savage by their

first names.) In a corresponding opinion, we considered and

3

rejected all appellate arguments raised by Kaboni, most of

which had been advanced or adopted by Kidada, Merritt, and

Northington. See United States v. Savage, 970 F.3d 217, 231

(3d Cir. 2020). In the pages that follow, we resolve the

remaining arguments.

I. BACKGROUND

Under Kaboni’s leadership, the KSO sold powder

cocaine, “crack” cocaine, and liquid phencyclidine (“PCP”) in

North Philadelphia from 1997 through 2010. Each of the three

appellants was affiliated in some way with the KSO. While

Kaboni was incarcerated, Kidada coordinated KSO activities

and issued orders to other KSO members on her brother’s

behalf. Northington worked for the KSO as a drug dealer and

enforcer. On Kaboni’s instructions he caused and aided one

murder and committed another. 1 Merritt, while not a full-

fledged KSO member, sold drugs for the organization, often

1

As discussed in more detail below, Northington

controlled a drug block in North Philadelphia. He drove non-

party Lamont Lewis to the drug block and identified rival

dealer Barry Parker, who Lewis then shot for encroaching on

the territory. Northington also participated in the murder of

Tybius Flowers the day before Flowers was scheduled to

testify against Kaboni in a state-court murder trial.

4

with his older cousin, KSO member Lamont Lewis, and he

participated in the firebombing murders. 2

A. The Coleman Family Murders

The KSO’s murders of the Coleman Family occurred in

October of 2004. Between July and October of that year,

Kaboni made numerous phone calls to Kidada to discuss his

concern that KSO member Eugene Coleman was cooperating

with the police. 3 On October 8, 2004, Kaboni and Lewis

briefly spoke over the phone, during which time Lewis

expressed his fealty to Kaboni. Lewis then handed the phone

over to Kidada. After the Savage siblings finished their

conversation, Kidada told Lewis that Kaboni had ordered him

to “firebomb the Colemans’ house.” (App. at 10985-86.)

Kidada instructed that the firebombing should be done around

3:00 or 4:00 a.m. when “everybody is in the house,” and she

promised to give Lewis $5,000 for his efforts. (App. at 10986.)

Lewis enlisted Merritt to assist him, and early the next

morning the two cousins set out to firebomb the Coleman

family home. Before going to the Coleman house, Lewis and

Merritt went to a local gas station, bought two gas cans, filled

Lamont Lewis sold drugs for the KSO, which Lewis

2

would “bag up” in Kaboni’s basement. (App. at 10875,

10897.) Lewis entered into a plea agreement with the

government in this case and testified as a government witness.

3

Non-party Eugene Coleman also sold drugs for the

KSO. He was known within the KSO to be non-violent.

Coleman became a cooperating witness in a 2004 case against

Kaboni, as discussed in more detail herein.

5

them with gasoline, and put them in the trunk of the car. They

then headed to Merritt’s house in West Philadelphia to pick up

a gun, but at approximately 4:08 a.m., a Philadelphia highway

patrol officer pulled them over for speeding. The officer was

called to another scene, so he allowed them to leave and mailed

Lewis the speeding ticket.

After getting the gun, Lewis and Merritt returned to

North Philadelphia and parked around the corner from the

Coleman house. They removed the cans from the trunk,

stuffed a cloth into one of the cans to serve as a wick, and

carried the two cans to the house. As they arrived at the front

porch, Lewis gave Merritt a lighter, then he kicked in the front

door, entered the house, and fired two shots. Lewis heard a

woman say, “Who’s that?” when he kicked in the door. (App.

at 11002.) Merritt immediately ran into the house and threw a

lit gas can into the living room, causing a “big explosion.”

(App. at 11002). He then exited the house and grabbed the

unlit can and threw it into the house, too. Lewis then left a

message on Kidada’s phone, saying “it was done.” (App. at

11003-04).

The following individuals were killed by the arson:

Marcella Coleman, 54, Tameka Nash, 34, Sean Rodriguez, 15,

Tajh Porchea, 12, Khadijah Nash, 10, and Damir Jenkins, 15

months. 4

4

Lewis received $2,000 and a bottle of PCP oil for

killing the Coleman family. Lewis complained to Kidada that

she had not informed him that there were children in the home.

When Coleman learned that his family members were

murdered, he entered the protection of the U.S. Marshals’

Witness Security Unit.

6

After the Coleman family murders, the government

obtained court orders to place a recording device near Kaboni’s

federal detention center cell and another in the detention

center’s visitation room to intercept conversations Kaboni had

with his friends, associates, and other inmates. In the

recordings of the conversations that followed, Kaboni made

various vulgar and brazen statements expressing satisfaction

with the deaths of the Coleman family; he also threatened to

kill additional witnesses and their relatives. See infra n.19.

B. Procedural History

On May 9, 2012, a grand jury in the Eastern District of

Pennsylvania returned the Fourth Superseding Indictment in

this case, upon which the parties ultimately proceeded to trial.

The three defendants here were charged as follows: Count One

charged Kidada, Northington, and Merritt with RICO

conspiracy; Counts Five and Seven charged Northington with

murder in aid of racketeering for the deaths of Barry Parker and

Tybius Flowers, respectively; Count Nine charged Merritt with

conspiracy to commit murder in aid of racketeering; Counts

Ten through Fifteen charged Merritt and Kidada with murder

in aid of racketeering, one count for each of the six Coleman

family members who perished in the fire; Count Sixteen

charged Merritt and Kidada with retaliating against a witness;

and Count Seventeen charged Merritt and Kidada with using

fire in the commission of a felony. 5

5

Count Eight, which charged Northington with witness

tampering, was dismissed prior to trial, by agreement with the

government. Kaboni was charged on all counts (Counts Two,

Three, Four, and Six pertained only to him).

7

On May 13, 2013, the jury found Kidada and

Northington guilty of all the crimes with which they had been

charged; the jury found Merritt guilty on the RICO conspiracy

count but not guilty as to all other counts.

Northington’s capital penalty phase for the Flowers

murder, Count Seven, commenced on June 5, 2013. The jury

unanimously sentenced Northington to life imprisonment on

that count, and the District Court sentenced him to two

additional, concurrent terms of life imprisonment for Counts

One and Five. On February 21, 2014, the District Court

sentenced Kidada to concurrent terms of life imprisonment on

Counts One and Ten through Sixteen, and the Court imposed a

consecutive ten-year sentence on Count Seventeen. On

September 19, 2014, the District Court sentenced Robert

Merritt to life imprisonment on Count One. All four

defendants timely appealed. 6

As noted earlier, we affirmed the jury’s guilty verdict

and the District Court’s imposition of a capital sentence on

Kaboni in a precedential opinion. 7 The following discussion

6

Kaboni’s penalty phase hearings began on May 21,

2013. On May 31, the jury unanimously sentenced him to

death on all 13 capital counts (Counts 2-7 and 10-16). On June

3, the District Court imposed death sentences on those counts,

and also sentenced him to life imprisonment on Count 1 and to

ten-year terms of imprisonment on Counts 9 and 17.

7

Among other things, we held that (1) the late

appointment of a substitute capital-qualified counsel to

represent Kaboni did not constitute a constructive denial of the

8

pertains to arguments raised by Kidada, Merritt, and

Northington that we did not reach in our earlier opinion.

II. DISCUSSION 8

A. The District Court did not abuse its discretion

in refusing to grant Kidada a new trial based

on a conflict allegedly held by one of her two

attorneys.

Kidada asserts that she was denied her Sixth

Amendment right to counsel because one of her attorneys,

right to counsel, Savage, 970 F.3d at 244-48; (2) a capital

defendant does not have a statutory right to a jury drawn from

the county of the offense, id. at 250-52; (3) the District Court

did not clearly err in finding that African Americans were not

underrepresented in the qualified jury wheel, id. at 255-62; (4)

the District Court did not clearly err in finding that a

preemptory strike by the government was not racially

motivated, id. at 262-72; (5) any error in the District Court’s

transferred intent instruction was not plain, id. at 272-83; (6)

the admission of victim-impact evidence at the penalty phase

was not clearly erroneous, id. at 298-303; and (7) as a matter

of first impression, it was not unfairly prejudicial at the penalty

phase to admit color autopsy photographs of the firebombing,

id. at 303-06.

8

The District Court had jurisdiction under 18 U.S.C.

§ 3231. We have jurisdiction under 28 U.S.C. § 1291 and 18

U.S.C. § 3742(a).

9

Christopher Phillips, was burdened by a conflict of interest. 9

Specifically, she argues that Phillips’s representation violated

her Sixth Amendment right to conflict-free counsel, that

Phillips created a second conflict of interest by opposing her

motion for a mistrial, and that it was per se reversible error for

the District Court not to have immediately held an evidentiary

hearing on the matter. Before considering those three

arguments, we briefly provide an overview of the facts relevant

to her claim.

On March 19, 2013, six weeks into trial, at an off-the-

record conference, the government disclosed its receipt from

the Philadelphia District Attorney’s Office of an “assignment”

document showing that Phillips, while working in that office

as an assistant district attorney, had been assigned in October

2003 to prosecute Kaboni and a co-defendant, Anthony

Mitchell, for the murder of Kenneth Lassiter. 10 (Answering

Br. at 292.) This revelation raised the possibility of a conflict

of interest, not only because Phillips had once been assigned to

prosecute Kidada’s brother, but also because the government

9

Kidada was represented by both Phillips and co-

counsel Teresa Whalen at trial. The indictment against Kidada

gave notice of the government’s intent to seek the death penalty

against her, and the District Court appointed Whalen to serve

as learned counsel in the capital case. Whalen was permitted

to stay on the defense team when the case was de-certified as a

capital case with respect to Kidada.

10

After ordering the murder of government witness

Tybius Flowers, Kaboni was acquitted in state court of the

Lassiter murder. He was later convicted of both murders in

this case.

10

in this case had charged the Lassiter murder as a predicate

offense for the RICO conspiracy charge, and Phillips was

tasked with defending Kidada as to that count.

To address the potential conflict, the government

moved on April 5, 2013, for an evidentiary hearing. The

District Court granted the motion and subsequently appointed

separate counsel to represent the interests of Kidada and of

Phillips with respect to the alleged conflict. Kidada’s conflicts

counsel then filed a motion for a mistrial on April 26, 2013.

Instead of immediately holding an evidentiary hearing, the

Court allowed the trial to continue uninterrupted, and the jury

returned a guilty verdict against Kidada on May 13, 2013.

