Petition for Writ of Certiorari — Demarcus D. Morris, Petitioner v. United States

APPENDIX

A

Case: 19-30619 Document: 00515549744 Page:1 Date Filed: 09/02/2020

Case 5:17-cr-00173-EEF-MLH Document 609 Filed 09/02/20 Page 6 of 38 PagelD #: 15980

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

No. 19-30619 August 11, 2020

Lyle W. Cayce

Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

DEMARCUS D. MORRIS, also known as GG, also known as Gezzy,

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 5:17-CR-173-1

Before JOLLY, JONES, and WILLETT, Circuit Judges.

JUDGMENT

This cause was considered on the record on appeal and the briefs on

file.

IT IS ORDERED and ADJUDGED that the judgment of the District

Court is AFFIRMED.

Certified as a true copy and issued

as the mandate on Sep 02, 2020

Attest: Suge W. ra) a

Clerk, U.S. rt of Appeals, Fifth Circuit

Case: 19-30619 Document: 00515549745 Page:1 Date Filed: 09/02/2020

Case 5:17-cr-00173-EEF-MLH Document 609 Filed 09/02/20 Page 7 of 38 PagelD #: 15981

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

Non Leretoee August 11, 2020

Lyle W. Cayce

UNITED STATES OF AMERICA, Clerk

Plaintiff - Appellee

v.

LONNIE D. JOHNSON, also known as D-Money;

LARSHANDRA DAVENPORT, also known as Shonda Morris;

JIMMIE R. DURDEN, JR.; GARY J. MCCAIN, also known as RoRo;

DEMARCUS D. MORRIS, also known as GG, also known as Gezzy,

Defendants - Appellants

Appeals from the United States District Court

for the Western District of Louisiana

USDC No. 5:17-CR-173-4

Before JOLLY, JONES, and WILLETT, Circuit Judges.

PER CURIAM:*

In this direct criminal appeal, defendants-appellants raise ten

challenges to their convictions of racketeering, drug conspiracy and

distribution, and possession of a firearm by a felon. Finding no error, we reject

all challenges and AFFIRM.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH

Cir. R. 47.5.4.

Case: 19-30619 | Document: 00515549745 Page:2 Date Filed: 09/02/2020

Case 5:17-cr-00173-EEF-MLH Document 609 Filed 09/02/20 Page 8 of 38 PagelD #: 15982

No. 19-30619

BACKGROUND!

This case revolves around the Block Boyz, a Shreveport rap group turned

criminal enterprise. The Block Boyz was largely a family affair; it was led by

Demarcus Morris? and his brother Frank, with their mother, Larshandra

Davenport, providing protection and a home base. J jimmie Durden, who hada

child with Morris’s sister, was a member of the Block Boyz as was Lonnie

Johnson, a cousin. The final member of the cohort implicated in the case at

bar is Gary McCain, a family friend. Over the course of several years, the Block

Boyz engaged in shootouts, robberies, and drug deals, all in the pursuit of

wealth. A mountain of evidence, much of which is detailed below, was

presented over the course of a lengthy trial, culminating in convictions for

Johnson, Morris, Durden, and Davenport of cathsphaney to participate in the

affairs of a racketeering enterprise; Morris, Durden, McCain, and Davenport

of conspiracy to distribute controlled substances; Morris of distributing crack

cocaine; Durden, McCain, and Morris of possessing a firearm while a felon; and

Davenport of distributing powder cocaine.

The Block Boyz began in 2010 when Frank Morris and Lonnie Johnson,

along with a few friends, decided to start a rap group. The group quickly grew

to include Demarcus Morris, Jimmie Durden, and Gary McCain, among others.

As the group expanded, its purpose devolved from producing rap music to

selling drugs and engaging in robberies. Predictably, guns got involved as the

Block Boyz took “care of each other” and staved off rival gangs. They were a

tightknit group, quick to defend one another and quick to exclude someone if

1 The evidence presented at trial included recorded calls between co-defendants and

between government informants and the defendants. Transcripts of these calls were not

included in the record on appeal. But the government’s brief quoted pertinent portions of the

calls, and the defendants do not challenge the accuracy of the government’s recitation.

