Petition for Writ of Certiorari — Cynthia Gilmore, Petitioner v. United States

Supreme Court briefJul 25, 2020

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No. ___

In the Supreme Court of the United States

CYNTHIA GILMORE, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Aaron E. Michel

Attorney for Petitioner

3736 Surry Ridge Court

Charlotte, NC 28210-6921

704-451-8351

QUESTION PRESENTED

Whether the sentencing court is required to use the reasonable doubt

standard to determine the predicate acts where the jury’s verdict was

purposefully ambiguous as to which acts supported the conspiracy

conviction?

TABLE OF CONTENTS

Page

Question Presented .......................................................................................... i

Table of Contents ............................................................................................ ii

Table of Authorities ....................................................................................... iii

Opinion Below .................................................................................................1

Statement of Jurisdiction .................................................................................1

Constitutional, Statutory Provisions ................................................................1

Statement of the Case ......................................................................................2

Reasons for Granting the Petition ....................................................................6

Conclusion .......................................................................................................8

Appendix A – Opinion by the United States Court of Appeals for the Fourth

Circuit Dated and Filed June 26, 2020 .......................................................... 1a

Appendix B – Constitutional, Statutory Provisions Involved ..................... 39a

iii

TABLE OF AUTHORITIES

Page

Cases

United States v. Cornell, 780 F.3d 616, 625 (4th Cir. 2015)............................3

United States v. McKinley, 995 F.2d 1020, 1026 (11th Cir. 1993) ..................7

United States v. Nguyen, 255 F.3d 1335 (11th Cir 2001) .................................7

United States v. Parris, 88 F.Supp.2d 555, 563 (4th Cir 2000) .......................6

Constitution

U.S. Const., Amend. V .......................................................................... passim

U.S. Const., Amend. VI ......................................................................... passim

Statutes

18:1962 .................................................................................................. passim

28:1254 ............................................................................................................1

In the Supreme Court of the United States

No. ______

CYNTHIA GILMORE

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Cynthia Gilmore respectfully petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals for the Fourth Circuit in

this case.

OPINIONS BELOW

The order of the court of appeals (App., infra, 1a-38a) is published.

JURISDICTION

The judgment of the court of appeals was entered on June 26, 2020.

The jurisdiction of this Court is invoked under 28 U.S.C. §1254(a).

CONSTITUTIONAL, STATUTORY PROVISIONS INVOLVED

The pertinent constitutional, statutory provisions and rules – U.S.

Const., Amendments V, VI – are set forth in the appendix. App., infra, 39a.

STATEMENT

Mrs. Gilmore was charged with participation in a conspiracy to conduct

the affairs of an enterprise known as MS-13 through a pattern of racketeering

activity. The government argued that she participated in a 2011 robbery by

Valentine, Jacobs, Cornelius and Lott and in a 2011 fraudulent tax return

scheme by Lewis and that she visited alleged enterprise leader Gutierrez in

prison on multiple occasions over several years and deposited a little over

$3,000 into his commissary during this period of time.

The horde of armed FBI agents invaded her home early one morning in

July 2017, when her two children were ready for the school bus and she was

finishing her shower and getting ready to go to work as a registered nurses

aid. She fainted when they informed her of the charge. The school bus passed

by as they were standing outside. No contraband or evidence related to the

alleged enterprise or acts of racketeering were found.

At the charge conference, Judge Whitney acknowledged receipt of

Mrs. Gilmore’s proposed jury instructions. (J.A. Vol. VII, p. 3441, 3563).

Mrs. Gilmore asked for a special verdict form where the jury would identify

the racketeering acts that form the basis for their verdict. (J.A. Vol. VII, p.

3442). Judge Whitney denied Mrs. Gilmore’s request for a special verdict.

(Id., p. 3442-43).

The Supreme Court has opined that an overt act is not an element of

RICO conspiracy, but unanimity by the jury on the type of racketeering is an

essential element of the crime. United States v. Cornell, 780 F.3d 616, 625

(4th Cir. 2015). The special verdict form has two parts for RICO conspiracy.

United States v. Cornell, 780 F.3d 616, 631 (4th Cir. 2015).

The district court first instructed the jury to answer Question

1(a), which asked whether they unanimously found the

identified defendant guilty of violating § 1962(d). Only if the

jury answered yes to Question 1(a), did it move on to Question

1(b). Under Question 1(b), the court instructed the jury to

indicate the type or types of racketeering acts that it

unanimously found were committed or intended to be

committed by some member of the conspiracy that the

defendant had joined. United States v. Cornell, 780 F.3d 616,

631 (4th Cir. 2015).

Regarding the instruction on the racketeering act of murder, Mrs.

Gilmore objected on the grounds that there was no evidence of murder to

support that instruction. (J.A. Vol. II, p. 3478-79). Mrs. Gilmore also

objected to treating felonious assault as the same as murder. (Id., p. 347980). The government conceded that felonious assault and extortion are not a

racketeering act and not alleged in the indictment. (J.A. Vol. II, p. 3482-83,

3483-84). Judge Whitney expressed consternation and disbelief detached

from both fact and law. (Id.).

Judge Whitney stated that evidence of puncture wounds on the chest

of an inmate is sufficient evidence of murder. (Id., p. 3480). Mrs. Gilmore

objected to the application of conspiracy liability where there was no

evidence of agreement to commit murder. (Id., p. 3481-82). Judge Whitney

wanted the jury to treat every prison fight as an attempted murder. Judge

Whitney even went so far as to say that alleged extortion is murder. (Id., p.

3483).

The government contended that what was a possible racketeering act

was wire fraud regarding the testimony that during a call it was allegedly

said by an unidentified person that someone would get hurt if money was not

sent for someone’s defense. (J.A. Vol. VII, p. 3484). Judge Whitney insisted

that this was a racketeering act of the threat of murder. (Id., p. 3484-85).

Trying to mitigate the damage Judge Whitney was obviously doing to the

government’s case with his baseless assertions of criminal liability, the

prosecutor conceded that the provisions in the indictment for racketeering

acts under South Carolina murder and robbery statutes were not applicable,

but similar provisions under North Carolina and New York murder law were

applicable. (J.A. Vol. VII, p. 3485-86).

Mrs. Gilmore objected to inclusion of fraud under Section 1028 and

bank fraud (§ 1344) relating to the alleged credit card fraud in Florida by a

co-defendant and alleged tax fraud in North Carolina by Margo Lewis. (Id.,

p. 3486-88). Judge Whitney insisted that these alleged acts of racketeering

could be both Section 1028 fraud and bank fraud. (Id., p. 3488). Ms. Lewis

testified that she would file false tax returns based on names, social security

numbers and dates of birth provided to her. (J.A. Vol. VI, p. 2632). She

plead guilty to conspiracy to defraud the United States by filing false tax

returns, in violation of 18 U.S.C. § 286. (Id.). United States v. Margo Lewis,

No. 5:12-CR-206 EDNC ECF No. 19 (1/31/2013). Section 286 is not

Section 1028 nor Section 1344 and Section 286 is not listed in 18 U.S.C. §

1961(1) as an offense defined as a racketeering act. Judge Whitney had a

stubborn refusal to consider the merits of this issue.

Mrs. Gilmore also objected to consideration of obstruction of justice

and tampering with a witness as an act of racketeering. (J.A. Vol. VII, p.

3488). The government offered no specific incident for which the jury could

consider Mrs. Gilmore liable for obstruction of justice or tampering with a

witness. (J.A. Vol. VII, p. 3488-90). Judge Whitney overruled Mrs.

Gilmore’s objection. (Id.). The jury returned a general verdict of guilty.

The District Court refused to apply the beyond a reasonable doubt

standard in determining the facts relied upon to apply the cross-over in the

guidelines for robbery. The Court of Appeals affirmed.

REASONS FOR GRANTING THE PETITION

The Eleventh Circuit would either have a single type of racket

indictment, or a special verdict, or proof beyond a reasonable doubt at

sentencing in establishing the type of racket for the offense of conviction.