A few days after the jury returned its verdict, the District

Court set a briefing schedule for the mistrial motion and

scheduled a hearing for June 17, 2013. Phillips, through his

conflicts counsel, filed a brief opposing the mistrial motion. At

the hearing, he testified that he had no recollection of having

been assigned to the Lassiter matter when he was appointed to

represent Kidada. He further testified that he never reviewed

the evidence in that case, met with witnesses, contacted the

victim’s family, or discussed the case with anyone. Indeed,

nine days after Phillips was assigned to the Lassiter murder

prosecution, the case was reassigned to another assistant

district attorney.

The District Court denied Kidada’s motion for a

mistrial. In denying the motion, the Court credited Phillips’s

testimony about his lack of involvement in the prior case,

found that Phillips’s brief assignment to the Lassiter matter did

not limit his ability to vigorously defend Kidada, and observed

that Kidada had failed to demonstrate that she suffered any

11

prejudice because of Phillips’s prior assignment to the Lassiter

matter. 11

Turning to the legal issues, we begin with Kidada’s

argument that it was per se reversible error for the District

Court to wait until after the jury returned its verdict to hold a

hearing on the alleged conflict of interest. 12 The Sixth

Amendment guarantees a defendant the right to effective

assistance of counsel, which includes “a correlative right to

representation that is free from conflicts of interest.” Wood v.

Georgia, 450 U.S. 261, 271 (1981). “[A] court confronted with

and alerted to possible conflicts of interest must take adequate

steps to ascertain whether the conflicts warrant separate

counsel.” Wheat v. United States, 486 U.S. 153, 160 (1988).

11

We generally do not address conflict of interest

claims on direct appeal. United States v. Morena, 547 F.3d

191, 198 (3d Cir. 2008) (“The rationale behind this practice is

that collateral review allows for adequate factual development

of the claim, especially because ineffective assistance claims

‘frequently involve questions regarding conduct that occurred

outside the purview of the district court and therefore can be

resolved only after a factual development at an appropriate

hearing.’”) (quoting Government of Virgin Islands v. Zepp, 748

F.2d 125, 133 (3d Cir. 1984)) (internal quotation marks

omitted). Here, however, the District Court held a hearing on

the issue, providing us with an adequate record for review.

12

We review a district court’s determination with

respect to an alleged conflict of interest for an abuse of

discretion. United States v. Voigt, 89 F.3d 1050, 1074 (3d Cir.

1996).

12

As the District Court explained, the potential conflict in

this case came to light “six weeks after trial began, and after

the case had already demanded a significant amount of time

from jurors, the parties, counsel, witnesses, and the Court.”

(Kidada Supp. App. at 66 n.9.) The Court concluded that “[i]t

would have made little sense to adjourn the trial to deal with

this issue. The only reasonable course was to continue with the

trial and address the conflict issue after the jury had reached its

verdict.” (Kidada Supp. App. at 66 n.9.)

We agree that the District Court’s course of conduct was

reasonable, and we reject Kidada’s suggestion that the Sixth

Amendment imposes a rigid, blanket requirement that a court

halt trial proceedings to inquire into an alleged conflict. 13

Rather, what constitutes “adequate steps” will necessarily vary

depending on the circumstances of each case. In an instance

such as this, where the timing of a court’s investigation is at

issue, we will generally defer to the district court’s judgment

unless the objecting party can articulate prejudice and show

that the court abused its discretion. Cf. Dietz v. Bouldin, 579

U.S. 40, 47 (2016) (“[D]istrict courts have the inherent

authority to manage their dockets and courtrooms with a view

toward the efficient and expedient resolution of cases.”).

Here, Kidada recognizes that the post-trial timing of the

conflict hearing “reflected the court’s concern about the time

and expense that already had been incurred in connection

13

Kidada cites several out-of-circuit cases to support

that proposition, but those cases address circumstances in

which the trial court failed to undertake any inquiry into an

alleged conflict.

13

[with] this trial, which was a death penalty prosecution.”

(Kidada Opening Br. at 44 n.7.) Additionally, Kidada has

never contested the fact that she was represented throughout

her case by Phillips’s co-counsel, Teresa Whalen, who was not

burdened by an alleged conflict of interest. And finally, as

discussed in more detail below, Kidada has failed to show

prejudice. Considering the late stage at which the potential

conflict was brought to the Court’s attention, and that Kidada

was represented by competent co-counsel throughout trial, we

conclude that the Court took adequate steps in immediately

appointing conflicts counsel and holding a post-trial hearing on

the alleged conflict.

We next consider the merits of Kidada’s allegation that

Phillips’s representation of her was infected by a conflict of

interest. To prove a Sixth Amendment violation based on a

lawyer’s representation of another client, a defendant “must

establish that an actual conflict of interest” existed. Cuyler v.

Sullivan, 446 U.S. 335, 350 (1980). An “actual conflict of

interest is evidenced if, during the course of the representation,

the defendants’ interests diverge with respect to a material

factual or legal issue or to a course of action.” United States v.

Gambino, 864 F.2d 1064, 1070 (3d Cir. 1988) (internal

quotation marks omitted). Examples include refusing to cross-

examine a witness, failing to respond to inadmissible evidence,

or failing to “diminish the jury’s perception of a [co-

conspirator’s] guilt.” Cuyler, 446 U.S. at 349.

The record indicates that during the nine days in 2003

when Phillips was an assistant district attorney assigned to the

Lassiter matter, he took no action on that case. He did not even

recall the assignment until the government brought the

assignment memo to his attention six weeks into the Savage

14

trial. It is difficult, then, to imagine how Phillips’s brief

assignment to the Lassiter matter could have limited his ability

to represent Kidada. More importantly, except for Phillips’s

opposition to Kidada’s motion for a mistrial, which we discuss

below, Kidada has not pointed to – either in briefing or oral

argument – any concrete instance of prejudice resulting from

Phillips’s representation, and nothing in the trial record

suggests that Phillips’s interests ever diverged from hers. She

has failed to establish an actual conflict of interest.

But that does not slow her protestations. She contends

that the actual conflict standard is inapplicable here because,

“in contrast to this case,” the Supreme Court in Cuyler v.

Sullivan applied the standard where “the trial court [was] never

made aware of the conflict of interest.” (Kidada Opening Br.

at 31 n.5 (citing Cuyler, 446 U.S. at 349-50).) In other words,

Kidada asserts that the actual conflict standard applies only

when the defendant fails to raise an objection at trial. But our

own precedent forecloses that narrow reading of Cuyler. In

Simon v. Government of the Virgin Islands, we held that “[a]

petitioner claiming a conflict of interest must prove (1)

multiple representation that (2) created an actual conflict of

interest that (3) adversely affected the lawyer's performance.”

929 F.3d 118 (3d Cir. 2019) (internal quotation marks

omitted). In all cases, then, the “critical inquiry is whether

counsel actively represented conflicting interests.” Zepp, 748

F.2d at 135 (internal quotation marks omitted).

Unable to identify any point where Phillips’s interests

diverged from her own with respect to a material factual or

legal issue in the case, Kidada alleges that her “lead counsel

secretly harbored an intention to take a position adverse to the

interests of his own client, which he then did in filing his own

15

separate opposition to Kidada’s motion for a mistrial.”

(Kidada Opening Br. at 25.) Specifically, she claims that

Phillips subordinated her interests “by filing briefs through his

own separate counsel attempting to vindicate his own conduct

and opposing, and taking a position actually adverse to, his

client’s interests.” (Kidada Opening Br. at 39.)

Phillips’s opposition to Kidada’s mistrial motion falls

short of evincing an actual conflict. First, Phillips explained at

the hearing that he opposed Kidada’s motion because he felt

compelled to correct a factual misrepresentation, namely, that

he had obtained confidential information about the Lassiter

matter while serving as an assistant district attorney, when in

fact he had not. It was fully proper for Phillips to endeavor to

correct a factual misrepresentation that could harm his

professional reputation. Moreover, Philips, like all attorneys,

has a “duty of candor toward the court[.]” Rosales-Mireles v.

United States, 138 S. Ct. 1897, 1911 (2018). To have remained

mute in the face of a false factual assertion that he was

specially, if not uniquely, situated to address would have

violated that duty.

Second, Kidada moved for a mistrial after the

evidentiary portion of the trial had concluded and Phillips’s

substantive involvement at trial had all but ended. Phillips’s

co-counsel, Teresa Whalen, delivered the closing argument on

behalf of Kidada. Accordingly, even if Phillips had created a

prospective conflict of interest at the moment he opposed

Kidada’s motion for a mistrial, Kidada has not shown that their

interests ever diverged before that point, and she cannot

support her Sixth Amendment claim based on the bare

allegation that Phillips “secretly harbored” an unexplained

malintent. The actual prejudice standard requires more; it

16

requires, at a minimum, that the dissatisfied defendant produce

some evidence of divergent interests as to a material factual or

legal issue. And that is something Kidada has never done.

The District Court did not abuse its discretion

in denying motions to sever.

Both Kidada and Northington filed motions to sever,

seeking individual trials. They argued that severance was

warranted because they were charged with only a subset of the

crimes charged against Kaboni, and that the number of

defendants and charges in the case would confuse the jury.

The District Court denied their severance motions in a

comprehensive opinion, determining that “[t]he seventeen

counts are manageable” for a jury in a single case. (Kidada

Supp. App. at 25.) The Court reasoned that “the allegations in

the Indictment with respect to each Defendant are clear,” and

that “[t]he jury will be able to compartmentalize the evidence

against the various Defendants, particularly when provided

with instructions by the Court.” (Kidada Supp. App. at 41.)

Kidada and Northington now appeal the denial of their

severance motions.

As we have often observed, a defendant, properly joined

with other defendants in a criminal indictment, has “a heavy

burden in gaining severance.” United States v. Quintero, 38

F.3d 1317, 1343 (3d Cir. 1994). We review for abuse of

discretion a district court’s denial of severance. United States

14

We review a district court’s denial of a severance

motion for abuse of discretion, United States v. Hart, 273 F.3d

363, 369 (3d Cir. 2001), as more fully discussed herein.

17

v. Hart, 273 F.3d 363, 369 (3d Cir. 2001). But even when there

has been such an abuse of discretion, we will reverse a

conviction only if the appellant can show that the denial of

severance caused him “clear and substantial prejudice

resulting in a manifestly unfair trial,” and it is insufficient

“merely to allege that severance would have improved his

chances for acquittal.” United States v. Eufrasio, 935 F.2d 553,

568 (3d Cir. 1991) (quoting United States v. Reicherter, 647

F.2d 397, 400 (3d Cir. 1981)).