2 Any reference to Morris hereinafter is a reference to Demarcus Morris.

2

Case: 19-30619 Document: 00515549745 Page:3 Date Filed: 09/02/2020

Case 5:17-cr-00173-EEF-MLH Document 609 Filed 09/02/20 Page 9 of 38 PagelD #: 15983

No. 19-30619

they “stopped hustling.” To identify themselves, the group wore red, got

tattoos, and posted photos and status updates together on social media,

sometimes while wearing red or in “Blockboy” t-shirts.

Many of the Block Boyz’s shenanigans were geared towards obtaining

and selling drugs. The groups’ earliest documented involvement with drugs

occurred on January 26, 2011, when, during a traffic stop, officers seized 60

grams of marijuana and 60 dosage units of ecstasy pills from Durden’s pocket.

Three years later, officers stopped Frank Morris, who was driving with other

members of the Block Boyz, and found a loaded Mac 10 submachine gun, three

loaded handguns, 40 grams of marijuana, Xanax, and digital scales. In

January 2016, officers stopped Demarcus Morris after a hit-and-run; they

found 100 bags of crack cocaine, a loaded gun, approximately $1,700 in cash,

and digital scales. A few months later, officers apprehended McCain while he

was driving Morris’s car and discovered a loaded assault rifle and marijuana.

Between May 5, 2016 and June 22, 2016, a government informant, Q.T.,

made six controlled crack purchases from Morris and attempted a seventh.

Morris—or McCain, who accompanied Morris—was often armed during these

transactions. Cocaine was sometimes delivered by a third party to Morris, who

in turn offered to cook it into crack for Q.T.; Q.T. paid Morris extra for this

service. In addition to buying crack from Morris, Q.T. purchased a shotgun.

On July 14, 2016, Durden’s aunt, Rhonda Noyes, called Morris to tell him

that she had a source for “some soft [powder].” Morris relayed the message to

Durden. The next week, Davenport called Morris to tell him that a buyer was

waiting to get a “dime” from him. Four days later, Morris sent Durden to make

a drug sale. On July 28, Morris called a seller to ask about the price of “snow.”

A week later, he called another seller to inquire about drug availability. Morris

and the seller met shortly thereafter. That same day, Morris placed a call

seeking “another four.” A seller agreed to “hook y’alls boys up,” and the two

3

Case: 19-30619 Document: 00515549745 Page:4 Date Filed: 09/02/2020

Case 5:17-cr-00173-EEF-MLH Document 609 Filed 09/02/20 Page 10 of 38 PagelD #:

15984

No. 19-30619

agreed on a meeting spot. These types of calls continued the next day,

including a call between Davenport and Morris during which Davenport

informed Morris that she had a buyer who was looking for marijuana. Two

days later, Morris helped Davenport sell 116 15-milligram pills of Roxicodone.

Between April 25 and June 26, 2017, Q.B., a police informant, bought powder

cocaine from Davenport four times.

Morris and Durden tried to conceal their drug dealings from police. On

July 28, 2016, Durden called Morris to warn him that police were seeking a

warrant for Davenport’s home. Morris responded that they needed to go

“clean” the home and move supplies to “Granny's house”—also referred to as

the Midway house—where Morris’s grandmother and his brother, Frank,

resided. Three hours later, a member of the Block Boyz called Morris to tell

him that the police were searching the Midway house instead. McCain was

also made aware of this change. From the Midway house, police seized a

backpack filled with one-gallon bags containing residue, digital scales,

counterfeit money, ammunition, a gun, a 30-round magazine for a rifle or AR

pistol, and a case for a .40 caliber gun; they also arrested Frank Morris.

As the above facts suggest, the Block Boyz regularly handled and dealt

guns. Morris, in particular, was prone to engage in trade discussions and

barter for firearms. For instance, on August 2, 2016, Robert Cannon, another

member of the Block Boyz, told Morris he had someone who wanted to sell

“some ninety nines”—“the model them cops had with the night vision scopes”—

for “two fifty.” Morris responded that he wanted one. Cannon later told Morris

to have McCain meet him at a convenience store, the Stop-N-Fly, with cash.

