Petition for Writ of Certiorari — Jessica Vennie, Petitioner v. United States

No. _______

In the

Supreme Court of the United States

JESSICA VENNIE,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

JONATHAN C. SU

Counsel of Record

REBEKAH L. SOULE

LATHAM & WATKINS LLP

555 Eleventh Street, NW

Suite 1000

Washington, DC 20004

(202) 637-2200

jonathan.su@lw.com

Counsel for Petitioner

QUESTION PRESENTED

Federal Rule of Criminal Procedure 8(b) permits

joinder of multiple defendants who are “alleged to

have participated in the same act or transaction, or in

the same series of acts or transactions, constituting

an offense or offenses.” Fed. R. Crim. P. 8(b).

Petitioner was charged with racketeering and

conspiracy to distribute and possess with intent to

distribute narcotics. Petitioner was indicted along

with eight co-defendants, and tried with one of those

co-defendants.

Although petitioner and her codefendant were alleged to have participated in the

affairs of a single legal enterprise for purposes of the

Racketeer Influenced and Corrupt Organizations Act

(RICO), they were not charged or alleged to have been

part of the same conspiracy nor to have known each

other.

The question presented is:

Whether

charging

two

defendants

with

participating in the conduct of a single legal

enterprise that has many legal purposes is sufficient

to permit joinder under Rule 8(b), where the

defendants have not been alleged to have coordinated

with one another, connected with one another

through any single conspiracy, or participated in a

mutually beneficial plan.

ii

LIST OF RELATED PROCEEDINGS

Pursuant to Supreme Court Rule 14.1(b)(iii),

Petitioner states that there are no proceedings

directly related to the case in this Court.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ......................................... i

LIST OF RELATED PROCEEDINGS ...................... ii

TABLE OF AUTHORITIES ..................................... iv

OPINIONS AND ORDERS BELOW ......................... 1

JURISDICTION ......................................................... 1

STATUTORY PROVISIONS ..................................... 1

STATEMENT OF THE CASE ................................... 1

REASONS FOR GRANTING THE WRIT................. 5

CONCLUSION ......................................................... 12

APPENDIX

Opinion of the United States Court of Appeals

for the Fourth Circuit, United States

v. Vennie, No. 18-4843, 2019 WL 5395568

(4th Cir. Oct. 22, 2019) .......................................1a

Order of the United States District Court for

the District of Maryland, United States v.

Byrd, Crim. No. JKB-16-0485 (D. Md. filed

Nov. 9, 2017) .....................................................12a

Judgment of the United States District Court

for the District of Maryland, United States

v. Vennie, Crim. No. JKB-16-0485 (D. Md.

filed Nov. 14, 2018) ...........................................15a

18 U.S.C. § 1961(1), (4)-(5) ......................................23a

18 U.S.C. § 1962 ......................................................27a

Federal Rule of Criminal Procedure 8 ...................29a

iv

TABLE OF AUTHORITIES

Page(s)

CASES

Bruton v. United States,

391 U.S. 123 (1968) ................................................6

Daley v. United States,

231 F.2d 123 (1st Cir.), cert. denied, 351

U.S. 964 (1956).......................................................6

Kotteakos v. United States,

328 U.S. 750 (1946) ..........................................6, 11

Schaffer v. United States,

362 U.S. 511 (1960) ................................................5

United States v. Grey Bear,

863 F.2d 572 (8th Cir. 1988)..................................9

United States v. Lane,

474 U.S. 438 (1986) ................................................5

United States v. Mackins,

315 F.3d 399 (4th Cir.), cert. denied, 538

U.S. 1045 (2003) .....................................................7

United States v. Satterfield,

548 F.2d 1341 (9th Cir. 1977)................................8

United States v. Weiss,

491 F.2d 460 (2d Cir. 1974) ...................................8

United States v. Welch,

656 F.2d 1039 (5th Cir. Unit A 1981),

cert. denied, 456 U.S. 915 (1982) ...........................9

v

TABLE OF AUTHORITIES—Continued

Page

STATUTES

18 U.S.C. § 1956 ..........................................................3

18 U.S.C. § 1961(1)......................................................2

18 U.S.C. § 1961(4)......................................................7

18 U.S.C. § 1961(5)......................................................2

18 U.S.C. § 1962(c) ......................................................2

21 U.S.C. § 846 ............................................................3

28 U.S.C. § 1254(1)......................................................1

Pub. L. No. 91-452, 84 Stat. 922 (1970) .....................9

OTHER AUTHORITIES

Fed. R. Crim. P. 8(b) ..................................... 4, 6, 9, 10

Sup. Ct. R. 10(c) ..........................................................5

PETITION FOR A WRIT OF CERTIORARI

Petitioner Jessica Vennie respectfully petitions

this Court for a writ of certiorari to review the

judgment of the United States Court of Appeals for

the Fourth Circuit in this case.

OPINIONS AND ORDERS BELOW

The Fourth Circuit’s opinion below was

unpublished (2019 WL 5395568), and is available at

App. 1a-11a. The district court denied Ms. Vennie’s

motion for severance under the Superseding

Indictment on November 9, 2017, and the district

court’s order can be found at App. 12a-14a. The

district court issued its judgment after Ms. Vennie

was convicted via a jury trial on November 14, 2018,

and the judgment can be found at App. 15a-22a.

JURISDICTION

The Court of Appeals entered its judgment on

October 22, 2019. This Court has jurisdiction under

28 U.S.C. § 1254(1).

STATUTORY PROVISIONS

The relevant statutory provisions and rules are

available at App. 23a-29a.

STATEMENT OF THE CASE

1. Ms. Vennie was formerly a correctional officer

at the Eastern Correctional Institution (ECI), a

Maryland prison. She was initially indicted for

racketeering conspiracy and for conspiracy to

distribute and possess with intent to distribute

narcotics, along with forty other co-defendants.

2

CAJA30-651. The Indictment alleged that there was

a broad conspiracy among inmates, correctional

officers, and certain persons in the public to smuggle

controlled substances into ECI. CAJA31-33, 43-61.

As to Ms. Vennie, the core allegation was that she was

one of several correctional officers at ECI who

participated in the conspiracy. Id. Count one of the

Indictment charged Ms. Vennie, along with the other

forty co-defendants with racketeering conspiracy.

CAJA31-58. Count two charged Ms. Vennie together

and her forty co-defendants with conspiracy to

distribute and possess with intent to distribute

narcotics. CAJA59-61.

On September 12, 2017, the grand jury returned a

Superseding Indictment, charging Ms. Vennie and

the eight remaining defendants in Count One with

racketeering in violation of 18 U.S.C. § 1962(c).