In assessing whether a defendant has suffered clear and

substantial prejudice, the key inquiry is “whether the jury could

have been reasonably expected to compartmentalize the

allegedly prejudicial evidence in light of the quantity and

limited admissibility of the evidence.” United States v. De

Peri, 778 F.2d 963, 984 (3d Cir. 1985). We will not find

prejudice “just because all evidence adduced is not germane to

all counts against each defendant,” or because certain

defendants are “seemingly less culpable,” or because evidence

is “more damaging to one defendant than others.” Eufrasio,

935 F.2d at 568.

In short, the bar is high and reflects the “preference in

the federal system for joint trials of defendants who are

indicted together.” Zafiro v. United States, 506 U.S. 534, 537

(1993). A joint trial promotes efficiency, avoids inconsistent

verdicts, id., permits fact finders to assess the “full extent of [a]

conspiracy,” United States v. Provenzano, 688 F.2d 194, 199

(3d Cir. 1982), abrogated on other grounds by In re Ins.

Brokerage Antitrust Litig., 618 F.3d 300, 372 (3d Cir. 2010),

and prevents “the tactical disadvantage to the government from

disclosure of its case.” United States v. Jackson, 649 F.2d 967,

973 (3d Cir. 1981).

18

Kidada and Northington contend that, because they

were charged with only a subset of the 12 murders instigated

by Kaboni in furtherance of the RICO enterprise, and due to

the complexity of the case, they were prejudiced by the

spillover of emotion evoked by evidence of crimes they didn’t

commit. 15 But, as an initial matter, Kidada and Northington

cannot show clear and substantial prejudice by simply pointing

to the fact that the government introduced evidence pertinent

to other defendants. Were that the case, “a joint trial could

rarely be held.” United States v. Dansker, 537 F.2d 40, 62 (3d

Cir. 1976), abrogated on other grounds by Griffin v. United

States, 502 U.S. 46, 57 n.2 (1991). Rather, as explained above,

the lodestar of the prejudice inquiry is “whether the evidence

is such that the jury cannot be expected to compartmentalize it

and then consider it for its proper purposes.” Id. (internal

citations omitted). That showing is absent here. We have

repeatedly affirmed convictions of defendants who were

jointly tried alongside co-defendants charged with more

serious or additional crimes, so long as the jury could

compartmentalize the evidence. See, e.g., United States v.

Walker, 657 F.3d 160, 168-71 (3d Cir. 2011) (affirming denial

of severance where two brothers were charged with the same

six crimes and only one of the brothers was charged with two

additional but related crimes); United States v. Sandini, 888

F.2d 300, 304-07 (3d Cir. 1989) (affirming denial of severance

where one conspirator was charged with a more serious

15

As a reminder, Kidada abetted the murders of the six

Coleman family members. Northington, for his part,

participated in the murders of Barry Parker and Tybius

Flowers.

19

continuing criminal enterprise offense); United States v.

Sebetich, 776 F.2d 412, 427 (3d Cir. 1985) (affirming denial of

severance where three defendants were charged with multiple

robberies, even though one defendant complained that shots

were fired only in robberies with which he was not charged,

and even though two of the three defendants made

incriminating statements to the police).

More particularly as to compartmentalization, Kidada

and Northington have not demonstrated why the jury was

incapable of managing the evidence here. Although they

describe the volume of evidence introduced by the government

against their codefendants, they do not dispute that the Court

instructed the jury to consider the charges against each

defendant separately. And, of course, we presume that the jury

will follow limiting instructions and will be able to

appropriately analyze the evidence and issues. See Richardson

v. Marsh, 481 U.S. 200, 211 (1987) (“[J]uries are presumed to

follow their instructions.”); United States v. Urban, 404 F.3d

754, 776 (3d Cir. 2005) (“We presume that the jury follows

such [limiting] instructions, and regard such instructions as

persuasive evidence that refusals to sever did not prejudice the

defendant.”) (internal citation omitted).

The verdicts in this case reinforce the soundness of that

presumption because they show that the jury thoughtfully

differentiated the crimes committed by the defendants,

yielding some not-guilty verdicts and, in Northington’s case,

sparing his life. For example, the jury found that the

government failed to prove that Kidada, Northington, or

Merritt were involved in a drug conspiracy involving quantities

that would have subjected them to higher statutory penalties.

To take another example, the jury found that the government

20

proved that Kaboni and Kidada engaged in witness retaliation

by killing the Coleman family members, but they found that

the government failed to meet its burden of proof as to Merritt.

By the same token, the jury found Merritt not guilty of

substantive counts related to the murders but convicted the

Savage siblings as to those counts. And finally, in a separate

seven-day penalty proceeding, the jury unanimously sentenced

Northington to life in prison after having sentenced Kaboni to

death.

The jury’s ability to thoughtfully differentiate among

the defendants undermines Northington’s assertion that,

considering the “graphic” and “profane” evidence against

Kaboni, the jury would necessarily find him “equally

culpable.” (Northington Opening Br. at 70-71.) On the

contrary, it is possible that Northington and Kidada benefited

from being tried alongside Kaboni, as it may have been

apparent to the jury that they were relatively less culpable than

he was and should be treated accordingly. 16

Finally, Kidada asserts that “[t]he prejudice against

[her] was further heightened by the fact that she was tried by a

death-qualified jury as the only defendant who was not facing

the death penalty.” (Kidada Opening Br. at 77.) But the

Supreme Court has specifically rejected that type of argument.

See Buchanan v. Kentucky, 483 U.S. 402, 420 (1987)

16

We are not suggesting that a severance motion should

be decided one way or another on a “next to him you’re a saint”

rationale, although extreme differences in culpability could be

a consideration. We are, however, observing that, in this case,

the District Court’s anticipatory assessment of the jury’s

capability proved to be accurate.

21

(petitioner was not deprived of his Sixth Amendment right to

an impartial jury because the prosecution was permitted to

“death-qualify” the jury to address co-defendant’s exposure to

the death penalty). A death-penalty-qualified juror, like any

other, is expected to follow the court’s instructions, presume

every defendant is innocent until proven guilty, and not vote to

convict except upon proof beyond a reasonable doubt. The

jurors here clearly did so.

The District Court did not abuse its discretion in

denying the motions to sever in this case.

Kidada argues that the District Court improperly

admitted certain inflammatory comments by Kaboni. 18 She

asserts that the comments, which were admitted as co-

conspirator statements, were not made in furtherance of a

conspiracy, that the District Court erred by failing to issue a

contemporaneous limiting instruction, and that the comments

were highly prejudicial. Before addressing her arguments, we

provide a sampling of those deeply disturbing statements and

describe what transpired at trial.

17

We review the District Court’s decision regarding the

admissibility of evidence for an abuse of discretion. United

States v. Serafini, 233 F.3d 758, 768 n.14 (3d Cir. 2000).

18

Merritt adopts Kidada’s argument in full, without

presenting any additional analysis.

22

In pretrial motions, Kaboni moved to preclude wiretap

recordings of things he said to fellow inmates. In those

conversations, Kaboni made numerous damning admissions,

telling of his delight with the Coleman murders and expressing

his intent to kill law enforcement officials and other witnesses.

The District Court allowed the government to introduce most

of those recordings.

We decline to catalogue all his heinous statements and

instead provide three examples in the footnote below, to

illustrate their shocking character. 19 Because Kaboni did not

19

In one instance, Kaboni complained to a prisoner in

an adjoining cell about having missed his daughter’s eighth

grade graduation, stating, “[t]hat’s why [they] got to pay …

Those … rats.” (App. at 1306.) Kaboni continued, “Their kids

got to pay, for making my kids cry. I want to smack one of

their four-year-old sons in the head with a bat …. Straight up.

I have dreams about killing their kids ... [c]utting their kids’

heads off.” (App. at 1306-07.) In another statement to the

same prisoner, Kaboni stated, “Yo. Can you imagine

[Coleman’s] face, man .... When that news flash or that captain

went and got him. They didn’t tell him we got some good news

and we got some bad news. They said we got some bad news

.... (Laughs) It don’t stop. Just put[,] just put etcetera after the

word dead.” (App. at 1384.) And Kaboni bragged to another

prisoner that Coleman “couldn’t view” the bodies of his family

members because they had been burned in the fire. Kaboni

said, “They shoulda, you know where they shoulda took him?

They should took him got, got some barbeque sauce and

poured it on them[.]” (App. at 1144.)

23

appeal the admissibility of the recordings, we did not directly

address in our prior opinion whether they were admissible. We

did observe, however, that the recordings “demonstrated

[Kaboni’s] complicity in the Coleman firebombing. They also

revealed [his] great satisfaction that the killings had taken

place, and the intercepted conversations revealed plans to kill

yet other witnesses and their families.” Savage, 970 F.3d at

235.

At trial, Kidada’s counsel requested a limiting

instruction as to the statements that Kaboni made to other

prisoners, arguing that the prisoners were not co-conspirators

and Kaboni’s statements to them were not made in furtherance

of the conspiracy and therefore were not admissible against

her. The District Court admitted the recordings and declined

to give a contemporaneous limiting instruction.

The District Court did, however, instruct the jury as to

both co-conspirator liability and the Kobani recordings in its

jury charge. It explained that the jury could

consider the acts and the statements of any other

member of the conspiracy during and in

furtherance of the conspiracy as evidence against

a defendant whom you have found to be a

member of the conspiracy. When persons enter

into a conspiracy, they become agents for each

other, so that the acts and the statements of one

conspirator during the existence of the

conspiracy and in furtherance of the conspiracy

24

are considered the acts and statements of all other

conspirators and are evidence against them all. 20

20

The District Court also instructed:

[T]he acts or statements of any member of a

conspiracy are treated as the acts and statements

of all members of the conspiracy if these acts and

statements were performed or spoken during the

existence of the conspiracy and to further the

objectives of the conspiracy. Therefore, ladies

and gentlemen, you may consider as evidence

against a defendant any act or statement made by

any member of the conspiracy during the

existence of the conspiracy and to further the

objectives of the conspiracy. You may consider

these acts and statements, even if they were done

or made in the absence of that defendant and

without that defendant’s knowledge at all. As

with all of the other evidence presented, ladies

and gentlemen, in this case, it is for you to decide

whether you believe this evidence and how much

weight you will give it. So, ladies and

gentlemen, the acts and the statements of a

conspirator in furtherance of the conspiracy are

the acts and statements of all members of the

conspiracy.

(App. at 15147-48.)

25

(App. at 15154-55.)

As to the cell block recordings, the District Court

specifically reminded the jury that it had “heard tape

recordings of things that certain defendants said,” which

included “foul or offensive language” or “disturbing

statements.” (App. at 15122.) The Court then cautioned that

this evidence was admitted for “limited purpose[s],” and could

be considered “only for the purpose of deciding whether the

defendant had the state of mind, knowledge or intent necessary

to commit the crimes charged in the indictment,” and not as

“proof that the defendant has a bad character or a propensity to

commit crimes.” (App. at 15122-23.) Further on, the Court

also instructed the jury that it “must separately consider the

evidence against each offense charged[.]” (App. 15127.)