The Fourth Circuit does not. Unlike other RICO conspiracy cases where

defendants are charged with violating multiple federal crimes, Mrs. Gilmore

was only charged and tried on one count of RICO conspiracy. In this case

the District Court declined to give the jury special jury instructions which

would have allowed the jury to mark which of the enumerated predicate

RICO acts they found beyond a reasonable doubt.

The jury was given a general verdict form. As a result, there was no

indication which two predicate acts the jurors believed supported their guilty

jury verdict regarded the RICO conspiracy. (JA 3442-43). According to

United States v. Parris, 88 F.Supp.2d 555, 563 (4th Cir 2000), if “a

defendant is convicted of a multiple conspiracy in a general verdict, the

proper procedure for determining which objects of the conspiracy must be

considered for sentencing is found in the Guidelines.” In a situation like this

“where the jury does not specify which objects it found, the Guidelines

require ‘the court, sitting as a trier of fact’ to determine whether it ‘would

convict the defendant of conspiring to commit that object offense.’” Id. at

564 (quoting U.S.S.G. § 1B1.2 application note 5). Furthermore, “[i]n doing

so the trial judge must independently determine whether each object was

proved beyond a reasonable doubt.” Id.

The Court in Parris referenced United States v. McKinley, 995 F.2d

1020, 1026 (11th Cir. 1993) which applied this beyond a reasonable doubt

standard to ambiguous jury verdicts regarding offenses that are objects of the

conspiracies. In fact, this “McKinley rule” was used in United States v.

Nguyen, 255 F.3d 1335 (11th Cir 2001) which was analogous to this case. In

Nguyen, the defendants in that case were convicted of RICO conspiracy.

Regarding the verdict form, The Court said, “the jury was not instructed...to

find which predicate acts each defendant had agreed to commit or which acts

each defendant knew and intended would be committed as a pattern of

racketeering activity. Because the jury was not specifically polled on the

predicate acts underlying the RICO conspiracy count, the jury’s verdict was

necessarily ambiguous as to which predicate acts supported the guilty

verdicts on the conspiracy count. The court was therefore required to

determine the predicate acts underlying each defendant’s conspiracy

conviction using the reasonable doubt standard. Id. at 1342.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

July 2020

/s/ Aaron E. Michel

Aaron E. Michel

Attorney for Petitioner Mrs. Gilmore

3736 Surry Ridge Court

Charlotte, NC 28210-6921

704-451-8351

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PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 18-4656

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

PEDRO GUTIERREZ, a/k/a Magoo, a/k/a Light, a/k/a Inferno,

Defendant – Appellant.

No. 18-4665

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

JAMES BAXTON, a/k/a Grown, a/k/a Frank White,

Defendant – Appellant.

No. 18-4855

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UNITED STATES OF AMERICA,

Plaintiff – Appellee,

CYNTHIA GILMORE, a/k/a Lady Bynt, a/k/a Cynthia Young,

Defendant – Appellant.

Appeals from the United States District Court for the Western District of North Carolina,

at Charlotte. Frank D. Whitney, Chief District Court Judge. (3:17-cr-00134-FDW-DSC21; 3:17-cr-00134-FDW-DSC-5; 3:17-cr-00134-FDW-DSC-19)

Submitted: March 26, 2020

Decided: June 26, 2020

Before WILKINSON, AGEE, and THACKER, Circuit Judges.

Affirmed by published opinion. Judge Agee wrote the opinion, in which Judge Wilkinson

and Judge Thacker joined.

Jorgelina E. Araneda, ARANEDA LAW FIRM, Raleigh, North Carolina, for Appellant

Pedro Gutierrez. Matthew C. Joseph, LAW OFFICE OF NORMAN BUTLER, Charlotte,

North Carolina, for Appellant James Baxton. Aaron E. Michel, Charlotte, North Carolina,

for Appellant Cynthia Gilmore. R. Andrew Murray, United States Attorney, Charlotte,

North Carolina, Amy E. Ray, Assistant United States Attorney, OFFICE OF THE UNITED

STATES ATTORNEY, Asheville, North Carolina, for Appellee.

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AGEE, Circuit Judge:

Pedro Gutierrez, James Baxton, and Cynthia Gilmore (collectively “Appellants”)

appeal various rulings of the district court following their convictions and sentences.

Finding no reversible error, we affirm.

Appellants are members of United Blood Nation (“UBN”), an east coast gang that

is governed by a common set of rules, has a strict hierarchical structure, and is composed

of tightly controlled sets. The relevant set here is the Nine Trey Gangsters, of which

Gutierrez is the leader, or “godfather.” He is also the chair of the UBN council, which the

Government described as “the governing body of all Bloods on the East Coast.” 1 J.A. 1503.

Immediately below Gutierrez in the Nine Trey’s leadership hierarchy is Baxton. During

the relevant time period, Gutierrez and Baxton were incarcerated in the New York

Department of Corrections.

During the same period, Gilmore had a leadership role with a Nine Trey set in North

Carolina and served as a liaison between Gutierrez and UBN members in North Carolina

for the direction and guidance of UBN gang activities.

As the Government summarized Gutierrez’s position at trial, “[i]n the Bloods

organization no one is above him. No one is more powerful than him. [H]e’s the CEO of

the Bloods.” J.A. 1503.

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In March 2018, a federal grand jury in the Western District of North Carolina

indicted Appellants and eighty other UBN members on various charges including

conspiracy to engage in a pattern of racketeering activities, in violation of the Racketeer

Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(d). 2 The

racketeering activities described in the indictment were numerous, including multiple acts

involving murder and robbery, use or carry of a firearm during and in relation to a crime

of violence, assault with a dangerous weapon, possession with the intent to distribute illegal

narcotics, possession of a firearm by convicted felons, wire fraud, identity theft, and bank

fraud.

As leaders of UBN, Appellants ordered, guided, or actively participated in these

racketeering activities. For instance, Gutierrez ordered the Nine Trey to engage in an “all

out war” against a North Carolina gang, Pretty Tony, and directed Nine Trey members to

kill Pretty Tony members who did not join the Nine Trey. J.A. 2123. Gutierrez’s order led

to numerous fights and stabbings in prisons, causing five prisons to go on lockdown, as

well as shootings outside of prison. Similarly, Baxton ordered the Nine Trey to attack

Jarrod Hewer, the godfather of another UBN set, for plotting to remove Gutierrez from his

UBN leadership position. As a result, Hewer was attacked and stabbed several times by

UBN members while incarcerated. For her part, Gilmore provided funds necessary to

Seventy-two indictees pleaded guilty; four were found guilty after a separate jury

trial from the Appellants’ trial; and one was found guilty in a separate bench trial. Of the

remaining three, the Government moved to dismiss the indictments for two individuals,

and one remains a fugitive.

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facilitate these criminal activities by engaging in tax fraud. She gave stolen personal

information to Margo Lewis and had her file fraudulent tax returns using that information.

Lewis then directed tax refunds generated by those fraudulent returns to be deposited into

a bank account of Gilmore’s choice.

Appellants proceeded to a jury trial and were all found guilty of the RICO

conspiracy. Following the jury’s verdict, the district court sentenced Gutierrez and Baxton

to 240 months’ imprisonment and Gilmore to 228 months’ imprisonment.

Appellants timely appeal their convictions and sentences. We have jurisdiction

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

II.

Appellants raise numerous issues on appeal, and we address each argument in turn.

First, Appellants challenge the district court’s decision to empanel an anonymous

jury. A month prior to the start of trial, the Government moved to empanel an anonymous

jury, citing the danger UBN could pose to the jury and the high media attention to this case.

The Government highlighted that UBN obstructed justice in another UBN prosecution by

abducting a prosecutor’s father and killing a witness and his wife. Appellants opposed the

motion, contending that their circumstances were indistinguishable from other criminal

defendants who were tried with a regular jury and that they specifically did not pose any

threats to jurors in this case. The district court disagreed, granted the Government’s motion,

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and ordered the names of the jurors could be given only to Appellants’ counsel, who were

prohibited from revealing those names to their clients and others. The court explained that

“for purposes of security, [the court] ha[d] to err on the side of caution,” and it “need[ed]

to take reasonable security methods, and . . . make sure there’s reasonable safeguards as to

the prejudice against the defendant.” J.A. 1455.