That same night, Cannon asked Morris if McCain wanted to trade his Glock

for “[t]hat Uzi and two dollars”; Morris said he would have McCain contact

Cannon. Durden was also involved in gun transactions. He had discussions

Case: 19-30619 Document: 00515549745 + Page:5 Date Filed: 09/02/2020

Case 5:17-cr-00173-EEF-MLH Document 609 Filed 09/02/20 Page 11 of 38 PagelD #:

15985

No. 19-30619

with Morris about acquiring firearms and occasionally would run pick-ups for

Morris.

The Block Boyz used their guns to fight rival gangs and to conduct

robberies. The earliest documented gun fight involving a member of the Block

Boyz occurred in May 2012. McCain, who was dressed in “all red,” was shot

while at a club. He responded by firing a gun at individuals in a Crown

Victoria, shooting one person in the head and another in the face. McCain also

shot at rival gang members on December 13, 2013. While riding as a passenger

ina car, he was shot at and fired back. McCain’s car had multiple bullet holes

in it, caused by shots fired from both inside and outside the vehicle.

In May 2012, both Johnson and Morris fired guns during fights with

rivals. Johnson hit someone in the leg and Morris assaulted a pregnant

woman. On August 18, 2012, Durden shot at Jacorvin Taylor at the Stop-N-

Fly. In 2016, Durden and Morris were recorded discussing shooting a member

of a rival gang, the Trap Boyz. Later that year, several men shot at an

apartment complex where McCain, Durden, and Morris lived. In a series of

calls, Davenport discussed the shooting with Morris and McCain and

discovered that police were looking for Morris’s car. The car was hid at Morris’s

aunt’s house.

On July 26, 2016, a member of the Trap Boyz “tried to get at” Morris and

Durden. Morris called around see if anyone had seen “that little red car” and

asked to borrow a truck. Later that day, the police, responding to a call

reporting gunfire, found a red Dodge truck with bullet holes in it. Morris

boasted to a friend the next day about the shooting, mocking the Trap Boyz as

terrible shots. Despite having escaped injury-free, Morris was upset by the

shooting and mentioned to Durden that they should gun down the rival gang.

Morris acted on that threat, but with no success. Conflict with the Trap Boyz

Case: 19-30619 Document: 00515549745 Page:6 Date Filed: 09/02/2020

Case 5:17-cr-00173-EEF-MLH Document 609 Filed 09/02/20 Page 12 of 38 PagelD #:

15986

No. 19-30619

extended into the prisons, where McCain and a rival gang member got into a

brawl.

Robberies were another central feature of the Block Boyz’s enterprise.

On January 28, 2014, Adams, a member of the Block Boyz, dropped off Johnson

and Morris’s cousin, Hammer, at the Kings Manor apartments. A few minutes

later, Adams heard gunshots before seeing Johnson and Hammer running back

to the car. According to Kameshia Martin, whose home Johnson and Hammer

targeted, two men entered her bedroom through the window while she was

asleep. One of the men held a gun on Martin while the other went through the

apartment taking, among other things, a laptop and a phone.’ Martin, who

had a gun under her pillow, eventually was able to fire at the intruders; they

returned fire, shooting Martin three times. Officers found shell casings and

bullet holes throughout Martin’s apartment. They also discovered that

Martin’s fiancé’s car (where a gun was stored) had been broken into. Johnson

later admitted to friends that he had broken the car window to steal the gun.

Hammer, Johnson, and Adams were involved in a second armed robbery

that night. After meeting up with Morris, the group traveled to the Briarwood

Apartments. They had received word that one of the residents had “a lot of

dope” and money. Residing at the Block Boyz’s targeted apartment was

Deandre Jackson, his girlfriend, his mother, his brother, and two younger

siblings. Hammer and Johnson, both wearing masks, came into the

apartment; one held a gun to Jackson’s head, took him into another room,

demanded money, and fired a shot into the air. At some point, either Hammer

or Johnson began shooting, and Jackson’s brother returned fire. Hammer was

killed, Jackson’s brother was shot in the head, and Johnson was shot in the

leg. Adams, Johnson, and Morris fled the apartment complex, leaving behind

3 The phone was later found in the trash at the Midway house.

6

Case: 19-30619 | Document: 00515549745 Page:7 Date Filed: 09/02/2020

Case 5:17-cr-00173-EEF-MLH Document 609 Filed 09/02/20 Page 13 of 38 PagelD #:

15987

No. 19-30619

their guns and masks and driving away in a tan SUV. They returned to the

Midway home, where Morris’s grandmother wrapped J ohnson’s leg.