Notably, Kidada neither requested supplemental instructions,

nor raised any objections to the District Court’s final

instructions.

Kidada makes several arguments regarding the cell

block recordings introduced at trial. She first argues that “[t]he

district court admitted the recordings as co-conspirator

statements, under Federal Rule of Evidence 801(d)(2)(E), and

over the repeated objections of defense counsel.” (Kidada

Opening Br. at 45.) Because the conversations were not in

furtherance of the conspiracy, she says “the district court

abused its discretion in admitting” the conversations between

Kaboni and non-members of the conspiracy, some of which

26

“were played multiple times to the jury.” (Kidada Opening Br.

at 47-51.)

That argument misses the mark because the District

Court did not ultimately admit the cell block recordings against

Kidada under the co-conspirator hearsay exception. Rather,

the Court admitted them against Kaboni alone because they

were highly probative of his guilt and not sufficiently

prejudicial to outweigh their probative value. Indeed, the

Court in its final instructions cautioned the jury that it should

consider the recorded conversations introduced at trial only in

assessing whether the defendant who made the statements had

the state of mind, knowledge, or intent necessary to commit the

charged crimes and not for any other purpose.

Kidada next argues that, notwithstanding the final jury

instructions, the District Court erred because it “did not clarify

for the jury which of the hundreds of recordings the

government had introduced at trial they could consider in

assessing Kidada’s guilt.” (Kidada Opening Br. at 58.) More

specifically, Kidada argues that the Court erred because it “did

not at any time” tell the jury that “the cell block recordings

were admissible against Kaboni alone.” (Kidada Opening Br.

at 58.) In support, she cites Zafiro, 506 U.S. at 539, in which

the Supreme Court recognized that a joint trial of co-

defendants may carry the risk of a jury being unable to make a

reliable judgment about guilt or innocence “when evidence that

the jury should not consider against a defendant and that would

not be admissible if a defendant were tried alone is admitted

against a codefendant.”

While it may have been the better course to give a

contemporaneous limiting instruction regarding the jailhouse

27

recordings, we cannot say that the District Court abused its

discretion in declining to do so. It sufficiently cautioned the

jury in its final instructions, directing the jury to consider the

recorded conversations only in assessing whether the

defendant who made the statements – Kaboni – had the state of

mind, knowledge, or intent necessary to commit the charged

crimes and not for any other purpose. Further, both Kidada and

Merritt must have regarded those instructions as adequate,

since neither requested supplemental final instructions or

raised any objections to the District Court’s final instructions.

As for Kidada’s argument on appeal that the District

Court “did not clarify, at any time during the trial or in its final

charge to the jury which of the hundreds of recordings the

government had introduced at trial were admissible against

which of the four co-defendants,” (Kidada Opening Br. at 76),

the District Court need not have supposed that the jury would

fail to follow the instructions it received. Moreover, if Kidada

was concerned that the jury would hold her accountable for

Kaboni’s comments to others, her counsel was free to address

that issue in closing argument. Her counsel did not mention

the cell block statements in closing, however, which makes

sense, as they were irrelevant to the government’s case against

her. The government, for its part, never suggested in its closing

argument that the recordings had relevance to Kidada’s guilt.

Finally, Kidada contends that the cell block recordings

were overwhelmingly prejudicial to her because, in her view,

the government’s “case against [her] … was focused on linking

her with her brother[’s] activities” and “clearly would have

been materially less compelling without the recordings of

Kaboni[.]” (Kidada Opening Br. at 61.) Kidada asserts that

“there can be no sure conviction that the guilty verdicts against

28

Kidada would have been returned in the absence of the

overwhelming amount of uniquely and unfairly prejudicial

hearsay that the government introduced at trial in the form of

Kaboni’s cell block recordings.” 21 (Kidada Opening Br. at 60.)

This argument falls flat. Her own inculpatory correspondence

with Kaboni, the testimony of witnesses such as Lamont

Lewis, and a threatening letter 22 from Kidada to Coleman

provided the jury with a more than sufficient evidentiary basis

to establish her participation in the Coleman family murders

and in the affairs of the KSO.

For those reasons, the District Court did not abuse its

discretion in admitting the cell block recordings and declining

to give a contemporaneous limiting instruction.

D. The District Court did not abuse its discretion

in denying Northington’s motion for a

mistrial.

Northington next argues that he is entitled to a mistrial

because the prosecutor identified him as one of the perpetrators

21

(See also Kidada Opening Br. at 61 (“The

government’s case against Kidada, which was focused on

linking her with her brother[’s] activities, clearly would have

been materially less compelling without the recordings of

Kaboni, to whom – as the government portrayed it – she was

particularly devoted.”)).

22

Kidada wrote to Coleman: “Death before dishonor …

to your family. If you said something, let us know. If you

didn’t, let us know. We have to know what’s going on. Don’t

say shit to nobody.” (App. at 8946.)

29

of the Coleman family firebombing during closing arguments,

even though he was not charged with committing that crime.

Because the District Court immediately cured any error, we

conclude that it did not abuse its discretion in denying

Northington’s motion for mistrial.

During closing arguments, the government summarized

the Coleman family murders. Northington’s three co-

defendants were charged with those murders, but Northington

was not. The AUSA concluded the government’s closing

argument, however, by pointing at the defendants and

repeating, “you killed them.” (App. 14396.) The transcript of

the proceeding in the jury’s presence reads as follows:

AUSA: There were six beautiful, healthy, loving

people in that house and you killed them. You

killed them, and you killed them, and you killed

them.

Counsel: Objection. We are not charged with

that arson.

AUSA: I was not pointing at Mr. Northington.

Court: That is true.

AUSA: You know who killed them. Kaboni

Savage, Kidada Savage, Robert Merritt and

Lamont Lewis.

(App. at 14396-97.)

30

After the AUSA completed the government’s closing

argument, a sidebar was held, at which time Northington

moved for a mistrial based on the prosecutor’s having pointed

at him. The District Court denied the motion and stated the

following: “I will instruct the jurors when they come back that

Mr. Northington is not charged with that crime and they are not

to consider him as being charged with that crime.” (App. at

14399.) The District Court then instructed, “[m]embers of the

jury, just one clarification for you. Ladies and gentlemen, you

should understand that Steven Northington is not charged with

any of the Coleman arson murders. Okay? He is not charged

with those crimes.” (App. at 14400.)

We review a denial of a motion for a mistrial for an

abuse of discretion. United States v. Rivas, 493 F.3d 131, 139

(3d Cir. 2007). When a motion for a mistrial is based on a

prosecutor’s remarks in a closing statement, we first determine

whether the prosecutor’s remarks were improper. United

States v. Zehrbach, 47 F.3d 1252, 1264 (3d Cir. 1995) (en

banc). If the remarks are improper, as they seem to have been

in this case, 23 “we will go on to weigh the remarks under a

23

Indeed, it seems odd for the AUSA, with an

endorsement from the Court, to disclaim having pointed at

Northington when there were only four defendants and the

“you killed them” declaration was made four times. But, as the

punctuation in the transcript indicates, it is possible that the

statement was made once as to the three culpable defendants

collectively and then was repeated as the prosecutor pointed to

each of them individually. In any event, the government does

not now dispute the misidentification. (See Answering Br. at

364 (“Mistakenly, and inadvertently, the prosecutor also

31

harmless error standard.” Id. In determining whether improper

remarks were harmless, we consider “the scope of the

objectionable comments and their relationship to the entire

proceeding, the ameliorative effect of any curative instructions

given, and the strength of the evidence supporting the

defendant’s conviction.” Id. at 1265. Here, all three factors

support a finding that Northington was not prejudiced.

First, as the government points out, “the challenged

statement consisted of one sentence comprising just two lines

in a closing argument that spanned two days, and 277 pages of

transcript.” (Answering Br. at 366.) See Zehrbach, 47 F.3d at

1260, 1267 (finding no prejudice when challenged remarks

regarding prosecutor’s view of credibility and guilt of two

witnesses were two sentences in a closing argument that filled

40 pages of transcript); United States v. Homer, 545 F.2d 864,

868 (3d Cir. 1976) (finding no prejudice when questionable

comments regarding sending a message to the public and other

corrupt officials constituted two paragraphs in 60 pages of

closing argument). Thus, in the context of two days of closing

arguments – let alone a 10-week trial – the AUSA’s mistake

was relatively fleeting.

Second, the District Court effectively cured any effect

of the brief misstatement and hand gesture. Moments after the

AUSA pointed at Northington, the District Court reminded the

jury that Northington was not charged in the Coleman family

murders. A jury is presumed to follow a court’s instruction to

disregard inadmissible evidence inadvertently presented to it,

pointed at Northington and, without using Northington’s name,

repeated the phrase[: ‘and you killed them.’”]).)

32

“unless there is an ‘overwhelming probability’ that the jury

will be unable to follow the court’s instructions, and a strong

likelihood that the effect of the evidence would be

‘devastating’ to the defendant.” Greer v. Miller, 483 U.S. 756,

766 n.8 (1987) (citation omitted). In addition to the District

Court’s specific and immediate instructions, the Court also

instructed the jury at the close of the case that the comments of

counsel, such as closing arguments, are not evidence.

And third, the jury heard overwhelming evidence in

support of the government’s racketeering conspiracy count and

two murder counts against Northington, including extensive

firsthand evidence of Northington’s membership in the KSO

and his participation in the murders of Barry Parker and Tybius

Flowers.

In short, the government’s error was harmless, and the

denial of Northington’s motion for a mistrial was no abuse of

discretion.

E. The District Court properly admitted

evidence seized from Northington’s residence.

Northington next argues that the District Court clearly

erred in admitting evidence seized from his residence pursuant

to a search warrant that he contends was inaccurate and

misleading. 24 Before addressing that argument, we describe

24

“We review for clear error a district court’s

determination regarding whether false statements in a warrant

application were made with reckless disregard for the truth. …

[A]fter putting aside any false statements made [knowingly

and deliberately or] with reckless disregard for the truth, we

33

the events that led the police to apply for a warrant to search

Northington’s residence, the contents of that warrant, and the

District Court’s ruling on the admissibility of the evidence

seized pursuant to the warrant.

1. Barry Parker’s murder and the

warrant to search Northington’s

residence

Northington, who lived at 3908 North Franklin Street,

sold crack for the KSO near his home. When rival drug dealer

Barry Parker encroached on his turf, Northington complained

to Kaboni, who told him to “handle [his] business.” (App. at

8849-53, 10846.) The import of that statement in the violent

context of the KSO was clear.

Lamont Lewis, whom Kaboni had recruited to assist

Northington in killing Parker, testified that on February 26,

2003, he and Northington were circling the 3900 block of

North Franklin in Northington’s car, searching for Parker.