On appeal, Appellants argue that the district court erred because they did not pose

any threats to jurors and its decision prejudiced the jury against them. As a result, they

assert they were deprived of a fair trial by an impartial jury.

We review the district court’s decision to empanel an anonymous jury “under a

deferential abuse-of-discretion standard,” United States v. Dinkins, 691 F.3d 358, 371 (4th

Cir. 2012), and hold that the district court did not abuse its discretion in this case.

Although “[t]he decision to empanel an anonymous jury and to withhold from the parties

biographical information about the venire members is, in any case, an unusual measure,”

“[a] federal district court may empanel an anonymous jury in any non-capital case in which

the interests of justice so require.” Id. at 372 (internal quotation marks omitted). An

anonymous jury is warranted if two conditions are present: “(1) there is strong reason to

conclude that the jury needs protection from interference or harm, or that the integrity of

the jury’s function will be compromised absent anonymity; and (2) reasonable safeguards

have been adopted to minimize the risk that the rights of the accused will be infringed.” Id.

The district court found both conditions existed here, and we agree.

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Courts may assess whether “strong reasons” for an anonymous jury exist by

considering the five Ross 3 factors:

(1) the defendant’s involvement in organized crime, (2) the defendant’s

participation in a group with the capacity to harm jurors, (3) the defendant’s

past attempts to interfere with the judicial process, (4) the potential that, if

convicted, the defendant will suffer a lengthy incarceration and substantial

monetary penalties, and (5) extensive publicity that could enhance the

possibility that jurors’ names would become public and expose them to

intimidation or harassment.

Id. at 373 (quoting Ross, 33 F.3d at 1520). “[T]he presence of any one factor or set of

factors [does not] automatically compel a court to empanel an anonymous jury” because

the list of factors is only “instructive” and not “exhaustive.” Id.

In considering the Ross factors, “a district court must always engage in a contextspecific inquiry based upon the facts of the particular case before the court.” Id. In noncapital cases like this one, the district court’s findings “need not have been based on

evidence already in the record at the time the decision was made, and may be upheld on

appeal in light of the evidence ultimately presented at trial. However, [the findings] must

rest on something more than speculation or inferences of potential risk.” Id. at 374 (internal

citations omitted).

The factors are attributed to United States v. Ross, 33 F.3d 1507 (11th Cir. 1994),

in which the Eleventh Circuit instructed its courts to consider “several factors,” including

these five factors, in finding sufficient reason for empaneling an anonymous jury. Id. at

1520. We used the Ross factors in Dinkins “because they are drawn from significant

judicial experience addressing the propriety of decisions whether to order anonymous

juries.” Dinkins, 691 F.3d at 373.

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In this case, the district court held that the Ross factors indicated strong reasons for

an anonymous jury. We agree. The facts here are substantially similar to those of Dinkins

and United States v. Mathis, 932 F.3d 242 (4th Cir. 2019), where we concluded that the

Ross factors supported empaneling an anonymous jury. Dinkins involved defendants who

were members of a drug organization that had committed shootings and murders. We held

that by “virtue of their association with” the organization, the defendants “belonged to a

group involved in organized criminal activity,” and that organization “had the capacity to

harm jurors” because “other members of the group, who were not in jail, remained capable

for interfering with the judicial process.” 692 F.3d at 375. Furthermore, “the defendants

previously had engaged in attempts to interfere with the judicial process,” and were

currently “charged with murdering government informants and witnesses.” Id. at 375–76.

Moreover, there was “evidence of similar uncharged conduct.” Id. at 375. Given their

criminal conduct, the defendants faced “a potential death sentence or a term of life

imprisonment,” which gave them an incentive “to resort to extreme measures in any effort

to influence the outcome of their trial.” Id. at 376 (internal quotation marks omitted). After

discussing these factors, the Dinkins court did not address the last Ross factor—whether

the defendants’ trial would result in extensive publicity—because the record did not

indicate whether that had occurred or would likely occur. Id. Accordingly, we found strong

reasons for seating an anonymous jury based on the four applicable Ross factors.

Similar to Dinkins, Mathis involved defendants who were gang members and

presented circumstances that satisfied at least three Ross factors, which we held were

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sufficient to empanel an anonymous jury. 932 F.3d at 252–54. There, the defendants were

“members of a violent street gang and were involved in a number of violent criminal

offenses, including witness tampering by murder,” had “associates who were not

incarcerated and could intimidate or harm the jurors,” and, if convicted, would receive

“lengthy incarceration and substantial penalties that may have induced them to intimidate

the jury.” Id. at 253.

As in Mathis and Dinkins, this case involves strong reasons supporting an

anonymous jury. Appellants are leaders of UBN and had individually and corporately

committed numerous violent crimes listed in the indictment. UBN has members who are

not incarcerated and are capable of harming jurors, as demonstrated by their murder of a

government witness and his wife in another North Carolina UBN case. Furthermore,

Baxton attempted to interfere with the judicial process by directing a UBN member to make

false statements to law enforcement. As a result of the crimes charged, Appellants faced

lengthy incarceration of up to 20 years’ imprisonment and substantial monetary penalties.

Based on these facts, we conclude that the Ross factors weighed in favor of an anonymous

jury and that the district court acted properly in seating such a jury.

After finding the first condition for seating an anonymous jury was satisfied, we

turn to the second condition—that is, whether “reasonable safeguards have been adopted

to minimize the risk that the rights of the accused will be infringed.” Dinkins, 691 F.3d at

372. We hold that this condition was also satisfied, as the district court properly adopted

appropriate reasonable safeguards by instructing the venire as follows:

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10a

We want to ensure that you will remain anonymous so you will not be

contacted by anyone in the media and ensure that no outside information is

communicated to any juror throughout the jury selection process and the trial.

This is so that each side can have a fair and impartial trial. The fact that we

are identifying you by number should have no impact at all on the

presumption of innocence that the defendants are entitled to or any impact in

any other way as you consider and decide the case if you were selected on

the jury.

J.A. 1456. By providing this instruction, the district court gave the jury “a neutral nonprejudicial reason for empaneling an anonymous jury.” United States v. Hager, 721 F.3d

167, 188 (4th Cir. 2013). And we have approved a similar measure in Hager, 721 F.3d at

188–89, as “the generally accepted practice for minimizing prejudice, which is to downplay

(not accentuate) the significance of the juror anonymity procedure.” Dinkins, 691 F.3d at

379 (internal quotation marks omitted). “[B]ecause the district court properly instructed

the jury on the presumption of innocence,” “any remote possibility of harm was mitigated

further.” Id. Accordingly, we hold that the two necessary conditions for empaneling an

anonymous jury—protecting the jury from harm and minimizing prejudice to the

accused—were satisfied.

Nonetheless, Appellants argue that empaneling an anonymous jury prejudiced them

and, in support, point to the jury’s inquiry to the district court on the second day of trial.

That day, the jury asked the district judge, “[w]ould it be possible to speak with the Judge

or a member of the safety security regarding an area of concern for jurors’ safety?” J.A.

4939. The jurors’ parking arrangement during trial gave rise to this concern, as they parked

across the street from the courthouse during the trial. While jurors crossed the street,

Appellants’ family members or gang members could see their license plates or follow them.

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11a

However, the jury raised this issue only after they began hearing the evidence and learning

the nature of the charges and the identity of Appellants, not before they were empaneled as

an anonymous jury. The timing of this concern shows that it bears no relation to the

functioning of an anonymous jury, and Appellants do not provide any evidence to show

otherwise. “Without any evidence to the contrary, we must assume that the jury followed

the instructions [on the presumption of innocence] given to it by the court.” Hager, 721

F.3d at 189. Therefore, we find Appellants’ argument without merit.