CAJA66-101.2 The Superseding Indictment then

separately enumerated the alleged predicate acts for

each defendant. CAJA75-87. Unlike the Indictment,

the Superseding Indictment charged each defendant

with engaging in a predicate act of conspiracy

separately, as opposed to charging them all together

under one conspiracy. Id. In addition, Ms. Vennie

was charged with conspiracy to distribute and possess

1

Citations to “CAJA” refer to the Joint Appendix filed

below.

2

Under RICO, it is unlawful for any person “employed by

or associated with any enterprise engaged in, or the activities of

which affect, interstate or foreign commerce” to participate in

“the conduct of such enterprise’s affairs through a pattern of

racketeering activity.” 18 U.S.C. § 1962(c). A “pattern of

racketeering activity” is defined as at least two acts of

“racketeering activity,” which is in turn defined as any of a list

of predicate acts and crimes. Id. § 1961(1), (5).

3

with intent to distribute narcotics, in violation of 21

U.S.C. § 846, and money laundering, in violation of 18

U.S.C. § 1956. CAJA94-95. While all of Ms. Vennie’s

co-defendants were also charged with conspiracy

counts, the Superseding Indictment did not allege

that Ms. Vennie was part of the same conspiracy as

her co-defendants—only that each was connected to

the same alleged enterprise, ECI. CAJA66-101. Ms.

Vennie was not charged with racketeering conspiracy.

Ms. Vennie moved for severance from her codefendants under the Superseding Indictment,

arguing in part that joinder was not permissible

under Rule 8(b). See also CAJA102-17. The district

court denied the motion. App. 13a. The district court

recognized that the Government did not seek to prove

a direct connection between all the remaining codefendants, but nevertheless concluded that the

Government’s allegation that the co-defendants were

part of the same racketeering enterprise was

sufficient to permit joinder under Federal Rule of

Criminal Procedure 8(b). CAJA138-42, 144-48.

2. After several co-defendants entered into plea

agreements, the case proceeded to trial with three

remaining co-defendants, one of whom entered into a

plea agreement after the jury was empaneled,

leaving, Ms. Vennie and one co-defendant, Ms. Byrd.

In its opening statement, the Government described

its theory of the alleged relationship between Ms.

Vennie and Ms. Byrd:

Now, to be clear, Byrd and Vennie are not

charged in the same conspiracy. They are

not charged with conspiring with one

another. And the government does not

have to prove, therefore, that they did

4

conspire together, or that they knew each

other were smuggling, or even that they

knew one another existed. What these

defendants have in common is the

enterprise in this case, ECI.

CAJA212 (26:5-11).

During the trial, no evidence was introduced

suggesting that the conspiracy in which Ms. Vennie

allegedly participated overlapped with the conspiracy

in which her co-defendant Ms. Byrd allegedly

participated. The lengthy testimony against Ms.

Byrd, which was entirely unrelated to the charges or

allegations against Ms. Vennie, also included

discussions of inflammatory issues wholly unrelated

to Ms. Vennie. In closing arguments, the Government

reiterated that Ms. Vennie and Ms. Byrd were not

being charged with participating in the same

conspiracy, and explained that only the basic scheme

was similar. CAJA 1019 (43:12-19).

On July 5, 2018, the jury found Ms. Vennie guilty

of racketeering, conspiracy to distribute and possess

with intent to distribute narcotics, and money

laundering. CAJA1107-08. Ms. Byrd was acquitted

on all counts. CAJA1106-07.

3. On appeal, Ms. Vennie argued in relevant part

that her conviction should be vacated due to improper

joinder under Rule 8(b) and the district court’s refusal

to sever her case from that of her co-defendant. CA4

Opening Br. 13-16. She argued that the Government

failed to point to any participants in common, to

allege that the two defendants were separate arms of

the same conspiracy, or to point to any evidence that

they were part of the same chain of actors. Id.; see

also Fed. R. Crim. P. 8(b) (requiring for joinder that

5

two defendants have participated in the “same series

of acts or transactions”).

On October 22, 2019, the Fourth Circuit affirmed

in an unpublished decision. App. 1a. The court of

appeals concluded that it was the allegations in the

Superseding Indictment—and not the evidence at

trial—that must be evaluated in determining

whether joinder was proper. The court then held that

“[b]ecause the superseding indictment alleged that

both women committed two of the same racketeering

acts, in furtherance of the same enterprise, and at the

same general time, the district court acted well within

the bounds of Rule 8(b) in allowing joinder.” App. 3a.

REASONS FOR GRANTING THE WRIT

This Court’s review is warranted because the

Fourth Circuit decided an important question of

federal law that has not been, but should be, settled

by this Court.

See Sup. Ct. R. 10(c).

The

interpretation of Rule 8(b) in the context of

substantive racketeering charges is an important

federal issue. Although this Court has addressed

Rule 8(b) in the context of conspiracy claims, Schaffer

v. United States, 362 U.S. 511, 513-14 (1960), and in

relation to whether misjoinder under Rule 8(b) falls

under the harmless error standard, United States v.

Lane, 474 U.S. 438, 447 (1986), the Court has never

addressed how Rule 8(b) applies in the context of a

substantive racketeering charge. This Court should

grant review and clarify that merely alleging that

two defendants “committed two of the same

racketeering acts, in furtherance of the same [legal]

enterprise, and at the same general time” is

insufficient to satisfy Rule 8(b). App. 3a.

6

1. Rule 8(b) provides that defendants may be

joined if they are “alleged to have participated in the

same act or transaction, or in the same series of acts

or transactions, constituting an offense or offenses.”

Fed. R. Crim. P. 8(b). That rule serves as an

important limitation on when the Government can

charge and try multiple defendants together. This

Court has recognized that in those situations where

Rule 8(b) permits joinder it does so to “promote

economy and efficiency and to avoid a multiplicity of

trials.” Bruton v. United States, 391 U.S. 123, 131 n.6

(1968) (quoting Daley v. United States, 231 F.2d 123,

125 (1st Cir.), cert. denied, 351 U.S. 964 (1956)).

Although joinder is an important tool in that

respect, the limits of Rule 8(b) are crucial to avoiding

“substantial prejudice to the right of the defendants

to a fair trial.” Id. A defendant charged with

committing a crime is entitled to a separate trial from

other defendants who have not participated in the

same act or transaction or the same series of acts or

transactions. See Fed. R. Crim. P. 8(b); Kotteakos v.

United States, 328 U.S. 750, 775 (1946) (a defendant

has the “right not to be tried en masse for the

conglomeration of distinct and separate offenses

committed by others”).