When Northington spotted Parker on the corner of Franklin and

Luzerne Streets, he parked his car nearby. Lewis then left the

car, walked up to Parker, and shot Parker three times in the

chest, killing him.

Soon after the killing, Detective Kenneth Rossiter

arrived on the scene and interviewed witnesses. Based on

those interviews, Detective Rossiter prepared a warrant

application and supporting affidavit to search 3908 North

review de novo a district court’s substantial-basis review of a

magistrate judge’s probable cause determination.” United

States v. Desu, 23 F.4th 224, 235 (3d Cir. 2022).

34

Franklin Street. The warrant application sought authorization

to search the premises for evidence of murder, including guns,

ammunition, a black baseball cap, black jackets, black jeans,

and any contraband.

Detective Rossiter’s affidavit contained three key

pieces of information. First, Parker’s mother was walking west

on Luzerne Street toward 7th Street when she saw two men

whom she knew to be Northington and Northington’s younger

brother, Allen, crouching behind a car, while Northington had

a gun in his hand. Second, when the victim’s mother heard

gunshots, she walked toward the scene of the shooting and

observed the Northington brothers run into 3908 North

Franklin Street. She told officers what she had seen, and they

checked the premises for armed men. 25 And third, the victim’s

nephew, E.G., reported that, at the time of the shooting, he was

standing with Parker on the corner of Franklin and Luzerne

Streets when a black man wearing a black leather jacket, black

jeans, and a black baseball cap approached Parker and shot him

three times in the chest. E.G. reported that the shooter then

fled south on Franklin Street.

During the search undertaken pursuant to the warrant,

police seized multiple handguns, ammunition, cocaine, and

drug paraphernalia from Northington’s house.

2. Northington’s suppression motion

Northington filed a motion to suppress the seized

evidence, asserting that the police filed a misleading warrant

25

A SWAT unit secured the apartment until a search

warrant was obtained.

35

application in violation of Franks v. Delaware, 438 U.S. 154

(1978). He made two arguments before the District Court in

support of his motion, both of which he raises again on appeal.

First, he notes that, in E.G.’s statement to the police, which was

given shortly after the shooting, E.G. reported that the shooter

“took off running down Luzerne Street toward 8th Street,” as

opposed to fleeing south on Franklin Street, as Detective

Rossiter’s affidavit stated. (Northington Br. at 66-67 (quoting

Supp. App. at 147).) Northington says that Detective Rossiter

misstated E.G.’s observation to obscure the fact that the

shooter was actually running away from, and not toward, 3908

North Franklin Street. Second, Northington argues that

Detective Rossiter’s affidavit omitted that E.G. knew

Northington but “indicated clearly in his statement that

[Northington] was not the shooter of Barry Parker.”

(Northington Br. at 67.) According to Northington, those

omissions deceived the magistrate who issued the warrant

“into believing that [Northington] or his brother [was] the

gunmen,” creating the illusion of probable cause. (Northington

Br. at 67.)

The District Court rejected those arguments. While

acknowledging that Detective Rossiter’s affidavit misreported

E.G.’s statement as to the direction in which the shooter ran,

the Court concluded that Northington had not introduced any

evidence to suggest that the error was knowing or reckless, as

opposed to merely “inadvertent.” (Supp. App. at 166.) 26 In

any event, the Court observed that the mistake was immaterial

because the victim’s mother’s account was also included in the

warrant application, and she reported having seen Northington

26

Supp. App. Refers to the Supplemental Appendix of

Appellee, United States of America.

36

enter his Franklin Street residence after the shooting. (Supp.

App. at 166.)

As to Northington’s claim that Detective Rossiter

deceived the magistrate by omitting the fact that E.G. knew

Northington but did not recognize the shooter, the District

Court explained that this claim “misreads” the warrant

application because “[a]t no point does the warrant application

identify [Northington] as the shooter.” (Supp. App. at 166.)

Instead, “the warrant implicates [Northington] in the murder

due to … [the] positive identification [by the victim’s mother

of Northington] as having been at the scene of the murder, with

a gun in his hand, and then placing him inside 3908 North

Franklin after the shooting.” (Supp. App. at 166-67.)

To succeed on a Franks claim, a defendant must prove

by a preponderance of the evidence that the affiant knowingly

and deliberately, or with reckless disregard for the truth,

included a falsehood or omission in the warrant application,

and he must prove that the resulting false statement was

material to the probable cause determination. Franks, 438 U.S.

at 171-72. In assessing materiality, the court excises the

erroneous information, inserts the missing information, and

then determines whether the “reformulated affidavit

established probable cause.” United States v. Yusuf, 461 F.3d

374, 383-84, 390 (3d Cir. 2006).

Northington fails on both prongs of the Franks test.

First, as the District Court correctly observed, Northington has

not pointed to any evidence to suggest that the affidavit in

question was knowingly or recklessly false. And second, any

omissions or misrepresentations were indeed immaterial to the

probable cause determination. While it seems that E.G. did not

37

recognize the shooter, the warrant application did not identify

Northington as the shooter. Additionally, even if E.G.’s

observations concerning the identity of the shooter and the

direction in which he ran were omitted from Detective

Rossiter’s affidavit, the affidavit would nonetheless establish

probable cause because it also contained the report of the

victim’s mother, who identified Northington as having been at

the scene of the murder with a gun in his hand and as having

entered his residence at 3908 North Franklin soon thereafter.

Accordingly, we conclude that the District Court did not

clearly err in finding that any misstatements or omissions in

Detective Rossiter’s affidavit were inadvertent, and that, even

excluding E.G.’s account, the affidavit contained a sufficient

basis for the magistrate’s probable cause determination.

Before trial, the government gave notice to Northington

of its intention to introduce evidence found during his 2004

arrest on a federal warrant, asserting that it was admissible

intrinsic evidence of the existence of the charged RICO

conspiracy. The government also asserted that, even if the

District Court deemed the evidence to be extrinsic of bad acts

beyond the conspiracy evidence, it was nevertheless

admissible under Federal Rule of Evidence 404(b). 27

27

“We review the District Court’s decision to admit

evidence under Rule 404(b) for an abuse of discretion, which

‘may be reversed only when clearly contrary to reason and not

38

(Northington Supp. App. at 18 (citing Fed. R. Evid.

404(b)(2)).) The District Court admitted the evidence over

Northington’s objection.

Here is the backstory on that earlier arrest. On

September 8, 2004, while Northington was driving with his

cousin in a rental vehicle approximately two miles from the

Coleman residence, he was pulled over by Philadelphia police

officers. When the police asked him to identify himself,

Northington, who was “dressed in Muslim garb,” provided

“one of his multiple false names.” (Northington Br. at 18.)

One of the officers recognized Northington, however, and he

was arrested on a federal warrant. The officers subsequently

found a loaded handgun, a full can of gasoline, and a bag of

latex gloves in the car.

The government argued in a motion in limine that the

circumstances of Northington’s arrest were intrinsic evidence

of his involvement in the charged RICO conspiracy. 28

justified by the evidence.’” United States v. Butch, 256 F.3d

171, 175 (3d Cir. 2001) (internal quotation marks omitted).

28

The indictment alleged that Northington had been a

member of the KSO since 1997, and that the KSO used

violence and intimidation to maintain its drug trafficking

operations and to intimidate or retaliate against potential

witnesses. The indictment charged that KSO members

committed murders to further the aims of the KSO, and that

Northington participated in two such murders: the murder of

rival drug dealer Barry Parker in 2003, and the murder of

Tybius Flowers in 2004, to prevent Flowers from testifying in

Kaboni’s state trial for the murder of Kenneth Lassiter.

39

Specifically, the government argued that the circumstances of

Northington’s arrest would allow the jury to conclude that

Northington intended to firebomb the Coleman home, but that

his arrest prevented him from doing so. In support of that

theory, the government sought to also introduce a recording of

a June 4, 2004, phone conversation between Kidada and

Kaboni, in which Kaboni ordered Kidada in coded language to

instruct Northington that he “better go ahead” and “to get on

that.” 29 (Northington Supp. App. at 40-41.)

Northington filed a motion to preclude the evidence on

the grounds that he was not charged with the Coleman family

murders, that the government’s theory was speculative, and

that the evidence would be unfairly prejudicial to him.

The District Court admitted the evidence, reasoning that

the circumstances of Northington’s arrest tended to directly

prove the charged RICO conspiracy and so the evidence was

intrinsic to the charge. The Court further determined that, even

if the evidence was not intrinsic to the charged conspiracy, it

was admissible under Rule 404(b) because it showed the

relationship between the co-defendants, the nature and

background of the conspiracy, the motive and intent for

retaliating against government witnesses, and a specific

Northington was not charged with the firebombing and murder

of the Coleman family that ultimately took place a month after

his 2004 arrest.

29

Immediately before speaking with Kidada, Kaboni

was speaking with KSO affiliate Raymond Wilmore, to whom

Kaboni stated, “Oh, well tell [Kidada] he better go ahead man.”

(Northington Supp. App. at 40.)

40

method of retaliation. Finally, the Court conducted a Rule 403

analysis. It determined that the evidence was highly probative

of the existence of, and Northington’s participation in, a RICO

conspiracy, and that the probative value of the evidence was

not substantially outweighed by a risk of unfair prejudice.

While “[e]vidence of any other crime, wrong, or act is

not admissible to prove a person’s character in order to show

that on a particular occasion the person acted in accordance

with [his] character[,]” Fed. R. Evid. 404(b)(1), that rule “does

not apply to evidence of uncharged offenses committed by a

defendant when those acts are intrinsic to the proof of the

charged offense.” United States v. Gibbs, 190 F.3d 188, 217

(3d Cir. 1999). Intrinsic evidence is evidence that directly

proves the charged offense, or that constitutes “uncharged acts

performed contemporaneously with the charged crime … if

they facilitate the commission of the charged crime.” United

States v. Green, 617 F.3d 233, 248-49 (3d Cir. 2010) (internal

quotation marks omitted).

Northington argues that the evidence relating to his

September 2004 arrest is not intrinsic to the case against him

because the government did not charge him with any acts

relating to the Coleman killings. That argument is unavailing

because, as the District Court observed, the indictment charged

that the KSO used acts of intimidation and retaliation to

maintain and further the objectives of the KSO, that murders

were committed for this purpose, and that Northington

committed two such murders. Accordingly, evidence that

Northington endeavored to firebomb the Coleman home would

be highly probative of his participation in the charged RICO

conspiracy, as it would show unity of purpose and his

commitment to the KSO’s objectives.