Next, Appellants challenge the district judge’s decision not to recuse himself from

presiding over this case. The day before jury selection began, Gilmore moved to recuse

District Judge Frank D. Whitney, citing to the judge’s recusal in an earlier trial of another

UBN member. In that case, Judge Whitney’s picture was found in a defendant’s cell,

leading him to recuse in that case. Gilmore argued that Judge Whitney should do the same

here because recusing himself from one UBN trial and not from the other would be

“inconsistent.” J.A. 1464. The district court disagreed, holding that in the prior case:

an indicted defendant’s cell was searched by the FBI, and there was a picture

of . . . me.

So my picture is found in a cell of a named defendant. I think that’s - there’s nothing like that in this case, absolutely nothing. I’ve had no threats

or anything that I’m aware of that have any impact on my ability to adjudicate

this case.

J.A. 1464–65. Furthermore, the court expressed being “nervous about recusing in that case

because I knew it could create this very precedent that I’m going to -- you can get rid of

me by getting my picture,” which, in turn, would encourage “[j]udge shopping.” J.A. 1466.

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12a

The district court followed up with a written order, reiterating the grounds not to

recuse. The court explained that Gilmore’s case was distinguishable from the previous

UBN case because the judge did not face any similar threats from Appellants, the link

between this case and the previous case was attenuated, no basis for questioning his

impartiality existed, and recusal would inappropriately encourage judge shopping.

On appeal, Appellants argue that the district judge’s decision not to rescue himself

was error, asserting that the judge’s decision would confuse the public and presents

grounds to question his mental state. Reviewing the recusal decision for abuse of discretion,

United States v. Stone, 866 F.3d 219, 229 (4th Cir. 2017), we find none. Appellants do not

provide any basis for us to find the risk of confusing the public or to question the district

judge’s impartiality and mental state, except that he recused himself from an earlier trial of

another UBN member unrelated to the case at bar. But as the judge properly noted, that

case is distinguishable from Appellants’ case because his photo was found in the

defendant’s cell, and there is no comparable evidence here. We therefore conclude that the

district court did not abuse its discretion in denying recusal.

Appellants also assign error to several aspects of the jury selection process. “We

review the district court’s decisions to seat these jurors for abuse of discretion, and we will

find abuse only where a per se rule of disqualification applies or where the trial court

demonstrated a clear disregard for the actual bias of the juror.” United States v. Umana,

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750 F.3d 320, 338 (4th Cir. 2014) (internal citation, quotation marks, and alterations

omitted). Finding no abuse here, we affirm the district court’s decisions.

Initially, Appellants contend the district court abused its discretion by permitting

the Government to use the term “gang” 4 in describing UBN to prospective jurors, which

unfairly prejudiced the venire against them. But they fail to provide any controlling legal

authority that prohibits the use of this term. On the contrary, we have used the term “gang”

in similar prior decisions involving UBN. See United States v. Melton, 761 F. App’x 171,

172 (4th Cir. 2019) (defining UBN as “an east coast gang”); United States v. Brown, 610

F. App’x 236, 237 (4th Cir. 2015) (labeling UBN a “gang”). Not only is use of the term

“gang” factually accurate and supported by the record, but in the RICO context, that usage

effectively translates the RICO statutory language into terms a non-lawyer jury can readily

comprehend. United States v. Rios, 830 F.3d 403, 423 n.7 (6th Cir. 2016) (holding that in

a RICO conspiracy trial, “use of the term ‘gang’ to describe the Latin Kings and the

Holland Latin Kings was appropriate as the existence of the enterprise and conspiracy was

very much at issue. At a minimum, it was not an abuse of discretion to allow the term to

be used.”). Thus, we do not find any abuse of discretion in permitting the use of the term

“gang.”

Counsel for Gutierrez and Gilmore objected to this term in the district court, but

their objection was overruled because Appellants were “admitted gang members.” J.A.

4790.

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Next, Gilmore points to a jury administrator’s misidentification of two jurors that

occurred during the jury selection process. After fifteen jurors were seated, the district court

and the parties realized that the jury administrator had mistakenly switched the juror

questionnaires of Jurors 33 and 168, identifying the questionnaire of Juror 168 as that of

Juror 33 and vice versa. As a result, defense counsel used the questionnaire of Juror 168 to

strike Juror 33. However, this mistake did not affect any jurors other than Jurors 33 and

168.

Gilmore, later joined by Baxton and Gutierrez, argued that this mistake warranted a

mistrial, asserting that they would not have stricken Juror 33 based on that juror’s actual

responses to the questionnaire. The district court denied the motion, holding that any error

was harmless given that the decision not to seat one juror was not “outcome determinative,”

and Appellants’ argument was speculative. J.A. 4883.

On appeal, Gilmore asserts that the district court abused its discretion by not

declaring a mistrial and restarting the jury selection because she could not verify that only

two jurors had mismatching juror questionnaires, and this mistake tainted the entire process.

That argument is contradicted by the record, which shows that after learning of the mistake,

the district court promptly corrected it, informed the jurors of what occurred, and verified

with each one, including Juror 168, that their juror questionnaires were correctly numbered.

This verification process took place in the presence of Appellants’ counsel, which assured

them that no other mistake had occurred. Moreover, the court cured any prejudice that

might have transpired from this mistake by removing one preemptory strike from the

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Government. 5 It also granted Appellants an additional preemptory strike and allowed them

to use it against any of the jurors including those already seated. The district court thus did

not abuse its discretion regarding the juror questionnaires.

Appellants also challenge the Government’s preemptory strike of Juror 105, who

indicated on the juror questionnaire that he had “an unpleasant or bad encounter with a law

enforcement officer” because he had been detained and “asked repeatedly if [he] had

weapons.” J.A. 4822. Gilmore objected to striking Juror 105, but the district court

overruled the objection, finding a legitimate reason for the strike. Although Appellants

argue on appeal that this ruling shows the district court’s bias in favor of the Government,

there is no record evidence to support that claim. We have held that the Government may

strike a potential juror based on his “dissatisfact[ory] [experience] with the police,” United

States v. Campbell, 980 F.2d 245, 249 (4th Cir. 1992), because that experience

demonstrates “bias [against] law enforcement officials,” which is “inappropriate,” United

States v. Lancaster, 96 F.3d 734, 743 (4th Cir. 1996).

The district court and the parties considered bringing back Juror 33 to the jury pool,

which would have delayed the jury selection process. The Government asserted that

measure was not necessary because if Appellants had not stricken Juror 33, it would have

used a preemptory strike and stricken the juror based on the correct juror questionnaire.

Assuming this had occurred, the Government agreed to relinquish one preemptory strike.

The district court accepted the Government’s concession and decided not to bring back

Juror 33.

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Lastly, Appellants argue the district court abused its discretion in granting the

Government’s motion to strike Juror 165 but denying the motion to strike Juror 131. The

district court found cause to strike Juror 165 because she did not truthfully disclose her

negative experience with law enforcement in her juror questionnaire and then told the court

that the justice system “doesn’t work.” J.A. 4858–59. In contrast, the court did not find

cause to strike Juror 131 because although he “had some problems with the system, [he]

then made it clear that [he] can follow the law.” J.A. 4860. Juror 131 agreed that “the

system worked,” and did not think “that the system is not fair to some kinds of people in

particular.” J.A. 4861. Thus, Juror 131’s opinion of the criminal justice system differed

substantially from that of Juror 165.

“The trial judge is in the best position to make judgments about the impartiality and

credibility of potential jurors based on the judge’s own evaluations of demeanor evidence

and of responses to questions.” United States v. Barber, 80 F.3d 964, 967 (4th Cir. 1996)

(internal quotation marks omitted). As a district judge “is in the best position to make this

determination, the inquiry [into a potential juror’s bias] is committed to his discretion,

including ample leeway to formulate the questions to be asked.” United States v. Smith,

919 F.3d 825, 834 (4th Cir. 2019). “Just as the trial judge has latitude in framing the inquiry,

so too does he have broad discretion in evaluating the significance of potential juror bias.”

Id. at 835.