The Fourth Circuit’s interpretation of Rule 8(b) in

the context of substantive racketeering charges

nullifies the rule’s limits requiring multiple

defendants to have been involved in the same “series

of acts or transactions” in order to be charged

together. Under the Fourth Circuit’s interpretation,

two defendants need not be involved in the same

conspiracy, work together, or otherwise know each

other; it is enough that two RICO defendants commit

“two of the same racketeering acts, in furtherance of

7

the same enterprise, and at the same general time.”

App. 3a (emphasis added). The joinder inquiry thus

shifts from looking to the actions of multiple

defendants to determine whether they are “part of

the same act or transaction” ( as required under Rule

8(b), to looking at whether otherwise unconnected

acts can be somehow linked through allegations

involving the same legal entity affecting interstate or

foreign commerce (that is, a RICO “enterprise”).

Under RICO, an enterprise can include almost any

grouping of people, large or small, closely linked or

distantly connected. RICO defines an enterprise as

“including any individual, partnership, corporation,

association, or other legal entity, and any union or

group of individuals associated in fact although not a

legal entity.” 18 U.S.C. § 1961(4). To be sure, two

defendants may be sufficiently connected to be

charged together under Rule 8(b) where they are both

linked to an association-in-fact criminal conspiracy

that is defined as the enterprise. But where the

enterprise is defined as a large government

organization, as in Ms. Vennie’s case (where the

enterprise was defined as ECI), a shared connection

to the same enterprise does not similarly entail a

connection between the criminal activity that they

are charged with.

The Fourth Circuit’s RICO-specific standard

expands the limits of Rule 8(b) to become co-extensive

with those of its more permissive partner, Rule 8(a),

which governs the joinder of multiple offenses (rather

than multiple defendants). While Rule 8(a) permits

joinder of offenses which are of “the same or similar

character,” such a loose nexus is insufficient under

Rule 8(b). See United States v. Mackins, 315 F.3d

399, 412 (4th Cir.) (comparing Rule 8(a)’s looser

8

requirements with those of Rule 8(b)), cert. denied,

538 U.S. 1045 (2003); United States v. Satterfield, 548

F.2d 1341, 1344 (9th Cir. 1977) (same); United States

v. Weiss, 491 F.2d 460, 467 (2d Cir. 1974) (same).

The Fourth Circuit’s decision would permit

almost any two defendants charged with substantive

racketeering to be tried together, as the sole nexus

that would be required for joinder is a link to the

same broadly defined legal enterprise. For example,

a defendant who is charged with racketeering by

repeatedly bribing a customs agent on the Canadian

border could be charged under the same indictment

and tried with someone who is charged with

repeatedly bribing a customs agent on the Mexican

border, despite not knowing one another, not being

connected to one another through any larger criminal

scheme or organization, and not having any shared

aim. All the Government would need to do is define

the RICO enterprise as “the U.S. Customs and

Border Protection Agency.” Similarly, a banker

charged with racketeering for laundering money

while employed by a bank branch in Portland,

Oregon could be charged together with another

banker indicted for engaging in (entirely

unconnected) money laundering while working at

another branch of that same bank in Portland,

Maine.

In enacting RICO, Congress expanded the

Government’s ability to charge multiple defendants

together in the same case, but it did not override the

basic limits of Rule 8(b). Nor would interpreting it to

have done so be consistent with Congress’s expressed

goals. Through RICO, Congress quite clearly sought

to “eradicate[e ] organized crime . . . by establishing

new penal prohibitions, and by providing enhanced

9

sanctions and new remedies to deal with the

unlawful activities of those engaged in organized

crime.” Pub. L. No. 91-452, § 1, 84 Stat. 922, 923

(1970). There is nothing to suggest that RICO was

intended to establish a mechanism to charge crimes

together that under any definition are unorganized.

Id.

The Fourth Circuit’s RICO-specific approach thus

flies in the face of the statutory text, see Fed. R. Crim.

P. 8(b), and the common-sense notion that “there

must be some common conspiracy or scheme

connecting all acts of the series in order to provide

proper joinder,” United States v. Grey Bear, 863 F.2d

572, 575 (8th Cir. 1988) (per curiam), and it cannot

be justified by RICO’s text, history, or purpose. This

Court should grant review to correct that error.

2. The Fourth Circuit is not alone in its erroneous

interpretation of Rule 8(b) in the context of

substantive racketeering charges. In United States

v. Welch, the Fifth Circuit held that joinder of two

separate conspiracies was permitted because they

were linked in the indictment by a substantive RICO

count connecting both conspiracies to the same

enterprise (a Sherriff’s office). 656 F.2d 1039, 1051

(5th Cir. Unit A 1981), cert. denied, 456 U.S. 915

(1982). The Fifth Circuit held that defendants

charged with participating in two separate

conspiracies can be joined under Rule 8(b) so long as

all the predicate acts are “committed in the conduct

of the affairs of a[] [single] enterprise.” Id. at 1052.

3. Because of this erroneous interpretation of

Rule 8(b), Ms. Vennie was charged and tried together

with a co-defendant whom she did not know or

interact with, whom her alleged co-conspirators did

not interact with, and with whom her alleged

10

criminal acts were entirely separate from. Even

looking solely at the Superseding Indictment against

Ms. Vennie and her co-defendants, the basic

requirements of Rule 8(b) have not been met.

CAJA66-101.

Nothing in the Superseding

Indictment alleges that the multiple defendants

committed the same acts or series of transactions.

See Fed. R. Crim. P. 8(b). While the Superseding

Indictment charged Ms. Vennie and her codefendants together under the same substantive

racketeering charge, each of the identified predicate

acts was separate for each defendant. CAJA75-87.

Nor did the Superseding Indictment include a

racketeering conspiracy charge.

The Government’s case at trial further confirms

that joinder was improper.

From its opening

statements, the Government made its position clear

that Ms. Vennie and her co-defendant Ms. Byrd were

not connected to each other through being members

of the same conspiracy, but only that they were

connected to ECI. CAJA212 (26:5-11). Nor did any of

the testimony suggest that Ms. Vennie and Ms. Byrd

knew each other at all, let alone were part of the same

larger conspiracy.

The prejudicial testimony

regarding Ms. Byrd was entirely unrelated to Ms.

Vennie, and would not have been admissible had Ms.

Vennie had the separate trial to which she was

entitled. In closing arguments, the Government

confirmed what the evidence had showed, stating:

“Byrd and Vennie were not in the same conspiracy.

They didn’t conspire with one another. What joins—

what they have in common is the fact that they’re in

ECI, and that is a racketeering enterprise.”

CAJA1019 (43:12-15). However, being employed by

the same government agency is insufficient to permit

11

joinder under Rule 8(b), even where both were

charged with substantive racketeering in connection

with the same enterprise.