41

Northington’s other argument, that the evidence was not

capable of supporting a finding that he attempted to firebomb

the Coleman residence, is more compelling. First, Northington

points out that the June 20, 2004 phone call took place three

months before his arrest, and yet the government cannot

account for the delay between Kaboni’s supposed order and

when Northington undertook to carry out the order. Second,

Northington contends he was not implicated in the June 20,

2004 recorded phone call. During that call, Kaboni told Kidada

that an individual called “Money Sign” had “better get on that.”

(Northington App. at 40.) But neither the indictments nor any

of the discovery materials attribute the moniker “Money Sign”

to Northington. Moreover, the lead investigator testified

before the federal grand jury and later at trial that he did not

know who “Money Sign” was. Third and relatedly,

Northington notes that Kaboni never explicitly explained what

“Money Sign” was supposed to do. (Northington Br. at 27

(“Was [Money Sign] supposed to collect a debt? Sell Drugs?

Pay a visit to the prison …. There exist an incalculable number

of possibilities.”).) Finally, Northington objects to the

inference drawn by the government because he was arrested

approximately two miles from the Coleman residence, was

traveling in the opposite direction of that house, and was closer

to his own home than to the Colemans’.

In further support of his argument that the government’s

theory “was unadulterated speculation,” Northington argues

that “[i]f the Government legitimately believed that [he] had

taken substantial steps to firebomb the Coleman family,”

surely his acts on September 8, 2004 would have been listed as

predicate acts in the 140-paragraph RICO conspiracy count

and as a separate count charging him with attempted murder.

42

(Northington Br. at 26, 32.) Northington also notes that the

government’s witness list included Raymond Wilmore,

through whom Kaboni supposedly gave Kidada the go-ahead

to order the firebombing, but the government “opted not to call

Willmore as a witness to either confirm or deny that ‘Money

Sign’ was [Northington].” (Northington Br. at 30.)

As the above demonstrates, Northington has reasonable

grounds for arguing that the evidence involving his arrest, and

the phone call made three months earlier, fail to support a

finding that he attempted to firebomb the Coleman family

home. Of course, it is not for us to decide whether the evidence

establishes that Northington was en route to murder the

Colemans. Rather, the question is whether the District Court

abused its discretion in admitting the evidence.

The government’s theory, although circumstantial and

vulnerable to critique, is plausible. As the District Court

observed, the police arrested Northington in the vicinity of the

Coleman residence, he gave a false name to the police, and he

possessed materials to carry out a firebombing. And, although

there is scant evidence directly linking Northington with the

moniker “Money Sign,” he did go by a similar alias: “Dollar

Bill.” The record indicates that Kaboni was adamant that

“Money Sign” fulfill an unknown order, and considering

Kaboni’s preoccupation with retribution against Coleman, a

jury could reasonably conclude that the unspoken order was to

go through with the Coleman killings. Finally, the KSO

ultimately killed the Coleman family members by throwing a

lit can of gasoline into their home, so a jury could conclude

that, under the circumstances, it was no coincidence that

Northington possessed materials that would enable him, a well-

43

known KSO member, to carry out the killing at Kaboni’s

behest.

Based on those proffered facts, a jury could reasonably

conclude that the evidence relating to Northington’s arrest

showed that he intended to firebomb the Coleman home. We

also decline to disturb the District Court’s ruling that the

probative value of the evidence was not substantially

outweighed by the risk of unfair prejudice. We generally will

not reverse a district court’s Rule 403 decision unless the

“analysis [undertaken] and resulting conclusion” is “arbitrary

or irrational.” United States v. Kellogg, 510 F.3d 188, 197 (3d

Cir. 2007); see also id. (noting that if “judicial self-restraint is

ever desirable, it is when a Rule 403 analysis of a trial court is

reviewed by an appellate tribunal” (citation and internal

quotation marks omitted)).

Rule 403 guards against “unfair” prejudice, that is,

prejudice “based on something other than [the evidence’s]

persuasive weight.” United States v. Bergrin, 682 F.3d 261,

279-80 (3d Cir. 2012) (citation omitted). Unfair prejudice

“does not simply mean damage to the opponent’s cause” but is

“prejudice of the sort which clouds impartial scrutiny and

reasoned evaluation of the facts, which inhibits neutral

application of principles of law to the facts as found.” United

States v. Starnes, 583 F.3d 196, 215 (3d Cir. 2009) (quoting

Goodman v. Pa. Tpk. Comm’n, 293 F.3d 655, 670 (3d Cir.

2002)).

It was not arbitrary or irrational for the District Court to

conclude that the evidence was not unfairly prejudicial. While

the government argued at trial that the evidence relating to

Northington’s arrest supported an inference that he was willing

44

to carry out the firebombing, and that he was therefore acting

in furtherance of a conspiratorial objective, Northington was

not charged with the Coleman murders. Additionally,

Northington strenuously opposed the government’s view of the

evidence in his closing argument, attacking each link in the

government’s chain of logic. The jury therefore had the

information it needed to sift through the evidence and resolve

whether or not to draw the inference that Northington

attempted to carry out the firebombing.

Finally, in light of the credible and extensive testimony

implicating Northington in the murders of Barry Parker and

Tybius Flowers, we conclude there was little risk that the

evidence relating to Northington’s arrest would cause the jury

to convict Northington for those murders on an improper

emotional basis rather than on the evidence presented at trial.

In sum, because we agree with the District Court that a

jury could reasonably conclude that the evidence relating to

Northington’s arrest would allow the jury to conclude it was

more likely than not that Northington intended to firebomb the

Coleman home, 30 and because the Court’s Rule 403 ruling was

30

When dealing with issues of relevance based on

conditional facts, Federal Rule of Evidence 104(b) requires

courts to examine the proffered evidence and determine

whether a jury could reasonably find the conditional fact by a

preponderance of the evidence. Huddleston v. United States,

485 U.S. 681, 689-90 (1988) (citing Fed. R. Evid. 104(b)).

“Evidence is reliable for purposes of Rule 404(b) ‘unless it is

so preposterous that it could not be believed by a rational and

properly instructed juror.’” Bergrin, 682 F.3d at 279 (quoting

United States v. Siegel, 536 F.3d 306, 319 (4th Cir. 2008), in

45

not arbitrary or irrational, we conclude that the District Court

did not abuse its discretion in admitting the evidence. Because

we hold that the admitted evidence was intrinsic to proving

Northington’s involvement in the RICO conspiracy, we do not

reach the District Court’s ruling that the evidence was also

admissible under Rule 404(b).

Northington alone challenges the government’s

peremptory strike of Juror #364, whom Northington contends

was struck because of her race. Juror #364 identified herself

as a 46-year-old African-American woman who has a 26-year-

old son, and who works as a business analyst. In response to a

juror questionnaire, she provided answers that raised concern

for the government. First, she stated that her residence was

burned in a fire. Second, she reported that, five years earlier,

her son was shot three times while sitting in his car, which

the form of a parenthetical). As a reminder, the evidence

relating to Northington’s arrest included that he was near the

Coleman family home, that he had a loaded handgun, a full can

of gasoline, and a bag of latex gloves in the car, and that

Kaboni had ordered a person called “Money Sign” – similar to

Northington’s alias, “Dollar Bill” – to “go ahead” and “get on

that.”

31

A district court’s determination of whether a

prosecutor harbored discriminatory intent in striking a juror is

a “pure issue of fact” which should be given “great deference”

on review, and the clearly erroneous standard applies.

Hernandez v. New York, 500 U.S. 352, 364-66 (1991).

46

made her emotional and caused her to start crying. Third, she

stated that she had maintained a relationship with a man who

had been charged with assault, and that she had visited him in

jail. And fourth, she indicated that she was opposed to the

death penalty.

The government exercised a peremptory strike to

remove Juror #364 from the jury, and in response Northington

challenged the government’s strike as being race-based. After

hearing the government’s explanations for striking the juror,

the District Court rejected Northington’s argument. The Court

explained,

Based upon all the circumstances, including the

fact that, prior to this strike, an African-

American juror had already been empaneled, and

taking into account the prosecutor’s demeanor

and credibility, we are satisfied that the

Government’s reason for striking the juror was

not pretextual, and not in any way motivated by

a discriminatory intent.

(App. at 159, 161.)

In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme

Court held that “the State denies a black defendant equal

protection of the laws when it puts him on trial before a jury

from which members of his race have been purposefully

excluded.” Id. at 85. A district court’s assessment of motions

made under Batson involves a three-step process. The

defendant must first establish a prima facie case of race-based

discrimination in the exercise of a peremptory strike.

Hernandez v. New York, 500 U.S. 352, 358 (1991). Among the

47

factors the trial court may consider at this first step of the

Batson inquiry are the number of racial group members in the

panel, the nature of the crime, the race of the defendant and the

victim, a pattern of strikes against racial group members, and

the prosecution’s questions and statements during the voir dire.

United States v. Clemons, 843 F.2d 741, 746-48 (3d Cir. 1988).

Then, if the prima facie case has been made, “the burden

shifts to the prosecutor to articulate a race-neutral explanation

for striking the jurors in question.” Id. at 358-59. This step

“does not demand an explanation that is persuasive, or even

plausible,” as the issue is not “the reasonableness of the

asserted nonracial motive,” but rather “the genuineness of the

motive.” Purkett v. Elem, 514 U.S. 765, 768-69 (1995).

Finally, if the government presents a race-neutral

explanation, the defendant must prove purposeful

discrimination by showing that the proffered explanation is

pretextual. Hernandez, 500 U.S. at 359. “[T]he ultimate

burden of persuasion regarding racial motivation rests with,

and never shifts from, the opponent of the strike.” Purkett, 514

U.S. at 768.

Here, Northington’s only support for his prima facie

case is his assertion that the “Government exercised [its]

peremptory challenge for no apparent justifiable reason[, and]

had exercised at least two other peremptory challenges on

qualified African-American jurors.” (Northington Br. at 62.)

The government’s two strikes against African-Americans fell

far short of any pattern, and indeed, the defense itself struck

two African-Americans from the jury.

As the government explains,

48

Of the approximately 145 [potential jurors] who

had at that point been summoned to court to be

interviewed (up to and including Juror #364), all

but 43 were excused for cause or hardship. Of

those remaining 43 jurors, nine were seated, 12

were excused by the government, and 22 were

excused by the defense. There were six African-

Americans in the remaining group of 43, two of

whom were struck by the defense.

(Answering Br. at 135.)

Furthermore, two of the 12 jurors seated on the jury

were African-American, as was the first alternate juror. Nor

has Northington demonstrated that any other factor

traditionally considered at the first step of the Batson inquiry

supports that conclusion that peremptory challenges were

exercised based on the race of potential jurors. Because

Northington has failed to make a prima facie case, we will

affirm the District Court’s ruling. 32

32

Although we do not need to reach the second and third

steps of the Batson inquiry, to remove any doubt of

discriminatory taint, we note that Northington’s contention that

there was no race-neutral reason to strike Juror #364 is flatly

wrong. Indeed, any one of the four race-neutral concerns

identified by the government as to Juror #364, such as her

opposition to the death penalty, or that her son, like Tybius

Flowers, was shot while sitting in his car, would be sufficient

to defeat Northington’s Batson claim.