Under this deferential standard of review, we hold that the district court did not

abuse its discretion by inquiring into any potential bias of Jurors 131 and 165 or deciding

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on the motions to strike them. By inquiring of the potential jurors about their experience

with law enforcement and their views on the criminal justice system, the district court was

simply “prob[ing] the prospective jurors for bias and partiality,” Lancaster, 96 F.3d at 742,

and gauging whether they “would be unable to faithfully and impartially apply the law,”

Wainwright v. Witt, 469 U.S. 412, 426 (1985).

Based on the potential jurors’ responses to its questions, the district court granted

the motion to strike Juror 165 because her bias against the criminal justice system

“suggested [she] could not be fair and impartial.” Smith, 919 F.3d at 835. This decision

shows that the court “made reasoned judgments in walking the line between detecting bias

and creating bias. And we are not here to micro-manage those considered choices.” Id. at

834. Accordingly, we hold that the district court did not abuse its discretion in deciding not

to seat Juror165 and to seat Juror 131.

Next, Gilmore challenges the denial of her motion to suppress her cellphone and its

contents. We review the district court’s “legal determinations de novo and factual findings

for clear error. Where, as here, the government prevailed below, we construe the evidence

in the light most favorable to the government.” United States v. Montieth, 662 F.3d 660,

664 (4th Cir. 2011) (internal citation and quotation marks omitted).

In the early morning of August 10, 2011, three UBN members invaded a home in

Raleigh, NC, and shot one person. When the police responded to the shooting, UBN

member Hakim Jacobs fled on foot and contacted Gilmore. Although she did not

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participate in the actual robbery, Gilmore picked up Jacobs in her car. As they drove away,

two Raleigh Police Department officers, Ross Weatherspoon and Brandon Johnson,

stopped Gilmore’s car and noticed Jacobs in the back seat. Gilmore and Jacobs were

detained for further investigation, and Gilmore’s cellphone was seized.

Before trial, Gilmore moved to suppress the phone and its contents. She argued that

the police did not have reasonable suspicion to stop her and that the cellphone did not

belong to her. A magistrate judge conducted a suppression hearing at which Officer

Weatherspoon testified that he received a radio transmission about the home invasion at

approximately 4:00 a.m. and was given the description of Jacobs, who had fled on foot. To

locate Jacobs, Weatherspoon and Johnson stood on the side of the access roadway to the

neighborhood to check vehicles entering or leaving. The officers spotted Gilmore’s vehicle

as it attempted to exit the neighborhood. Gilmore’s car was the sole vehicle on the road,

and Weatherspoon had not observed any other cars leaving or entering the neighborhood

since setting up the perimeter checkpoint.

Johnson approached the driver’s side of Gilmore’s vehicle and Weatherspoon

approached the passenger side. Weatherspoon saw “a black mass in the back seat of the

vehicle that [he] later identified to be a person,” which “alerted [his] suspicion,” because

“[t]he person who was hiding in the backseat matched the description of the person who

fled.” J.A. 1137–38. The person hiding in the backseat was in fact Jacobs, who the officers

noticed “was nervous,” “was sweating profusely from his forehead at the time,” and “was

breathing heavily.” J.A. 1138.

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Johnson testified that the officers detained Jacobs and Gilmore for transport to the

police station for further investigation. As standard procedure before transport, the officers

removed all items from Gilmore, including her cellphone. But at the suppression hearing,

the officers could not specifically recall seizing the cellphone because six years had passed

since the seizure. Thus, the Government provided the testimony of other witnesses to

document the seizure and demonstrate Gilmore’s ownership of the phone. FBI Agent

Pupillo testified that Gilmore’s cellphone was transferred to FBI custody, and a search

warrant was executed on that phone. The subsequent examination of the phone “revealed

a connection to the email address ‘cynthiagilmore75’ as well as other self-identifying

information relating to [Gilmore.]” J.A. 1186. Gilmore never reclaimed the phone.

Based on the evidence presented, the magistrate judge recommended denying

Gilmore’s motion to suppress because Weatherspoon and Johnson had reasonable

suspicion to stop her vehicle, had probable cause to arrest her, and lawfully seized her

cellphone incident to the arrest. Gilmore objected to the report and recommendation, but

the district court overruled her objection and adopted it. On appeal, Gilmore contends that

the stop of her vehicle was illegal and no evidence shows her ownership of the cellphone.

We disagree.

Under Fourth Amendment caselaw, “an officer may conduct a brief

investigatory stop where the officer has reasonable suspicion that criminal activity may be

afoot.” United States v. Perkins, 363 F.3d 317, 321 (4th Cir. 2004). We assess the validity

of a stop based on “the totality of the circumstances” and “give due weight to common

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sense judgments reached by officers in light of their experience and training.” Id. Here, the

totality of the circumstances supports the officers’ reasonable suspicion to stop Gilmore’s

vehicle. Approximately twenty minutes after Jacobs fled on foot, the police noticed

Gilmore driving away from the neighborhood where the robbery occurred. At the time of

the stop, Gilmore’s car was the only car on the road. Once the stop lawfully took place, the

officers immediately noticed Jacobs in the back seat of Gilmore’s car and realized that he

was the fleeing suspect. This gave the officers probable cause to arrest Gilmore and Jacobs.

See United States v. Johnson, 599 F.3d 339, 346 (4th Cir. 2010) (holding a warrantless

arrest is permissible if “there is probable cause to believe that a criminal offense has been

or is being committed. . . . [P]robable cause exists when, at the time the arrest occurs, the

facts and circumstances within the officer’s knowledge would warrant the belief of a

prudent person that the arrestee had committed or was committing an offense.” (internal

citation omitted)).

After the officers arrested Gilmore, they properly searched her and seized the

cellphone incident to her arrest. This seizure was lawful under the Fourth Amendment,

which “permits warrantless searches incident to custodial arrests.” United States v.

Edwards, 415 U.S. 800, 802 (1974). “Nor is there any doubt that clothing or other

belongings may be seized upon arrival of the accused at the place of detention and later

subjected to laboratory analysis or that the test results are admissible at trial.” Id. at 803–

04.

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Despite this straightforward application of Fourth Amendment principles, Gilmore

argues that the cellphone and its contents were inappropriately admitted into evidence

because there was insufficient evidence to authenticate it as hers. The record shows

otherwise. Under Rule 901(a) of the Federal Rules of Evidence, “[t]o satisfy the

requirement of authenticating or identifying an item of evidence, the proponent must

produce evidence sufficient to support a finding that the item is what the proponent claims

it is.” “The factual determination of whether evidence is that which the proponent claims

is ultimately reserved for the jury. . . . [And] [t]he burden to authenticate under Rule 901 is

not high—only a prima facie showing is required.” United States v. Vidacak, 553 F.3d 344,

349 (4th Cir. 2009). Here, the Government made the required prima facie showing.

Detective Eric Gibney, who investigated the home invasion and shooting, interviewed

Gilmore during the investigation and identified the cellphone during the suppression

hearing. Gibney testified that he contemporaneously placed a yellow sticky note with

Gilmore’s name on her cellphone and that the Government’s picture of the cellphone was

accurate. In addition, Detective Michael Sardelis, who examined the cellphone, stated that

the phone was registered with the email account Cynthiayounggilmore@yahoo.com,

multiple messages called the owner “Cynt,” and the owner of the phone’s birthdate

matched that of Gilmore. Given this evidence, we hold that the Government properly

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authenticated the phone and its contents, and the district court did not err in admitting them

into evidence. The district court thus properly denied Gilmore’s motion to suppress. 6

Appellants argue the evidence was insufficient to support the jury’s finding that they

were each guilty of conspiracy to participate in a racketeering enterprise, in violation of 18

U.S.C. § 1962(d). To convict, the Government had to prove:

that an enterprise affecting interstate commerce existed; that each defendant

knowingly and intentionally agreed with another person to conduct or

participate in the affairs of the enterprise; and that each defendant knowingly

and willfully agreed that he or some other member of the conspiracy would

commit at least two racketeering acts.