The facts of this case provide a particularly

appropriate vehicle for review. In the Fifth Circuit’s

decision in Welch, for instance, there was at least an

arguable connection between the two conspiracies

because the same sheriff was at the center of both.

Here, in contrast, the only link between the

defendants was their employment by the same large

legal enterprise and the fact that they were charged

with similar—yet entirely independent—criminal

acts. There was no allegation that a single coconspirator linked Ms. Vennie’s actions with that of

her co-defendants. This Court should take the

opportunity to clarify that more is needed before

multiple defendants can be “tried en masse for the

conglomeration of distinct and separate offenses

committed by others.” Kotteakos, 328 U.S. at 775.

12

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

JONATHAN C. SU

Counsel of Record

REBEKAH L. SOULE

LATHAM & WATKINS LLP

555 Eleventh Street, NW

Suite 1000

Washington, DC 20004

(202) 637-2200

jonathan.su@lw.com

Counsel for Petitioner

January 21, 2020

APPENDIX

TABLE OF CONTENTS

Page

Opinion of the United States Court of Appeals

for the Fourth Circuit, United States

v. Vennie, No. 18-4843, 2019 WL 5395568

(4th Cir. Oct. 22, 2019) .......................................1a

Order of the United States District Court for

the District of Maryland, United States v.

Byrd, Crim. No. JKB-16-0485 (D. Md. filed

Nov. 9, 2017) .....................................................12a

Judgment of the United States District Court

for the District of Maryland, United States

v. Vennie, Crim. No. JKB-16-0485 (D. Md.

filed Nov. 14, 2018) ...........................................15a

18 U.S.C. § 1961(1), (4)-(5) ......................................23a

18 U.S.C. § 1962 ......................................................27a

Federal Rule of Criminal Procedure 8 ...................29a

1a

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 18-4843

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JESSICA VENNIE,

Defendant-Appellant.

Appeal from the United States District Court for the

District of Maryland, at Baltimore.

James K. Bredar, Chief District Judge. (1:16-cr00485-JKB-8)

Submitted: September 20, 2019

Decided: October 22, 2019

Before: NIEMEYER and MOTZ, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion

Rebekah L. Soule, Jonathan C. Su, LATHAM &

WATKINS LLP, Washington, D.C., for Appellant.

Robert K. Hur, United States Attorney, Leo J. Wise,

Assistant United States Attorney, Robert R. Harding,

Assistant United States Attorney, OFFICE OF THE

2a

UNITED

STATES

ATTORNEY,

Maryland, for Appellee.

Baltimore,

Unpublished opinions are not binding precedent in

this circuit.

PER CURIAM:

Following a multi-day jury trial in June 2018,

Jessica Vennie was convicted of racketeering, in

violation of 18 U.S.C. § 1962(c) (2012); conspiracy to

distribute and to possess with intent to distribute K2

(synthetic marijuana), in violation of 21 U.S.C.

§§ 841, 846 (2012); and money laundering conspiracy,

in violation of 18 U.S.C. § 1956(h) (2012). The district

court sentenced Vennie to 72 months in prison.

Vennie appeals, raising two issues pertaining to her

convictions and one challenge to her sentence. For the

reasons that follow, we affirm.

I.

Vennie first argues that her case was improperly

joined with that of her codefendant, Jocelyn Byrd.1

This court reviews “de novo the district court’s refusal

to grant defendants’ misjoinder motion to determine

if the initial joinder of offenses and defendants was

proper under Fed. R. Crim. P. 8(a) and 8(b)

respectively.” United States v. Mackins, 315 F.3d 399,

412 (4th Cir. 2003). If the initial joinder was correct,

we then analyze whether the denial of the defendant’s

motion to sever amounts to an abuse of discretion

under Fed. R. Crim. P. 14. Id. But if the joinder was

erroneous in the first instance, we review “this

nonconstitutional error for harmlessness, and [will]

1

The jury acquitted Byrd of all charges.

3a

reverse unless the misjoinder resulted in no actual

prejudice to the defendants because it had no

substantial and injurious effect or influence in

determining the jury’s verdict.” United States v.

Cannady, 924 F.3d 94, 102 (4th Cir. 2019) (brackets

and internal quotation marks omitted).

We first conclude that the district court’s joinder

ruling was proper. As the Sixth Circuit recently

observed, “[f]or joinder, the allegations in the

indictment are what matter.” United States v.

Ledbetter, 929 F.3d 338, 346 (6th Cir.), pet. for cert.

filed, __ U.S.L.W. __ (U.S. Aug. 22, 2019) (No. 195663). Under Rule 8(b), an indictment may join two

or more defendants if those defendants “are alleged to

have participated in the same act or transaction, or in

the same series of acts or transactions, constituting

an offense or offenses.” Here, Vennie and Byrd, both

correctional officers employed at Eastern Correctional

Institution (ECI) during the relevant time frame,

were charged with a substantive racketeering offense

related to the same alleged enterprise—ECI. The

superseding indictment charged that Vennie and

Byrd committed two of the same racketeering acts.

Because the superseding indictment alleged that both

women committed two of the same racketeering acts,

in furtherance of the same enterprise, and at the same

general time, the district court acted well within the

bounds of Rule 8(b) in allowing joinder. Accord id.

(affirming the joinder of multiple defendants in a

RICO prosecution where “the defendants were

charged with participating in or assisting the same

racketeering enterprise” and “[e]very count in the

indictment allegedly arose out of defendants’ conduct

on behalf of or in coordination with the” identified

enterprise); United States v. Whitfield, 590 F.3d 325,

4a

355 (5th Cir. 2009) (“When otherwise separate

offenses are charged as predicate acts of a substantive

RICO count, they may be related to each other in such

a way as to satisfy Rule 8(b)” (alteration and internal

quotation marks omitted)).

Vennie next contends that she was prejudiced by

the denial of her motion to sever and thus that the

court abused its discretion in denying that motion.

But the general rule in this circuit is clear: “when

defendants are indicted together, they should be tried

together.” United States v. Dinkins, 691 F.3d 358, 368

(4th Cir. 2012). To show prejudice resulting from the

denial of a pretrial motion to sever, the defendant

must satisfy “the heavy burden” of demonstrating

that the jury could not reach “a reliable judgment as

to guilt or innocence” because of the joint trial. United

States v. White, 737 F.3d 1121, 1133 (7th Cir. 2013)

(internal quotation marks omitted). Vennie’s efforts

to make such a showing fall short.