49

Merritt argues that the District Court constructively

amended the indictment in violation of the Fifth Amendment

because, whereas the indictment alleged that the KSO was the

RICO enterprise at issue and that Merritt was a KSO member,

the District Court instructed the jury that it could convict

Merritt of RICO conspiracy even if it found that Merritt was

not a member of the KSO. We begin by discussing the

allegations contained in the indictment that pertain to Merritt’s

alleged participation in the RICO conspiracy, the

government’s evidence and argument at trial, the District

Court’s jury instruction on the crime of RICO conspiracy, and

the jury’s subsequent questions pertaining to the conspiracy.

The first count of the indictment, which alleged RICO

conspiracy, accused Merritt of having been a member of a

racketeering organization. According to Count One, “[t]he

defendants and others were members of a regional criminal

organization. … This criminal organization was the Kaboni

Savage Organization (‘KSO’).” (App. at 450.) In a subsection

titled “The Defendants and Their Roles in the Enterprise,”

Count One explained Merritt’s alleged role in the KSO:

The defendants’ roles in the enterprise are as

follows … Defendant ROBERT MERRITT,

33

“We exercise plenary review in determining whether

there was a constructive amendment of the indictment[.]”

United States v. Daraio, 445 F.3d 253, 259 (3d Cir. 2006).

50

a/k/a “B.J.,” a/k/a “Bishop,” was a drug

distributor and enforcer for the KSO. He

participated in murders, murder conspiracy,

arson, the distribution of controlled substances,

carrying firearms during violent crimes, carrying

a firearm during a drug trafficking crime, witness

tampering, and witness retaliation.

(App. at 453.)

At trial, the government argued that Merritt, as a

member of the KSO, committed the specific crimes

enumerated in Count One of the Indictment. In its opening

statement, for example, the government repeatedly asserted

that Merritt “threw those gas cans in the living room.” (App.

at 3386, 3394-95.) The government also reminded the jury that

Merritt committed the alleged crimes as a KSO member:

Members of the jury, the evidence in this case

will show that the defendants Kaboni Savage,

Steven Northington, Kidada Savage and Robert

Merritt agreed to participate in the affairs of a

racketeering enterprise involving drugs, money

laundering, arson, witness tampering and

murder.

(App. at 3479.)

While conceding that Merritt “may have been more on

the periphery” of the KSO, the government argued in its

summation that Merritt, like Kaboni, Kidada and Northington,

knew the purpose of the conspiracy, and by selling drugs under

the protection of Lamont Lewis, he, too, became a member of

51

the conspiracy knowing full well of its purpose. Finally, the

government also contended that Merritt and his co-defendants

murdered the Coleman family “for the purpose of maintaining

or increasing their position in the enterprise.” (App. at 15076

(emphasis added).)

Before the charging conference, Merritt filed proposed

jury instructions that rejected the language addressing RICO

conspiracy contained in our Court’s model jury instructions.

According to Merritt, the model language was inapplicable

“[i]n a case [such as this] where the indictment alleges the

actual, ten year existence of a specific, ongoing RICO

enterprise[.]” (Merritt Supp. App. at 122.) Specifically,

Merritt objected to the following portions of the model jury

instruction for RICO conspiracy:

One important difference is that, unlike the

requirements to find (name) guilty of the RICO

offense charged in Count (No.), in order to find

(name) guilty of the RICO conspiracy charged in

Count (No.) the government is not required to

prove that the alleged enterprise actually existed,

or that the enterprise actually engaged in or its

activities actually affected interstate or foreign

commerce.

Similarly, unlike the requirements to find (name)

guilty of the RICO offense, in order to find

(name) guilty of the RICO conspiracy charged in

Count (No.) the government is not required to

prove that (name) was actually employed by or

associated with the enterprise, or that (name)

52

agreed to be employed by or to be associated

with the enterprise.

Nor does the RICO conspiracy charge require the

government to prove that (name) personally

participated in the operation or management of

the enterprise, or agreed to personally participate

in the operation or management of the enterprise.

Rather, you may find (name) guilty of the RICO

conspiracy offense if the evidence establishes

that (name) knowingly agreed to facilitate or

further a scheme which, if completed, would

constitute a RICO violation involving at least

one other conspirator who would be employed

by or associated with the enterprise and who

would participate in the operation or

management of the enterprise.

(Merritt Supp. App. at 122-24 (quoting in part the Third Circuit

Model Criminal Jury Instructions 6.18.1962D RICO

Conspiracy-Elements of the Offense (18 U.S.C. §1962(d))).)

In opposing the model instruction, Merritt said it was

“seemingly designed to accommodate a situation where

individuals knowingly conspire to do something which, if

successful, would intentionally promote the establishment of

an as yet non-existent enterprise, the interests of which the

conspirators then intend to conduct through a pattern of

racketeering activity.” (Merritt Supp. App. at 124.) In a

second filing, Merritt proposed a RICO conspiracy charge that

required the jury to first find as proven against Merritt all of

the indictment’s factual allegations pertaining to RICO

53

conspiracy before finding him guilty of RICO conspiracy.

Merritt now explains that he objected to the model language

and proposed his own jury instruction “omit[ting] the

objectionable language” because the model language relieved

the government of having to prove “the very facts that it had

alleged in the Indictment and that it had spent three months

trying to prove.” (Merritt Opening Br. at 44-45.)

The District Court gave a RICO conspiracy instruction

that reflected our Court’s model instruction. In particular, the

Court told the jury that the government did not have to prove

that the racketeering enterprise existed or that any defendant

was a member of that enterprise:

[T]he government is not required to prove that

the alleged enterprise was actually established,

that the defendant was actually employed by or

associated with the enterprise, that the defendant

was actually engaged in, or its activities actually

affected, interstate or foreign commerce, or that

the defendant actually committed any

racketeering act.

(App. at 15139.)

Merritt renewed his objection to that instruction at the

conclusion of thedistrict court’s charge. He argues that it

effectively amended the indictment.

“A constructive amendment to the indictment

constitutes ‘a per se violation of the fifth amendment’s grand

jury clause’” because it deprives the defendant of his right to

be indicted by a grand jury. United States v. Syme, 276 F.3d

54

131, 148, 154 (3d Cir. 2002) (citation omitted). “An

indictment is constructively amended when, in the absence of

a formal amendment, the evidence and jury instructions at trial

modify essential terms of the charged offense in such a way

that there is substantial likelihood that the jury may have

convicted the defendant for an offense differing from the

offense the indictment returned by the grand jury actually

charged.” United States v. Daraio, 445 F.3d 253, 259-60 (3d

Cir. 2006). Such a modification impermissibly “amend[s] the

indictment by broadening the possible bases for conviction

from that which appeared in the indictment.” United States v.

Lee, 359 F.3d 194, 208 (3d Cir. 2004).

“The key inquiry is whether the defendant was

convicted of the same conduct for which he was indicted.”

Daraio, 445 F.3d at 260 (citation omitted). In other words,

even when the district court instructs the jury on the very same

statute that the indictment charged the defendant to have

violated, the district court constructively amends the

indictment if it instructs the jury that it can convict the

defendant based on facts not alleged in the indictment.

The Supreme Court’s decision in Stirone v. United

States, 361 U.S. 212 (1960), illustrates the requirement that the

factual basis for a conviction cannot exceed the four corners of

the indictment. There, the indictment charged Stirone with a

Hobbs Act violation because he used his influential union

position and extortion to unlawfully interfere with the

interstate importation of sand. Id. at 213-14. Over Stirone’s

objection, the district court allowed the government to offer

evidence “of an effect on interstate commerce not only in sand

… but also in interference with steel shipments ….” Id. at 214.

The Court held that, even though the government indicted

55

Stirone with the “two essential elements of a Hobbs Act crime:

interference with commerce, and extortion[,]” “when only one

particular kind of commerce [i.e., sand,] is charged to have

been burdened[,] a conviction must rest on that charge and not

another, even though it be assumed that under an indictment

drawn in general terms a conviction might rest upon a showing

that commerce of one kind or another had been burdened.” Id.

at 218.

Applying Stirone, we similarly focused on the

indictment’s factual allegations in United States v. McKee, 506

F.3d 225 (3d Cir. 2007). In that case, the indictment charged

the defendants with attempting to evade taxes by “preparing,

signing, and causing the filing of false and fraudulent federal

employment tax returns.” Id. at 230. The district court,

however, instructed the jury that the government could prove

the charge by showing the defendant falsified books and

records. Id. at 229. In vacating the defendants’ convictions,

we explained that “the problem here is that the jury instructions

informed the jury that the Defendants could be convicted on

the basis of conduct that was not charged in the indictment, of

which they had no notice.” Id. at 231. And even if the jury did

in fact convict the defendants on the facts alleged in the

indictment, “it is nearly impossible for a defendant to

demonstrate that his/her conviction was based on particular

evidence or a particular theory.” Id. at 232.

We agree with Merritt that the theory that permeates the

indictment and the government’s trial arguments is that he was

a KSO member and thus a member of the RICO enterprise. We

also agree that the jury likely believed that Merritt was not a

56

KSO member. 34 We part ways with Merritt, however, as to his

assertion that his conviction cannot stand because “[t]he

indictment never alleged that Merritt was a ‘non-member’ of

the KSO who nevertheless conspired to further its criminal

aims.” (Merritt Opening Br. at 46.) In addition to charging

Merritt with membership in a RICO organization under 18

U.S.C. § 1962(c), the indictment also charged him with RICO

conspiracy under § 1962(d). 35 That the indictment charged

Merritt with both crimes did not oblige the government to

34

It is likely that the jury believed that Merritt was not

a KSO member, but that he nonetheless participated in the

conspiracy as to the firebombing. The jury found Merritt guilty

only of conspiracy but declined to convict him for the RICO

murder charges. Moreover, during deliberations, the jury

specifically asked the District Court whether membership in a

racketeering enterprise is a prerequisite for a RICO conspiracy

conviction.

35

Section 1962(c) proscribes membership in a RICO

enterprise:

It shall be unlawful for any person employed by

or associated with any enterprise engaged in, or

the activities of which affect, interstate or foreign

commerce, to conduct or participate, directly or

indirectly, in the conduct of such enterprise’s

affairs through a pattern of racketeering activity

or collection of unlawful debt.

Section 1962(d), in contrast, provides that “It shall be unlawful

for any person to conspire to violate … subsection … (c) of

this section.”