United States v. Mouzone, 687 F.3d 207, 218 (4th Cir. 2012) (internal quotation marks and

alteration omitted). We must sustain a jury verdict “when there is substantial evidence,

construed in the light most favorable to the government, supporting the verdict.” Mathis,

932 F.3d at 258.

In addition, Gilmore challenges two evidentiary rulings, which we review for

abuse of discretion. United States v. Hassan, 742 F.3d 104, 130 (4th Cir. 2014). She first

argues that the court erroneously excluded the 22-year-old misdemeanor criminal record

(as a minor) of an FBI agent who testified for the Government. We disagree. The record

was not admissible under Rule 609(b) of the Federal Rules of Evidence because “more

than 10 years ha[d] passed since the witness’s conviction” and its probative value did not

substantially outweigh its prejudicial effect. Fed. R. Evid. 609(b).

Next, Gilmore argues that Crawford v. Washington, 541 U.S. 36 (2004), barred the

admission of various witnesses’ testimony, documents, and emails because they contain

hearsay information. We have reviewed the record and hold that Crawford does not apply

here because none of the challenged evidence is testimonial. Whorton v. Bockting, 549 U.S.

406, 420 (2007) (“Under Crawford, . . . the Confrontation Clause has no application to

[nontestimonial out-of-court] statements and therefore permits their admission even if they

lack indicia of reliability.”). Accordingly, the district court did not abuse its discretion in

rejecting Gilmore’s Crawford argument.

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At trial, the Government presented numerous former and current UBN members

who testified as to Appellants’ leadership authority in UBN and directives to them to

engage in criminal racketeering activities. The Government also submitted the call records

and text messages between Appellants and other UBN members showing Appellants’

threats, warnings, and directives, as well as evidence of criminal activities, such as gang

dues derived from drug trafficking and paid into Gutierrez’s and Baxton’s prison

commissary accounts.

On appeal, Appellants challenge an extensive list of the foregoing evidence

presented during trial. In essence, they argue either that the evidence did not connect them

directly to the criminal activities committed by other UBN members or that they simply

did not direct or participate in the alleged criminal activities, including murder, drug

trafficking, tax and wire fraud, and robbery. The record does not bear out Appellants’

claims.

As the party “challenging on appeal the sufficiency of the evidence,” Appellants

“bear[] a ‘heavy burden,’ and must show that a rational trier of fact could not have found

the essential elements of the crime beyond a reasonable doubt. A conviction will be

reversed for insufficient evidence only in the rare case when ‘the prosecution’s failure is

clear.’” United States v. Hamilton, 699 F.3d 356, 361–62 (4th Cir. 2012) (internal citations

omitted).

Appellants fail to meet their heavy burden because their argument does not show a

clear prosecutorial failure, but mere disagreement with the jury’s findings. “[A]ny recalling

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of the facts by [Appellants] or any inferences drawn from the evidence or suggestions of

inferences by [Appellants] were not binding upon the jury” because “the jury was the final

arbiter of the facts.” United States v. Browning, 390 F.2d 511, 514 (4th Cir. 1968) (internal

quotation marks omitted). As the record shows substantial evidence supporting the jury

verdict, we discern no error in the sufficiency of the evidence.

Appellants also contend the district court erred in not issuing a special jury verdict

form that would require the jury to indicate specific racketeering activities each Appellant

conspired to commit. As the district court explained when denying the request, this form

would have required “enumerat[ing] . . . 50 racketeering predicate acts and they check off

the ones they find[.]” J.A. 3442. The district court concluded this request was unnecessary

because “the vast majority of courts just have a general verdict form. . . . [A] special verdict

form requiring enumerating the predicate acts could be very, very confusing for the jury in

this case because of the . . . expansiveness of the criminal acts up and down the Eastern

Seaboard.” J.A. 3443. Instead, “[t]he important thing is that jurors are told that their

decision has to be unanimous.” J.A. 3443.

We have previously observed, “as a general matter, there has been a presumption

against special verdicts in criminal cases. [And] whether to use a special verdict form is a

matter of the district court’s discretion.” Udeozor, 515 F.3d at 271 (citations and internal

quotation marks omitted) (alteration in original). Here, the district court exercised its

discretion and chose not to use a special verdict form but instead to instruct the jury that its

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“verdict must be unanimous as to which type or types of predicate racketeering activity

[Appellants] agreed would be committed.” J.A. 3535. This decision was consistent with

our precedent that holds, “for a RICO conspiracy charge the jury need only be unanimous

as to the types of racketeering acts that the defendants agreed to commit. . . . [N]o

instruction as to the commission of specific acts was required.” United States v. Cornell,

780 F.3d 616, 625 (4th Cir. 2015). Therefore, the district court did not abuse its discretion

in refusing to issue a special jury verdict form.

Gilmore separately appeals two district court decisions on jury instructions: (1) the

court’s denial of her request to issue a statute-of-limitation instruction and (2) the decision

to instruct the jury on two federal crimes in connection with her tax fraud scheme. First,

she challenges the district court’s denial of her request for a statute-of-limitation instruction.

She contends that she withdrew from the RICO conspiracy and that based on her

withdrawal, the statute of limitations had expired.

“Upon joining a criminal conspiracy, a defendant’s membership in the ongoing

unlawful scheme continues until [s]he withdraws. A defendant who withdraws outside the

relevant statute-of-limitations period has a complete defense to prosecution.” Smith v.

United States, 568 U.S. 106, 107 (2013). “Establishing individual withdrawal was a burden

that rested firmly on the defendant regardless of when the purported withdrawal took place.”

Id. at 110.

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In the district court, Gilmore argued that she withdrew from the RICO conspiracy

by becoming an inactive UBN member. To support her argument, she pointed to her

statement to the arresting FBI agent, “I’m a Blood, but I haven’t done anything in a while.”

J.A. 2620. The court disagreed with Gilmore’s contention, holding that her conduct did

not show “affirmative withdrawal from the conspiracy,” J.A. 3446, and “there is really no

evidence whatsoever of withdrawal,” J.A. 3447. For that reason, it rejected Gilmore’s

request to instruct the jury on the question of her withdrawal.

“[W]e review a district court’s refusal to give a jury instruction for abuse of

discretion,” Mouzone, 687 F.3d at 217 (citation omitted), and conclude that the district

court did not abuse its discretion in deciding that Gilmore had not come forward with

evidence to support giving an instruction about withdrawal. Her claim of inactive UBN

membership does not constitute withdrawal because “[o]nce it is proven that a defendant

was a member of the conspiracy, the defendant’s membership in the conspiracy is

presumed to continue until he withdraws from the conspiracy by affirmative action.”

Cornell, 780 F.3d at 632 (internal quotation marks omitted). Because Gilmore proffered

no affirmative acts of withdrawal and pointed solely to her statement to the arresting officer

to support her contention, the district court properly found that her participation in the

RICO scheme continued.

Next, Gilmore challenges the jury instruction on identity theft, in violation of 18

U.S.C. § 1028, and bank fraud, in violation of 18 U.S.C. § 1344. The district court

instructed the jury to consider these two crimes in connection with the tax fraud scheme in

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which she engaged. The evidence at trial showed that in 2010 and 2011, Gilmore provided

stolen personal information, such as names, social-security numbers, and dates of birth, to

Margo Lewis. Using the information provided, Lewis electronically filed fraudulent tax

returns and directed tax refunds to be deposited in bank accounts designated by Gilmore.

In the district court, Gilmore contended that the jury instruction was erroneous

because the fraud scheme could not violate more than one criminal statute and must be

tried under the bank fraud statute only. The court rejected the argument because the same

acts could violate more than one criminal statute. See United States v. Batchelder, 442 U.S.

114, 123–24 (1979). On appeal, however, Gilmore makes a new claim that bank fraud and

identity theft do not constitute “racketeering activity” as defined in 18 U.S.C. § 1961(1).

Because this is a new argument Gilmore did not raise in the district court, we review it for

plain error. Carthorne, 726 F.3d at 510.