Johnson, Morris, and several others later tried to drive from the Midway

house to the hospital in the tan SUV but were stopped by police. Police seized

a loaded assault rifle and a blood sample from the SUV; the DNA matched

Johnson. DNA from blood on the bedroom floor of the Midway house also

matched Johnson.

On July 14, 2016, after talking to Noyes about obtaining drugs, Morris

and Durden discussed robbing Noyes’s source. Morris and Durden observed

that the source probably had more than drugs—‘“we can go in his pockets.”

They talked again that night about robbing the source, as “[t]hat’s easy money

there.” They weren’t worried about Noyes’s reaction.

Morris and Durden planned at least two other robberies, both of which

were thwarted by police. One of these attempted robberies occurred on

August 8, 2016, after Raphiel Wilson informed Morris that there was someone

in a Walmart parking lot with $17,000. Police, who were listening to the Block

Boyz’s calls as part of an ongoing investigation, went to the Walmart. Wilson

and Morris’s target eventually left the Walmart parking lot and headed for an

apartment complex; Wilson and Morris followed. Wilson’s car was pulled over

by police before reaching the complex, though the police eventually let him go.

Morris was apprehended at the complex in an Impala; Durden was also in the

car. In the backseat passenger floorboard area was a semiautomatic gun with

an extended magazine. Officers found four more guns in the trunk of the car.

Morris and Durden were arrested.

About two weeks later, Durden spoke to Davenport from jail. Davenport

was aware that the Block Boyz were under investigation and was concerned

about government informants working from inside the jail. She told Durden

that some “Baby daddy” was a “damn apple” and “wasn’t no good.” Singling

7

Case: 19-30619 Document: 00515549745 Page:8 Date Filed: 09/02/2020

Case 5:17-cr-00173-EEF-MLH Document 609 Filed 09/02/20 Page 14 of 38 PagelD #:

15988

No. 19-30619

out an unidentified female associated with the “bad apple,” Davenport warned,

“(t]hat girl signed a separation” “on your people” and “that’s why my people got

put|] in foxtrot.” Durden seemed to understand that Davenport was “saying

_.. he’—the “bad apple” in the jail—“don’t need to be around me.” The next

day, however, Durden called Davenport for clarification. Durden specifically

asked if he needed to “whoop his a[**] or something,” referring again to the

suspected informant. Davenport elaborated that the person in question was

“foul” and that the girl he associated with was “running” “with the badge.”

Durden then informed Davenport that the man in question was his cellmate,

and that the girl they spoke of had been coming to see him every day. He told

Davenport that “I’m gonna whoop his a[**]” andlto “tell [Morris] I don’t know

what them people fixing to do with me I’m fixing to whoop that boy|’]s a[**]

though.” Davenport told Durden that she loved him and to be careful. Later

that day, Durden “swung on” his cell mate, Jimmy Jenkins.

Based on the foregoing evidence, the government filed an eighteen-count

indictment. After a two-and-a-half-week jury trial, the defendants were found

guilty on all tried counts. Johnson, Morris, Durden, McCain, and Davenport

were convicted of conspiracy to participate in the affairs of a racketeering

enterprise in violation of 18 U.S.C. § 1962(d) (Count 1); Morris, Durden,

McCain, and Davenport were convicted of conspiracy to distribute controlled

substances in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count 2); Morris was

convicted of distributing crack cocaine in violation of 21 U.S.C. § 841(a)(1)

(Counts 9-11); Durden, McCain, and Morris were convicted of possessing a

firearm while a felon in violation of 18 U.S.C. § 922(g) (Count 8: McCain; Count

12: Morris; Count 15: Durden and Morris); and Davenport was convicted of

distributing powder cocaine, in violation of 21 U.S.C. § 841(a)(1) (Counts 16—

18). Before the case was submitted to the jury, Johnson, McCain, and Durden

challenged the sufficiency of the evidence supporting their racketeering-

8

Case: 19-30619 Document: 00515549745 Page:9 Date Filed: 09/02/2020

Case 5:17-cr-00173-EEF-MLH Document 609 Filed 09/02/20 Page 15 of 38 PagelD #:

15989

No. 19-30619

conspiracy convictions. Durden additionally challenged the sufficiency of the

evidence supporting his controlled-substance-conspiracy and felon-inpossession convictions. And Morris challenged the evidence supporting his

crack-distribution convictions. The district court rejected all challenges.