First, that evidence was offered of no relevance to

Vennie’s individual charges is not dispositive. It is

well settled that “a defendant is not entitled to

severance merely because he might have had a better

chance of acquittal in a separate trial.” United States

v. Lighty, 616 F.3d 321, 348 (4th Cir. 2010). The

Supreme Court has held that limiting instructions

“often will suffice to cure any risk of prejudice” caused

by joinder, Zafiro v. United States, 506 U.S. 534, 539

(1993), and the court gave such a limiting instruction

in this case. Second, the allegedly inflammatory

evidence presented to establish Byrd’s personal

relationships with certain inmates cannot be said to

have unduly swayed the jury given that the jury

acquitted Byrd of all charges—despite the admission

of this evidence.

Finally, Vennie does not

5a

demonstrate that the testimonial evidence as to

retaliatory prison gang violence was of such a quality

or pervasiveness as to create a concern that it unfairly

and irreparably infected the jury. We thus affirm the

district court’s joinder ruling.

II.

Vennie next argues the district court erred in

denying her motion for a mistrial. We review the

denial of a motion for a mistrial for an abuse of

discretion. United States v. Wallace, 515 F.3d 327,

330 (4th Cir. 2008).

Vennie’s motion for a mistrial hinged on one

statement made by FBI Special Agent Joseph Perrino

(Agent Perrino). Specifically, on cross-examination,

Vennie’s lawyer questioned Agent Perrino about

Agent Perrino’s efforts to prepare a cooperating codefendant to testify. When asked if he told this

witness the case was proceeding against Vennie and

Byrd, Agent Perrino responded, “Well, sir, you know,

we had a guilty plea the morning of—.” (J.A. 831).2

The district court immediately stopped Agent

Perrino’s testimony and conferred with the parties

outside the jury’s presence.

At this point, Vennie moved for a mistrial on the

ground that Agent Perrino’s just quoted testimony

improperly informed the jury of a non-testifying codefendant’s guilty plea. See United States v. Blevins,

960 F.2d 1252, 1260 (4th Cir. 1992) (“[E]vidence of a

non-testifying co-defendant’s guilty plea should not be

put before the jury.”). In denying Vennie’s motion for

a mistrial, the district court first recognized that

2 Citations to the “J.A.” refer to the joint appendix

submitted by the parties.

6a

whether the challenged testimony constituted

impermissible testimony as to a non-testifying codefendant’s guilty plea is questionable because Agent

Perrino neither identified the co-defendant by name

nor explicitly linked the mentioned guilty plea to a

defendant in this case. Nonetheless, the district court

concluded that, assuming error occurred, such error

was harmless.

Thereafter, the district court

instructed the jury that any other person’s decision to

plead guilty was a “personal decision[] about their

own guilt”; that the jury should not “speculate about

the reasons why” co-defendants were not part of the

trial; and that the jury should not use any individual’s

decision to plead guilty “in any way as evidence

against or unfavorable to the defendants on trial

here.” (J.A. 844-45).

On appeal, Vennie contends the district court

erred in denying her motion for a mistrial. In support,

Vennie posits that the district court erred in allowing

Agent Perrino to inform the jury of a non-testifying

co-defendant’s guilty plea and that such error is not

harmless beyond a reasonable doubt. In response, the

Government first contends that Agent Perrino’s

testimony on cross-examination did not place before

the jury any improper evidence of a non-testifying codefendant’s guilty plea.

Alternatively, the

Government maintains that any error resulting from

the statement is harmless beyond a reasonable doubt.

It is well settled “that evidence of a non-testifying

co-defendant’s guilty plea should not be put before the

jury.” Blevins, 960 F.2d at 1260. The two reasons for

this restriction are: (1) the co-defendant is not present

to be cross-examined about his motives for pleading

guilty; and (2) the jury might consider the codefendant’s guilty plea as evidence of the defendant’s

7a

guilt. Id. Although we have recognized “that the

error in introducing the guilty pleas of non-testifying

co-defendants is of constitutional dimension[,]” such

error is subject to harmless error review. Id. at 1262;

see United States v. Poole, 640 F.3d 114, 118-19 (4th

Cir. 2011) (explaining that the trial court’s “repeated

references” to the earlier guilty pleas of co-defendants

is a trial error reviewable for harmlessness and not a

structural error). Under this standard, a mistrial

must be declared unless this court is satisfied “beyond

a reasonable doubt” that the impact of the error was

harmless.

Blevins, 960 F.2d at 1262.

The

harmlessness inquiry “requires a quantitative

assessment of the likely impact of the error measured

against the other evidence presented at trial.”

Blevins, 960 F.2d at 1263. In other words, we ask

whether “a rational trier of fact would have found

[Vennie] guilty absent the error.” Poole, 640 F.3d at

120.

Even assuming arguendo that Agent Perrino

impermissibly apprised the jury of a non-testifying codefendant’s guilty plea, the district court did not

abuse its discretion in denying Vennie’s motion for a

mistrial on this basis because such assumed error was

harmless beyond a reasonable doubt. Notably, after

the challenged testimony arose, the district court

gave the jury an exacting and complete cautionary

instruction on this issue, and this court presumes that

a jury follows this type of cautionary instruction.

United States v. Saint Louis, 889 F.3d 145, 155 (4th

Cir.), cert. denied, 139 S. Ct. 269 (2018). By way of

this instruction, the district court effectively

safeguarded Vennie from any prejudice resulting

from Agent Perrino’s response. Id. at 155-56. Nor is

Vennie’s claim of irreparable prejudice particularly

8a

colorable when considered in light of the weight of the

Government’s evidence, which included inculpating

testimony by two co-defendants; testimony from an

eyewitness who observed Vennie and two coconspirators packaging contraband for Vennie to

smuggle into ECI; and robust documentary evidence

offered through various witnesses, which included

corroborating text messages and evidence of financial

transactions. Our examination of the entire trial

leads us to this inescapable conclusion: a rational

finder of fact would have found Vennie guilty absent

the challenged testimony. Poole, 640 F.3d at 120.

Accordingly, we conclude the district court did not

abuse its discretion in denying Vennie’s motion for a

mistrial, see Wallace, 515 F.3d at 330, because Agent

Perrino’s statement “was harmless beyond a

reasonable doubt,” Blevins, 960 F.2d at 1262.

III.

Finally, Vennie assigns reversible procedural

error to the two role enhancements applied by the

district court at sentencing. In reviewing any federal

sentence, this court must first ensure that the district

court did not commit any “significant procedural

error,” such as failing to properly calculate the

applicable Guidelines range, consider the 18 U.S.C.