57

prove any, let alone every, alleged fact pertaining to the

§ 1962(c) charge as a prerequisite to establishing that Merritt

joined a RICO conspiracy under § 1962(d).

Here, even though the jury acquitted Merritt of the six

murders in aid of racketeering and of one charge of conspiracy

to commit murder in aid of racketeering, the jury explicitly

found beyond a reasonable doubt that Merritt at least attempted

to aid in the firebombing of the Coleman family. 36 That

suffices for liability under the RICO conspiracy provision

because a RICO conspiracy charge requires only proof of an

agreement to assist the RICO enterprise in its criminal

objectives. See Salinas v. United States, 522 U.S. 52, 64

(1997) (holding for the purpose of the RICO conspiracy

36

The jury found that Merritt:

knowingly and intentionally murdered,

knowingly aided and abetted, and willfully

caused the murder of, and aided, agreed or

attempted to aid, and solicited another to

commit, the murders of Marcella Coleman

(sentencing factor #9), Tameka Nash (sentencing

factor #10), Sean Anthony Rodriguez

(sentencing factor #11), Tajh Porchea

(sentencing factor #12), Khadijah Nash

(sentencing factor #13), and Damir Jenkins

(sentencing factor #14), human beings, all in

violation of the laws of the Commonwealth of

Pennsylvania, that is, Title 18, Pennsylvania

Consolidated Statutes Annotated, Sections

2502(a) and 306.

(App. at 668.)

58

provision that, “[i]f conspirators have a plan which calls for

some conspirators to perpetrate the crime and others to provide

support, the supporters are as guilty as the perpetrators”).

The circumstances here, then, are distinguishable from

those in Stirone and McKee. In those cases, the trial courts’

instructions authorized the jury to return a guilty verdict based

on conduct different than that set forth in the indictment,

whereas here, the jury charge did not expand the factual basis

on which Merritt could be convicted. Although the

government alleged more facts in the indictment than it proved

to the jury’s satisfaction at trial, the indictment alleged

Merritt’s involvement in the RICO conspiracy, and Merritt has

not identified any reason why we should doubt that the jury

convicted Merritt for RICO conspiracy based on facts alleged

in the indictment, namely, that he “agreed to participate in the

affairs of a racketeering enterprise involving … arson.” (App.

at 3479 (Count One of the Indictment).)

Merritt argues that, because the jury did not make the

specific finding that Merritt’s RICO conspiracy conviction was

“based on” a RICO qualifying activity for which the maximum

penalty is life imprisonment, his sentence for life imprisonment

violated Apprendi v. New Jersey, 530 U.S. 466, 490 (2000),

which requires that any fact that increases a defendant’s

sentence beyond the default statutory maximum must be found

59

by a jury. 37 The government responds that the jury verdict

sheet did connect the RICO conspiracy conviction with the

Coleman murders, which were RICO qualifying crimes, and

that, even if the status of the murders as RICO qualifying

activities could have been made more explicit to the jury, the

phrasing of the verdict sheet was certainly not plain error.

Merritt admits that he did not raise this issue below.

Accordingly, the District Court’s sentence must stand unless

Merritt can establish plain error. United States v. Olano, 507

U.S. 725, 730 (1993). To do so, he must prove that: (1) the

Court erred; (2) the error was obvious under the law at the time

of review; and (3) the error affected substantial rights, that is,

the error affected the outcome of the proceedings. Johnson v.

United States, 520 U.S. 461, 467 (1997). If all three elements

are established, we may, but need not, exercise our discretion

to award relief. Id. That discretion should be exercised only

in cases where the defendant is “actually innocent” or the error

“seriously affect[s] the fairness, integrity or public reputation

of judicial proceedings.” Olano, 507 U.S. at 736-37.

37

The Supreme Court explained that “under the Due

Process Clause of the Fifth Amendment and the notice and jury

trial guarantees of the Sixth Amendment, any fact (other than

prior conviction) that increases the maximum penalty for a

crime must be charged in an indictment, submitted to a jury,

and proven beyond a reasonable doubt. The Fourteenth

Amendment commands the same answer in [a] case involving

a state statute.” Apprendi, 530 U.S. at 476 (internal citation

and quotation marks omitted).

60

To secure a RICO conspiracy conviction, the

government must prove, among other things, that the defendant

engaged in “a pattern of racketeering activity,”

18 U.S.C. § 1962, which requires at least two acts in

furtherance of the RICO conspiracy. United States v. Fattah,

914 F.3d 112, 163 (3d Cir. 2019). The maximum penalty for

violating the RICO statute is 20 years in prison unless “the

violation is based on a racketeering activity for which the

maximum penalty includes life imprisonment.”

18 U.S.C. § 1963(a) (emphasis added).

The jury found Merritt guilty of engaging in a RICO

conspiracy. For each defendant, the jury was also “required to

unanimously find, beyond a reasonable doubt” whether the

government had “proven” or “not proven” that he or she

committed other crimes. (App. at 662-63.) The other crimes

were listed as “Special Sentencing Factors,” and included drug

distribution conspiracy, the individual murders, the Coleman

family murders, and witness retaliation, as defined by federal

or Pennsylvania law. (App. at 662-669.)

Under special sentencing factors #9 through #14, the

jury found as “proven” Merritt’s involvement in the Coleman

family murders. Murder was defined under Pennsylvania law,

and the verdict form definition read as follows:

On or about October 9, 2004, in Philadelphia, in

the Eastern District of Pennsylvania, the

defendants KABONI SAVAGE, ROBERT

MERRITT, and KIDADA SAVAGE, knowingly

and intentionally murdered, knowingly aided

and abetted and willfully caused the murder of

and aided, agreed or attempted to aid, and

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solicited another to commit, the murders of [the

Coleman Family], all in violation of the laws of

the Commonwealth of Pennsylvania, that is,

Title 18 Pennsylvania Consolidated Statutes

Annotated, Sections 2502(a) and 306.

(App. at 668 (emphasis added).)

Merritt asserts that the jury instructions erroneously

failed to require that the jury find that his RICO conspiracy

violation was “based on” a RICO qualifying activity. In

Merritt’s view, because the verdict sheet did not explicitly state

that special sentencing factors #9 through #14 were RICO

qualifying activities, and notwithstanding the jury’s finding

under those factors that, at a minimum, Merritt knowingly

agreed to aid or attempt to commit the Coleman murders, it is

possible that the jury may have premised Merritt’s RICO

conspiracy conviction on RICO qualifying activities other than

murder. 38 In support, Merritt points out that the jury did not

38

Merritt argues that the Special Sentencing Factors are

deficient for two additional reasons. First, he says that the

language of the verdict sheet contains a “legal flaw” that

“reinforce[s] the unreliability of the jury’s verdict,” in that “it

told jurors that their finding had to be beyond a reasonable

doubt either way, proven or not proven.” (Merritt Opening Br.

at 18 n.5 (citing the following statement in the verdict sheet:

“We, the jury, unanimously find that special sentencing factors

#9 through #14, as to defendant Robert Merritt, are: __ Proven

___Not Proven”).) Second, Merritt objects that special

sentencing factors #9 through #14 permitted the jury to find

first-degree murder in violation of Pennsylvania law without

finding specific intent to kill. (Merritt Opening Br. at 18 n.6.)

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find him guilty of the several counts of RICO murder alleged

against him.

If Merritt is correct that murder was not the predicate

act on which the jury found him guilty of RICO conspiracy,

then his sentence should have been no greater than the twenty-

year statutory maximum. Although the verdict sheet could

have more clearly indicated that the sentencing factors were

crimes on which the RICO conspiracy charge was based, any

error was not obvious and was unlikely to have impacted

Merritt’s sentence. First, the jury verdict form listed the

special sentencing factors as clear sub-parts of the RICO

conspiracy count. Second, the special sentencing factors were

prefaced with the following: “If you have found one or more

Merritt’s first point is immaterial because neither party

disputes that the jury found Sentencing Factor Nos. 9-14

proven beyond a reasonable doubt as to Merritt. As to the

second point, Merritt acknowledges that second-degree murder

also permits a life sentence and does not require a finding of

specific intent. In any event, the District Court did instruct the

jury about the specific intent requirement for first-degree

murder. (See App. at 15172 (“Ladies and gentlemen, under

Pennsylvania law, first degree murder is an intentional killing.

A killing is intentional if it’s committed by lying in wait or by

otherwise willful, deliberate and premeditated means.”));

(App. at 15174 (“[T]o be guilty of aiding and abetting, the

defendant must possess the intent to promote or facilitate the

commission of the crime. In the case of first degree murder,

ladies and gentlemen, the defendant must have specifically

intended that the murder occur in order for the defendant to be

guilty of first degree murder under a theory of accomplice

liability.”)).

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of the defendants guilty as to Count 1, you are also required to

unanimously find, beyond a reasonable doubt, whether those

defendants committed the acts described in the following

special sentencing factors: ….” (App. at 662 (emphasis

added).) Finally, the District Court instructed the jury: “There

are with regard to the conspiracy count a series of sentencing

factors that we ask you to consider.” (App. at 15222.)

Accordingly, it is implausible that the jury understood the

sentencing factors as describing acts unrelated to the RICO

conspiracy. 39

Moreover, Merritt’s argument would require us to credit

his theory that, even though the jury found that he joined the

RICO conspiracy, and even though it found that he participated

in the Coleman family murders, the jury determined that his

assistance in carrying out those murders was not in furtherance

of the conspiracy, and that Merritt did other, unidentified acts

in furtherance of the conspiracy such as, perhaps, selling drugs

on behalf of the KSO, that connected him to the RICO

conspiracy. This argument strains reason, especially

considering that the Coleman murders were the only special

sentencing factors that the jury found proven as to Merritt.

39

Merritt cites Burrage v. United States, 571 U.S. 204

(2014), to support his “based on” argument, but that case is

inapposite. Burrage considered a statute that increases a

defendant’s mandatory minimum sentence if the government

proves that death “results from” a narcotics distribution

offense. Id. at 209. The Supreme Court held that, as a matter

of statutory interpretation, the “death results” language imports

a “but-for causality” requirement, and not merely a

requirement that narcotics use was a contributing factor in

causing death. Id. at 216.

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Because Merritt has not met his burden of establishing

that the error was obvious and affected his substantial rights,

any error here cannot be described as plain. Additionally, in

light of the jury’s unequivocal finding that Merritt assisted in

incinerating an entire family, a semantic shortcoming in the

verdict form is insufficient to satisfy the fourth (and

discretionary) clear error factor, which looks to the justice of

the outcome and whether it would seriously affect the public

reputation of judicial proceedings. On the contrary, were we

to reduce Merritt’s life sentence for such a heinous crime, and

were we to do so on a ground he did not bother to raise at trial,

that might call our criminal justice system into disrepute. His

life sentence is well founded.

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