Ultimately, it sentenced defendants to the following prison terms: Johnson,

240 months; Morris, 405 months; Durden, 190 months; McCain, 110 months;

and Davenport, 71 months.

DISCUSSION

Defendants raise a myriad of claims requiring the application of different

legal standards. We consider each claim in turn.

I. Sufficiency of the Evidence‘*

The defendants begin by renewing their sufficiency of the evidence

objections. Specifically, Johnson, McCain, and Durden challenge the

sufficiency of the evidence supporting their racketeering-conspiracy

convictions. Durden additionally challenges the evidence supporting his

controlled-substances-conspiracy and felon-in-possession convictions. And

Morris challenges the evidence supporting his crack-distribution convictions.

“This court reviews preserved challenges to the sufficiency of the

evidence de novo.” United States v. Grant, 683 F.3d 689, 642 (5th Cir. 2012).

“The ultimate test for sufficiency of the evidence challenges is whether a

reasonable jury could find that the evidence establishes guilt beyond a

reasonable doubt.” United States v. Salazar, 958 F.2d 1285, 1291 (5th Cir.

1992). “When reviewing the sufficiency of the evidence, we view all evidence,

4 Defendants have, for the most part, filed briefs that adopt the arguments advanced

by their co-defendants. See FED. R. App. P. 28(i). Because we reject all defendants’

challenges, we do not note which defendants have adopted which arguments. See generally

United States v. Alix, 86 F.3d 429, 434 n.2 (5th Cir. 1996) (“[A]n appellant may not raise

fact-specific challenges to his own conviction or sentence . . . by merely referring to similar

challenges in another appellant’s brief.”).

9

Case: 19-30619 Document: 00515549745 Page:10 Date Filed: 09/02/2020

Case 5:17-cr-00173-EEF-MLH Document 609 Filed 09/02/20 Page 16 of 38 PagelD #:

15990

No. 19-30619

whether circumstantial or direct, in the light most favorable to the

government, with all reasonable inferences and credibility choices to be made

in support of the jury’s verdict.” United States v. Ford, 558 F.3d 371, 375 (5th

Cir. 2009). “The evidence need not exclude every reasonable hypothesis of

innocence or be completely inconsistent with every conclusion except guilt, so

long as a reasonable trier of fact could find that the evidence established guilt

beyond a reasonable doubt.” Jd.

A. Racketeering Conspiracy Convictions

The Racketeer Influenced and Corrupt Organizations Act (“RICO”)

makes it a crime “for any person employed by or associated with any enterprise

engaged in, or the activities of which affect, interstate ... commerce, to conduct

or participate, directly or indirectly, in the conduct of such enterprise’s affairs

through a pattern of racketeering activity,” 18 U.S.C. § 1962(c), or to conspire

to do so, id. § 1962(d). The statute defines “racketeering activity” as acts

“indictable” or “chargeable” under various federal and state laws, including

murder, robbery, and drug distribution. Jd. §1961(1). A “pattern of

racketeering activity’ requires “at least two acts of racketeering activity”

occurring within a ten-year period. Id. § 1961(5). An “enterprise” is defined to

include any “group of individuals associated in fact although not a legal entity.”

Id. § 1961(4). The concept is “expansive,” but it “must have at least three

structural features: a purpose, relationships among those associated with the

enterprise, and longevity sufficient to permit these associates to pursue the

enterprise’s purpose.” Boyle v. United States, 556 U.S. 938, 944-46, 129 S. Ct.

2237, 2243-44 (2009).

“To prove a RICO conspiracy the government must establish (1) that two

or more people agreed to commit a substantive RICO offense and (2) that the

defendant knew of and agreed to the overall objective of the RICO offense.”