We find no error here (plain or otherwise) because the relevant statutory definitions

do not support Gilmore’s argument. The RICO statute explicitly defines “racketeering

activity” to include “any act which is indictable under . . . section 1028 (relating to fraud

and related activity in connection with identification documents) . . . [and] section 1344

(relating to financial institution fraud),” 18 U.S.C. § 1961(1)(B), thereby covering bank

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fraud and identity theft. Accordingly, we hold that the district court properly instructed the

jury. 7

After the jury verdict, Gilmore moved for a new trial. She argued in the district court

that she was not a member of UBN because some of the Nine Trey members who testified

during trial did not identify her as a co-conspirator and the evidence failed to connect her

to the crimes charged. The district court denied her motion, and Gilmore appeals this

decision.

“The decision to grant or deny a motion for a new trial is within the broad discretion

of the district court.” United States v. Tucker, 376 F.3d 236, 238 (4th Cir. 2004). “Such

motions should be awarded[] sparingly, as a jury verdict is not to be overturned except in

the rare circumstance when the evidence weighs heavily against it.” United States v. Wilson,

624 F.3d 640, 660 (4th Cir. 2010) (internal quotation marks omitted).

Gilmore does not present such a “rare circumstance,” as abundant evidence supports

her conviction. She identified herself as a “Blood member” to the arresting officer, and

several witnesses testified extensively to her membership and criminal gang activities. For

instance, a Nine Trey member, Quincy Burrell, identified Gilmore as “a Nine Trey

Similarly without merit is Gilmore’s challenge of the district court’s refusal to

instruct the jury that it must find the racketeering activity “substantially” affected interstate

commerce. J.A. 3476. The court denied this request because that element was inapplicable

here. Gilmore argues on appeal the exclusion of the “substantial” modifier from the jury

instruction was error, but this argument contradicts our established precedent. We disagree

because “a de minimis effect on interstate commerce is all that was required to

satisfy RICO’s commerce element.” Cornell, 780 F.3d at 621.

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member,” J.A. 2355, and testified that they engaged in drug trafficking. J.A. 2357–58

(testifying that he and Gilmore engaged in a “test run” of “selling drugs” and that “[he]

gave Cynthia seven grams of heroin. . . . She gave [him] $200[.]”). Further, Lewis testified

that she committed tax fraud under the direction of “Cynt.” J.A. 2636. Based on this

evidence, we reject Gilmore’s contention.

Gutierrez and Baxton contend that insufficient evidence supports the jury’s civil

forfeiture findings. After the jury rendered a verdict finding Baxton and Gutierrez guilty,

the Government moved for forfeiture of commissary funds Baxton and Gutierrez received

from certain UBN members or derived from racketeering activities. The district court

instructed the jury to decide whether to forfeit the $6,767.03 seized from Gutierrez’s prison

commissary account and the $9,268.15 seized from Baxton’s prison commissary account.

The jury found that Gutierrez and Baxton derived those proceeds from racketeering

activities in violation of § 1962 8 and those proceeds afforded them a source of influence

over the racketeering enterprise they controlled.

As discussed, we will not overturn the jury’s verdict unless

the prosecution’s failure is clear. That is, the jury’s verdict must be upheld on

appeal if there is substantial evidence in the record to support it. We have

defined substantial evidence as evidence that a reasonable finder of fact could

accept as adequate and sufficient to support a conclusion of a defendant’s

Section 1962 states, in relevant part, “[i]t 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 [RICO] . . . .” 18 U.S.C. § 1962(a).

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guilt beyond a reasonable doubt. In evaluating an issue of evidence

sufficiency, we view the evidence and the reasonable inferences to be drawn

therefrom in the light most favorable to the government.

United States v. Farrell, 921 F.3d 116, 136 (4th Cir. 2019) (internal quotation marks,

citations, and alteration omitted omitted). This standard imposes a heavy burden on

Gutierrez and Baxton, which they have not met.

The commissary funds were forfeited pursuant to § 1963(a)(3), which requires

forfeiture of “any property constituting, or derived from, any proceeds which the person

obtained, directly or indirectly, from racketeering activity or unlawful debt collection in

violation of [§] 1962.” Substantial evidence shows that these funds qualify as proceeds

prohibited under § 1963(a)(3) because they were gang dues from UBN members or gains

from criminal activities, such as robbery and drug trafficking, in violation of § 1962.

Accordingly, we affirm the jury’s forfeiture verdict.

Appellants also contend their respective sentences were procedurally and

substantively unreasonable. In reviewing a sentence, this Court first must ensure that the

sentences are procedurally sound and, if they are, then must consider whether they are

substantively reasonable. United States v. Provance, 944 F.3d 213, 218 (4th Cir. 2019).

We review the district “court’s factual findings for clear error and its legal conclusions de

novo.” United States v. Shephard, 892 F.3d 666, 670 (4th Cir. 2018).

Appellants contend that the district court committed procedural error by improperly

calculating their base offense levels. In a RICO case the base offense level is the greater of

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19 or “the offense level applicable to the underlying racketeering activity.” U.S.S.G.

§ 2E1.1(a). If a defendant has committed multiple underlying racketeering activities, the

court should then “treat each underlying offense as if contained in a separate count of

conviction.” Id. cmt. n.1.

Here, the jury did not specify the underlying racketeering offenses for Appellants’

RICO convictions. Instead, the district court separately determined the applicable offenses

as follows: for Gutierrez, conspiracy or solicitation to commit murder resulting in a base

offense level of 33; for Baxton, drug trafficking in an amount totaling at least 1,600

kilograms resulting in a base offense level of 30; and for Gilmore, robbery resulting in a

base offense level of 20. Appellants argue that these determinations were erroneous

because the district court lacked sufficient evidence to find that Appellants committed any

of the underlying offenses.

We reject this contention because, as the district court articulated, the Government

presented ample evidence during the jury trial and the sentencing hearings that Appellants

engaged in the attributed underlying racketeering activities. J.A. 4026–27 (the

Government’s summary of a UBN member’s testimony that he sold drugs to pay dues to

Baxton); J.A. 4102 (finding Baxton engaged in “smuggling contraband in the prisons now

– drugs”); J.A. 4143 (concluding the Government showed by “a preponderance of the

evidence” Gutierrez’s order to murder a rival gang member); J.A. 4335–37 (finding by a

preponderance of the evidence that Gilmore was involved in the robbery and discussing

supporting evidence).

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Alternatively, Appellants assert that even if such evidence existed in the record, the

court erred because it made its findings by a preponderance of the evidence instead of

beyond a reasonable doubt. We disagree. In making its findings, the district court was not

required to apply the reasonable doubt standard but properly used the preponderance of

evidence standard. See Mouzone, 687 F.3d at 220. Our precedent has repeatedly reviewed

and affirmed rulings in which the district court used that standard to make findings that

were challenged on appeal.

For example, we affirmed in Mouzone the district court’s finding by a

preponderance of the evidence that a defendant committed murder and its decision to use

the offense of murder in calculating a base offense level. In Mouzone, the jury had

convicted the defendant of a RICO conspiracy, finding that distribution of narcotics and

robbery were the conspiracy objectives. But the jury specifically “declined to find that

murder or conspiracy to commit murder was a conspiracy objective.” Id. at 212. Despite

the jury’s finding, at sentencing, the district court determined that the defendant “‘more

likely than not’” committed murder and applied the offense level applicable to murder as

the defendant’s base offense level. Id. at 220. On appeal, the defendant argued that the

district court lacked sufficient evidence to make this finding and erred in treating murder

as an underlying racketeering activity. We rejected this argument and upheld the district

court’s determination of the base offense level because the Government presented ample

evidence at trial under a preponderance standard that the defendant committed the crime.

We further held that, “while we recognize that the jury declined to find that [the defendant]

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murdered [the victim], we also affirm the district court’s entitlement to make its own

findings, supported by a preponderance of the evidence, regarding [the defendant’s]

offenses for sentencing purposes.” Id.; see United States v. Benkahla, 530 F.3d 300, 312

(4th Cir. 2008) (“Sentencing judges may find facts relevant to determining a Guidelines

range by a preponderance of the evidence, so long as that Guidelines sentence is treated as

advisory and falls within the statutory maximum authorized by the jury’s verdict.”).