§ 3553(a) (2012) factors, or adequately explain the

sentence. Gall v. United States, 552 U.S. 38, 51

(2007). If a party asserts on appeal a claim of

procedural sentencing error that it preserved before

the district court, we review for abuse of discretion

and will reverse unless we conclude that the error was

harmless. United States v. Lynn, 592 F.3d 572, 576

(4th Cir. 2010). In evaluating a challenge to the

district court’s computation of a defendant’s

Guidelines range, this court reviews for clear error

9a

the underlying factual determinations made by the

district court and reviews de novo its relevant legal

conclusions. See United States v. Alvarado Perez, 609

F.3d 609, 612 (4th Cir. 2010).

In the presentence report, the probation officer

grouped the three counts of conviction and relied on

the money laundering guideline, U.S. Sentencing

Guidelines Manual § 2S1.1(a)(1) (2016), to determine

Vennie’s base offense level. This guideline directs the

use of the base offense level “for the underlying

offense from which the laundered funds were

derived,” which, in this case, was racketeering. The

racketeering guideline, USSG § 2E1.1(a)(1), provides

for a base offense level of 19. To this, the probation

officer recommended a two-level enhancement under

USSG § 2S1.1(b)(2)(B) because Vennie was convicted

under 18 U.S.C. § 1956. The probation officer also

recommended a two-level enhancement for abuse of a

position of trust, see USSG § 3B1.3, and a four-level

enhancement for being a leader or organizer, see

USSG § 3B1.1(a). Over Vennie’s objections, the

district court sustained the Chapter 3 enhancements,

but reduced the role enhancement to three levels for

being a manager or supervisor. See USSG § 3B1.1(b).

Vennie contends on appeal that the district court

procedurally erred in its application of the Chapter 3

enhancements because it relied on acts apart from the

conduct related to the money laundering conspiracy

to support the enhancements. Vennie’s argument

finds support in the Guidelines Commentary to USSG

§ 2S1.1, which provides:

“[A]pplication of any

Chapter Three adjustment shall be determined based

on the offense covered by this guideline (i.e., the

laundering of criminally derived funds) and not on the

underlying offense from which the laundered funds

10a

were derived.” USSG § 2S1.1 cmt. n.2(C); see United

States v. Howard, 309 F. App’x 760, 769 (4th Cir.

2009) (argued but unpublished) (finding reversible

sentencing error when the district court’s “manager

or supervisor” finding was based on the defendant’s

role in the underlying prostitution ring as opposed to

the money laundering). However, upon review of the

record, we conclude that both enhancements were

properly applied—even with the limitation on what

aspects of Vennie’s conduct may be considered. See

Attkisson v. Holder, 925 F.3d 606, 624 (4th Cir. 2019)

(recognizing that we may “affirm on any grounds

supported by the record” (internal quotation marks

omitted)).

As to USSG § 3B1.3, Vennie’s position as a

correctional officer at ECI is undoubtedly a position of

trust, and there is no room to credibly doubt that

Vennie used that position to facilitate the money

laundering conspiracy.

Specifically, the trial

testimony established that Vennie dictated the price,

the method, and the timing of payments made in

exchange for Vennie smuggling contraband into the

prison. Vennie’s smuggling efforts were orchestrated

by an ECI inmate, aided by his nonincarcerated

girlfriend. Implicit in the court’s ruling on this issue

is the conclusion that Vennie’s role as a correctional

officer in the prison in which this inmate was housed

enhanced her ability to successfully dictate these

terms. This conclusion is eminently logical and

required no further discussion.

The record also confirms that Vennie’s conduct

solely related to the money laundering conspiracy

warranted the three-level enhancement under USSG

§ 3B1.1(b).

The trial evidence established that

Vennie was critical in (1) designing the money

11a

laundering scheme through which she hid her illgotten gains in PayPal accounts issued in the names

of her sister and cousin; and (2) directing payments to

those accounts, which were made to compensate

Vennie for smuggling contraband into ECI. Cf.

Howard, 309 F. App’x at 769. Although it did not

entirely accept the defense’s argument on this point,

the district court, which was intimately familiar with

Vennie’s criminal conduct, made this finding “even

with respect to the money laundering specifically.”

(J.A. 1182). We thus hold that, regardless of the

rationale expressed at sentencing, the district court

properly applied both enhancements.

Accordingly, we affirm the criminal judgment. We

dispense with oral argument because the facts and

legal contentions are adequately presented in the

materials before this court and argument would not

aid the decisional process.

AFFIRMED

12a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

UNITED STATES OF

AMERICA

*

*

v.

CRIMINAL

NO. JKB-16-484

*

ROZL YN BRATTEN, et

al.,

*

Defendants,

* * * * * *

UNITED STATES OF

AMERICA

*

*

*

*

v.

SHERIMA BELL, et al.,

*

*

*

*

CRIMINAL

NO. JKB-16-485

*

*

Defendants.

*

*

*

*

*

*

*

*

*

*

*

*

ORDER

The Court held a motions hearing in this case on

November 8, 2017. For the reasons stated in open

court, it is ORDERED:

1. Defendant Jocelyn Byrd’s Motion to Dismiss

Count One of the Superseding Indictment (Case

No. 16-485, ECF No. 1039) is DENIED.

2. Defendant Jocelyn Byrd’s Motion for a Bill of

Particulars (Case No. 16-485, ECF No. 1040) is

DENIED WITHOUT PREJUDICE.

13a

3. Defendant Dameshia Vennie’s Motion for a Bill

of Particulars (Case No. 16-485, ECF No. 1046)

is DENIED WITHOUT PREJUDICE.

4. All motions to sever in Case No. 16-484 (ECF

Nos. 908 & 910) are DENIED WITHOUT

PREJUDICE.

5. Defendant Jocelyn Byrd’s Motion to Dismiss or

Sever (Case No. 16-485, ECF No. 1042) is

DENIED insofar as it seeks dismissal of the

Superseding Indictment on improper joinder

grounds and DENIED WITHOUT PREJUDICE

insofar as it seeks severance.

6. Defendant Jessica Vennie’s Motion to Sever

(Case No. 16-485, ECF No. 1045) is DENIED

insofar as it seeks dismissal of the Superseding

Indictment on improper joinder grounds and

DENIED WITHOUT PREJUDICE insofar as it

seeks severance.

7. Defendant Alvin Williams’s Second Motion for

Severance (Case No. 16-485, ECF No. 1047) is

DENIED insofar as it seeks dismissal of the

Superseding Indictment on improper joinder

grounds and DENIED WITHOUT PREJUDICE

insofar as it seeks severance.

8. Defendant Dameshia Vennie’s Motion to Sever

(Case No. 16-485, ECF No. 1048) is DENIED

WITHOUT PREJUDICE.

9. Defendant Rozlyn Bratten’s Motion for

Appropriate Relief (Case No. 16-484, ECF No.