Similarly, in United States v. Zelaya, we affirmed the sentence when, in calculating

the defendant’s base offense level, the district court made findings by a preponderance of

the evidence as to a predicate racketeering act independently of the jury verdict. 908 F.3d

920, 930–31 (4th Cir. 2018). There, the defendant was a member of a gang and participated

in drug trafficking, robberies, and gang-related gunfights. Id at 924. After trial, a jury

convicted the defendant of a RICO conspiracy in a general verdict that did not specify

predicate racketeering activities. Despite this lack of specific findings for predicate acts,

the district court found by a preponderance of the evidence that, as part of the RICO

conspiracy, the defendant attempted to commit murder by participating in a gang shooting

and used the offense level applicable to the crime of attempted murder in calculating his

base offense level. Id. at 930–31.

We affirmed on appeal, holding that the defendant’s participation in “[t]he shooting

was within the scope of [the gang’s] criminal activities, in furtherance of them, and

reasonably foreseeable in light of them, so it constituted a crime committed as part of the

conspiracy.” Id. at 931 (citing U.S.S.G. § 1B1.2(a)(1)(B)). In affirming the court’s

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sentencing determinations, we did not question the district court’s established authority to

make its sentencing findings by a preponderance of the evidence in determining the base

offense level. In light of our established case law, the district court here properly made its

sentencing findings “by a preponderance of the evidence,” and held, “[t]he jury doesn’t

have anything to do with what I decide today.” J.A. 4041.

By arguing that the district court erred in using the preponderance standard during

sentence, Appellants ignore our precedent and instead rely on a single out-of-circuit

decision, United States v. Nguyen, 255 F.3d 1335 (11th Cir. 2001). In that case, the

Eleventh Circuit held that when “the jury verdict was ambiguous as to which acts supported

the conspiracy conviction,” “[t]he [district] court was . . . required to determine the

predicate acts underlying each defendant’s conspiracy conviction using the reasonable

doubt standard.” Id. at 1341-42. The court reached this conclusion based on Comment 4 to

U.S.S.G. § 1B1.2(d), which notes, when a guilty verdict “does not establish which

offense(s) was the object of the conspiracy,” a defendant should be sentenced based on an

offense that was the object of the conspiracy “if the court, were it sitting as a trier of fact,

would convict the defendant of conspiring to commit that object offense.” U.S.S.G. §

1B1.2(d) cmt. 4.; see Nguyen, 255 F.3d at 1341–42.

As the Seventh Circuit has noted, however, “every other circuit to consider th[is]

question” has rejected the Eleventh Circuit’s approach. United States v. Garcia, 754 F.3d

460, 482 (7th Cir. 2014) (citing United States v. Massino, 546 F.3d 123, 135 (2d Cir. 2008);

United States v. Corrado, 227 F.3d 528, 541–42 (6th Cir. 2000); United States v. Carrozza,

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4 F.3d 70, 79–80 (1st Cir. 1993)). The Garcia court explained that the object of a RICO

conspiracy is “to engage in racketeering,” not to commit each predicate racketeering act.

Id. Furthermore, the court held that making specific findings as to each underlying

racketeering offense under U.S.S.G. § 1B1.2(d) would conflict with U.S.S.G. § 2E1.1(a)(2),

which specifically governs the RICO sentencing scheme.

As the Garcia court elaborated,

RICO conspiracies are of the single-object variety, with the object being to

engage in racketeering. The predicate racketeering acts are not, in themselves,

conspiratorial objects.

We have understood RICO conspiracies in the same way as the

majority of our sister circuits—that is, as arrangements devoted to a single

objective. Consistently with that view, we now hold that § 1B1.2(d) does not

apply to RICO conspiracies. We note that this position has the virtue of fitting

better with the RICO guideline, § 2E1.1(a)(2), which calls for replacing the

RICO baseline of 19 with the level applicable to the most serious underlying

conduct if that offense level would be higher. That would make little sense

if the underlying conduct had to be treated as separate counts.

Id. at 482–83 (internal citations omitted).

This holding in Garcia is in accord with our cases, including Mouzone and Zelaya,

in which district courts determined by a preponderance of the evidence defendants’ most

serious racketeering activities and used the offense levels applicable to those activities as

the base offense levels under § 2E1.1(a)(2). Lest there be any doubt going forward, we now

join the overwhelming majority of our sister circuits in specifically holding that the

preponderance standard is the appropriate standard for sentencing determinations in a

RICO conspiracy—that is, a sentencing court may make sentencing findings by a

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preponderance of the evidence under U.S.S.G. § 2E1.1(a). Accordingly, the district court

here used the proper standard to determine the base offense level.

Lastly, Appellants challenge their sentences as generally being procedurally and

substantively unreasonable. We first examine whether their sentences are procedurally

reasonable and hold that they are. Our review shows that the sentencing court did not

commit

any

procedural

error,

such

as,

“failing

properly

calculate

the

applicable Sentencing Guidelines range, failing to consider the 18 U.S.C. § 3553(a) factors,

and failing to adequately explain the sentence -- including an explanation for any deviation

from the Guidelines range.” Provance, 944 F.3d at 218 (internal quotation marks omitted).

The district court considered each Appellant’s criminal and personal history,

criminal conduct, objections to certain sentencing enhancements, and the evidence

presented during the trial and the sentencing hearings. After careful consideration, it

overruled most objections to the enhancements, articulated its findings as to Appellants’

relevant criminal conduct and supporting reasons, and determined a sentence for each

Appellant. With respect to Gutierrez, the court calculated his Guidelines range to be from

360 months to life imprisonment but sentenced him to 240 months’ imprisonment because

that was the RICO statutory maximum sentence. Baxton’s Guidelines range was also 360

months to life imprisonment, but he likewise was sentenced to 240 months’ imprisonment.

As to Gilmore, her sentencing calculation resulted in a Guidelines range of 210 to 240

months’ imprisonment, and the court sentenced her to 228 months in prison.

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Based on the district court’s thorough explanations, we are satisfied that it made “an

individualized assessment based on the facts presented and . . . state[d] in open court the

particular reasons supporting its chosen sentence.” Provance, 944 F.3d at 218 (internal

quotation marks omitted). It also “address[ed] the parties’ nonfrivolous arguments in favor

of a particular sentence, and . . . explain[ed] why in a sufficiently detailed manner to allow

this Court to conduct a meaningful appellate review.” Id. (internal quotation marks

omitted). “In doing so, the sentencing judge . . . set forth enough to satisfy [us] that he has

considered the parties’ arguments and has a reasoned basis for exercising his own legal

decision-making authority.” Id. (internal quotation marks omitted).

Finding no procedural error, we then review the substantive reasonableness of

Appellants’ sentences “for abuse of discretion only.” United States v. Louthian, 756 F.3d

295, 306 (4th Cir. 2014). We start with a presumption that Appellants’ sentences are

reasonable because each is below or within a properly calculated Guidelines range. See id.

“Such a presumption can only be rebutted by showing that the sentence is unreasonable

when measured against the 18 U.S.C. § 3553(a) factors.” Id. Appellants do not make this

showing because their arguments present nothing more than their disagreements with the

district court’s factual findings and legal conclusions, which do not show that their

sentences are unreasonable when measured against the § 3553(a) factors. Accordingly, we

hold the respective sentences are procedurally and substantively reasonable and affirm each

sentence.

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III.

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 in the

decisional process. The judgment of the district court is

AFFIRMED.

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U.S. Const., Amend. V

No person shall be held to answer for a capital, or otherwise infamous crime,

unless on a presentment or indictment of a grand jury, except in cases arising

in the land or naval forces, or in the militia, when in actual service in time of

war or public danger; … nor shall be compelled in any criminal case to be a

witness against himself, nor be deprived of life, liberty, or property, without

due process of law…

U.S. Const., Amend VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury of the State and district wherein the crime

shall have been committed, which district shall have been previously

ascertained by law, and to be informed of the nature and cause of the

accusation; to be confronted with the witnesses against him; to have

compulsory process for obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defense.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.