911) is DENIED insofar as it seeks dismissal of

Count One of the Superseding Indictment and is

DENIED WITHOUT PREJUDICE insofar as it

requests that trial be conducted in the Southern

Division of the United States District Court for

14a

the District of Maryland located in Greenbelt,

MD.

DATED this 8 day of November, 2017.

BY THE COURT:

/s/James K. Bredar

James K. Bredar

Chief Judge

pleaded guilty to count(s)

pleaded nolo contendere to count(s)

was found guilty on count(s) 1s, 8s, & 9s of the Superseding indictment after a plea

of not guilty.





, which was accepted by the court.

JUDGMENT IN A CRIMINAL CASE

(For Offenses Committed on or After

November 1, 1987)

Case Number: JKB-1-16-CR-00485-008

Defendant’s Attorney: Jonathan Chunwei

Su, CJA, Rebekah Soule, Norman Anderson

& Catherine Yao

Assistant U.S. Attorney: Leo Joseph Wise

Judgment



THE DEFENDANT:

JESSICA VENNIE

v.

UNITED STATES OF AMERICA

United States District Court

District of Maryland

Sheet 1 - Judgment in a Criminal Case with Supervised Release (Rev. 04/2018)

15a

Racketeering.

Conspiracy To

Distribute and

Possess W/Intent To

Distribute K2.

Money Laundering

Conspiracy.

18: l 962(c)

21:846

18:1956(h)

10/05/2016

10/05/2016

10/05/2016

9s

8s

1s

Count

Number(s)

The defendant has been found not guilty on count(s)

Counts Original Indictment is dismissed on the motion to the United States.





The defendant is adjudged guilty of the offenses listed above and sentenced as provided

in pages 2 through 6 of this judgment. The sentence is imposed pursuant to the

Sentencing Reform Act of 1984 as modified by U.S. v. Booker, 543 U.S. 220 (2005).

Nature of Offenses

Title & Section

Date

Offense Concluded

16a

IMPRISONMENT

The defendant is hereby committed to the custody of the United States Bureau of Prisons

to be imprisoned for a term of 72 months as to Count ls; 72 months as to Count 8s, to

FILED

US DISTRICT COURT

DISTRICT OF MARYLAND

2018 NOV 14 PM 12:16

CLERK’S OFFICE

AT BALTIMORE

BY

DEPUTY

/s/ James K. Bredar Nov. 13, 2018

James K. Bredar

Date

United States District Judge

November 9, 2018

Date of Imposition of Judgment

IT IS FURTHER ORDERED that the defendant shall notify the United States Attorney

for this district within 30 days of any change of name, residence, or mailing address until all

fines, restitution, costs, and special assessments imposed by this judgment are fully paid.

17a

The defendant shall surrender to the United States Marshal for this district:





The defendant is remanded to the custody of the United States Marshal.



 before 12:00 noon on

***

Monday, February 11, 2019

.

The defendant shall surrender, at her own expense, to the institution designated by

the Bureau of Prisons at the date and time specified in a written notice to be sent to

the defendant by the United States Marshal which shall not be sooner than

January 7, 2019. If the defendant does not receive such a written notice, defendant

shall surrender to the United States Marshal:

 at

a.m./p.m. on

 as notified by the United States Marshall.

The court makes the following recommendations to the Bureau of Prisons:

1. That the defendant be placed in a facility consistent with her security level that

is as close as possible to Ft. Worth, Texas.



run concurrent with count no. 1; and 72 months as to Count 9s, to run concurrent

with count nos. ls and 8s, for a total term of 72 months.

18a

***

 The above drug testing condition is suspended, based on the court’s determination

that you pose a low risk of future substance abuse. (check if applicable)

3) You must refrain from any unlawful use of a controlled substance. You must submit to

one drug test within 15 days of release from imprisonment and at least two periodic drug

tests thereafter, as determined by the court.

2) You must not unlawfully possess a controlled substance.

1) You must not commit another federal, state or local crime.

A. MANDATORY CONDITIONS

The defendant shall report to the probation office in the district to which the defendant is

released within 72 hours of release from the custody of the Bureau of Prisons.

The defendant shall comply with all of the following conditions:

Upon release from imprisonment, the defendant shall be on supervised release for a term

of 3 years as to Count No. ls: 3 years as to Count No. 8s: and 3 years as to Count No. 9s, to

run concurrent with each other, for a total term of 3 years.

SUPERVISED RELEASE

19a

The determination of restitution is deferred until ______. An Amended Judgment in a

Criminal Case (AO 245C)

will be entered after such

determination.

The defendant must make restitution (including community restitution) to the

following payees in the amount listed below.



Restitution

$.00



Fine

$.00

CVB Processing Fee $30.00

Assessment

$300,000



TOTALS

The defendant must pay the total criminal monetary penalties under the schedule of

payments on Sheet 6.

CRIMINAL MONETARY PENALTIES

20a

$

$

***

0.00

Restitution Ordered

$.00

SCHEDULE OF PAYMENTS

Total Loss*

Priority or Percentage

A.



In full immediately; or

***

Payment of the total fine and other criminal monetary penalties shall be due as follows:

Payments shall be applied in the following order: (1) assessment, (2) restitution principal,

(3) restitution interest, (4) fine principal, (5) fine interest, (6) community restitution,

(7) penalties, and (8) costs, including cost of prosecution and court costs.

TOTALS

Name of Payee

If the defendant makes a partial payment, each payee shall receive an approximately

proportioned payment, unless specified otherwise in the priority order or percentage

payment column below. However, pursuant to 18 U.S.C. § 3664(i), all nonfederal victims

must be paid before the United States is paid.

21a

***

 NO RESTITUTION OR OTHER FINANCIAL PENALTY SHALL BE

COLLECTED THROUGH THE INMATE FINANCIAL RESPONSIBILITY

PROGRAM.

Unless the court expressly orders otherwise, if this judgment imposes a period of

imprisonment, payment of criminal monetary penalties shall be due during the period of

imprisonment. All criminal monetary penalties, except those payments made through the

Bureau of Prisons Inmate Financial Responsibility Program, are to be made to the Clerk of

the Court.

22a

23a

18 U.S.C. § 1961(1), (4)-(5)

§ 1961. Definitions

As used in this chapter—

(1) “racketeering activity” means (A) any act or

threat involving murder, kidnapping, gambling,

arson, robbery, bribery, extortion, dealing in obscene

matter, or dealing in a controlled substance or listed

chemical (as defined in section 102 of the Controlled

Substances Act), which is chargeable under State law

and punishable by imprisonment for more than one

year; (B) any act which is indictable under any of the

following provisions of title 18, United States Code:

Section 201 (relating to bribery), section 224 (relating

to sports bribery), sections 471, 472, and 473 (relating

to counterfeiting), section 659 (relating to theft from

interstate shipment) if the act indictable under

section 659 is felonious, section 664 (relating to

embezzlement from pension and welfare funds),

sections 891-894 (relating to extortionate credit

transactions), section 1028 (relating to fraud and

related activity in connection with identification

documents), section 1029 (relating to fraud and

related activity in connection with access devices),

section 1084 (relating to the transmission of gambling

information), section 1341 (relating to mail fraud),

section 1343 (relating to wire fraud), section 1344

(relating to financial institution fraud), section 1351

(relating to fraud in foreign labor contracting), section

1425 (relating to the procurement of citizenship or

nationalization unlawfully), section 1426 (relating to

the reproduction of naturalization or citizenship

papers), section 1427 (relating to the sale of

naturalization or citizenship papers), sections 14611465 (relating to obscene matter), section 1503

24a

(relating to obstruction of justice), section 1510

(relating to obstruction of criminal investigations),

section 1511 (relating to the obstruction of State or

local law enforcement), section 1512 (relating to

tampering with a witness, victim, or an informant),

section 1513 (relating to retaliating against a witness,

victim, or an informant), section 1542 (relating to

false statement in application and use of passport),

section 1543 (relating to forgery or false use of

passport), section 1544 (relating to misuse of

passport), section 1546 (relating to fraud and misuse

of visas, permits, and other documents), sections

1581-1592 (relating to peonage, slavery, and

trafficking in persons).,1 sections 1831 and 1832

(relating to economic espionage and theft of trade

secrets), section 1951 (relating to interference with

commerce, robbery, or extortion), section 1952

(relating to racketeering), section 1953 (relating to

interstate transportation of wagering paraphernalia),

section 1954 (relating to unlawful welfare fund

payments), section 1955 (relating to the prohibition of

illegal gambling businesses), section 1956 (relating to

the laundering of monetary instruments), section

1957 (relating to engaging in monetary transactions

in property derived from specified unlawful activity),

section 1958 (relating to use of interstate commerce

facilities in the commission of murder-for-hire),

section 1960 (relating to illegal money transmitters),

sections 2251, 2251A, 2252, and 2260 (relating to

sexual exploitation of children), sections 2312 and

2313 (relating to interstate transportation of stolen

motor vehicles), sections 2314 and 2315 (relating to

interstate transportation of stolen property), section

1

So in original.

25a

2318 (relating to trafficking in counterfeit labels for

phonorecords, computer programs or computer

program documentation or packaging and copies of

motion pictures or other audiovisual works), section

2319 (relating to criminal infringement of a

copyright), section 2319A (relating to unauthorized

fixation of and trafficking in sound recordings and

music videos of live musical performances), section

2320 (relating to trafficking in goods or services

bearing counterfeit marks), section 2321 (relating to

trafficking in certain motor vehicles or motor vehicle

parts), sections 2341-2346 (relating to trafficking in

contraband cigarettes), sections 2421-24 (relating to

white slave traffic), sections 175-178 (relating to

biological weapons), sections 229-229F (relating to

chemical weapons), section 831 (relating to nuclear

materials), (C) any act which is indictable under title

29, United States Code, section 186 (dealing with

restrictions on payments and loans to labor

organizations) or section 501(c) (relating to

embezzlement from union funds), (D) any offense

involving fraud connected with a case under title 11

(except a case under section 157 of this title), fraud in

the sale of securities, or the felonious manufacture,

importation, receiving, concealment, buying, selling,

or otherwise dealing in a controlled substance or

listed chemical (as defined in section 102 of the

Controlled Substances Act), punishable under any

law of the United States, (E) any act which is

indictable under the Currency and Foreign

Transactions Reporting Act, (F) any act which is

indictable under the Immigration and Nationality

Act, section 274 (relating to bringing in and harboring

certain aliens), section 277 (relating to aiding or

assisting certain aliens to enter the United States), or

26a

section 278 (relating to importation of alien for

immoral purpose) if the act indictable under such

section of such Act was committed for the purpose of

financial gain, or (G) any act that is indictable under

any provision listed in section 2332b(g)(5)(B);

***

(4) “enterprise”

includes

any

individual,

partnership, corporation, association, or other legal

entity, and any union or group of individuals

associated in fact although not a legal entity;

(5) “pattern of racketeering activity” requires at

least two acts of racketeering activity, one of which

occurred after the effective date of this chapter and

the last of which occurred within ten years (excluding

any period of imprisonment) after the commission of

a prior act of racketeering activity;

***

27a

18 U.S.C. § 1962

§ 1962. Prohibited activities

(a) It shall be unlawful for any person who has

received any income derived, directly or indirectly,

from a pattern of racketeering activity or through

collection of an unlawful debt in which such person

has participated as a principal within the meaning of

section 2, title 18, United States Code, to use or

invest, directly or indirectly, any part of such income,

or the proceeds of such income, in acquisition of any

interest in, or the establishment or operation of, any

enterprise which is engaged in, or the activities of

which affect, interstate or foreign commerce. A

purchase of securities on the open market for

purposes of investment, and without the intention of

controlling or participating in the control of the

issuer, or of assisting another to do so, shall not be

unlawful under this subsection if the securities of the

issuer held by the purchaser, the members of his

immediate family, and his or their accomplices in any

pattern or racketeering activity or the collection of an

unlawful debt after such purchase do not amount in

the aggregate to one percent of the outstanding

securities of any one class, and do not confer, either in

law or in fact, the power to elect one or more directors

of the issuer.

(b) It shall be unlawful for any person through a

pattern of racketeering activity or through collection

of an unlawful debt to acquire or maintain, directly or

indirectly, any interest in or control of any enterprise

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

interstate or foreign commerce.

(c) It shall be unlawful for any person employed by

or associated with any enterprise engaged in, or the

28a

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.

(d) It shall be unlawful for any person to conspire

to violate any of the provisions of subsection (a), (b),

or (c) of this section.

29a

Federal Rule of Criminal Procedure 8

Rule 8. Joinder of Offenses or Defendants

(a) JOINDER OF OFFENSES.

The indictment or

information may charge a defendant in separate

counts with 2 or more offenses if the offenses

charged—whether felonies or misdemeanors or

both—are of the same or similar character, or are

based on the same act or transaction, or are connected

with or constitute parts of a common scheme or plan.

(b) JOINDER OF DEFENDANTS. The indictment or

information may charge 2 or more defendants if they

are alleged to have participated in the same act or

transaction, or in the same series of acts or

transactions, constituting an offense or offenses. The

defendants may be charged in one or more counts

together or separately. All defendants need not be

charged in each count.