United States v. Posada-Rios, 158 F.3d 832, 857 (5th Cir. 1998). “The

10

Case: 19-30619 Document: 00515549745 + Page:11 Date Filed: 09/02/2020

Case 5:17-cr-00173-EEF-MLH Document 609 Filed 09/02/20 Page 17 of 38 PagelD #:

15991

No. 19-30619

agreement, a defendant’s guilty knowledge and a defendant’s participation in

the conspiracy all may be inferred from the ‘development and collocation of

circumstances.” Id. (quoting United States v. Maltos, 985 F.2d 743, 746 (5th

Cir. 1992)). No predicate offense need actually be committed, Salinas v. United

States, 522 U.S. 52, 63-64, 118 S. Ct. 469, 476-77 (1997); nor does the indicted

conspirator need to have agreed to commit specific predicate acts. United

States v. Delgado, 401 F.3d 290, 296 (5th Cir. 2005). Rather, it is sufficient

that the conspirator “kn[ew] of and agreed to the overall objective of the RICO

offense.” Id.

The evidence clearly establishes that the Block Boyz were a criminal

enterprise with the purpose of obtaining money by selling drugs and “hitting

... lick[s]’—or “taking things without paying.” As one member of the Block

Boyz described it, the group’s purpose was “drugs and territory.” Members

defended and protected each other from rival gangs. And they advertised their

affiliation with each other by wearing red, getting tattoos, and posting about

the Block Boyz on social media. The Block Boyz’s criminal activities lasted for

years; members were fighting and shooting rival gangs, specifically the Trap

Boyz, as early as May 2012 and continued to fight the Trap Boyz until August

2016. Jail time, injuries, and even death did not disrupt their mission.

Hammer was killed and Johnson was shot during the January 2014 robberies,

and Frank was arrested in July 2016, but Morris, Davenport, and others kept

selling drugs and planning robberies.

Johnson contends that the Block Boyz was just “a group of young

teenagers who got together to have fun and play rap music.”® That may have

5 In a related vein, some of the defendants contend that they were simply connected

by blood and friendship, not by involvement or association with the Block Boyz. The two

relationships, however, are not mutually exclusive, and the evidence belies this contention.

11

Case: 19-30619 Document: 00515549745 Page:12 Date Filed: 09/02/2020

Case 5:17-cr-00173-EEF-MLH Document 609 Filed 09/02/20 Page 18 of 38 PagelD #:

15992

No. 19-30619

been how the Block Boyz started. But their purpose quickly became criminal.

The jury heard ample evidence demonstrating as much.

Relatedly, it heard overwhelming evidence establishing that the Block

Boyz engaged in a pattern of racketeering activity. Although the government

was only required to establish that the defendants conspired to commit the

predicate acts undergirding the RICO conspiracy indictment, see 18 U.S.C.

§ 1962(d), the jury heard evidence that the Block Boyz actually committed

many predicate offenses, including attempted murder, attempted robbery,

robbery, and drug distribution. Johnson argues that this evidence was

insufficient to support his conviction because the government did not prove

that he engaged in specific predicate offenses with a nexus to the Block Boyz

enterprise. Again, however, the government need only establish that Johnson

knew of and agreed to the overall objective of the conspiracy. See Delgado,

401 F.3d at 296. The government did that and then some; it presented

evidence that Johnson committed attempted murder, robbery, and attempted

robbery in connection with the Block Boyz.

For example, the government established that Johnson participated in

the two January 2014 robberies. Johnson does not dispute that. But he asserts

the robberies were not Block Boyz related activities because the leader of the

robberies, Hammer, was not a member of the gang. Accepting, for present

purposes, that Hammer was not a member of the Block Boyz, Johnson’s claim

is still without merit. This court has held that the racketeering statute

“applies to outsiders as well as to insiders.” United States v. Welch, 656 F.2d

1039, 1065 (5th Cir. 1981). Put differently, an outsider’s involvement in a

predicate act does not necessarily render the act outside the scope of the

enterprise. Additionally, it is not clear that Hammer led the January 2014

robberies. Morris, the Block Boyz’s leader, was with Hammer before the first

robbery; spoke to Hammer on the phone right after that robbery, telling him

12

Case: 19-30619 Document: 00515549745 Page:13 Date Filed: 09/02/2020

Case 5:17-cr-00173-EEF-MLH Document 609 Filed 09/02/20 Page 19 of 38 PagelD #:

15993

No. 19-30619

where to go next; and participated in the second robbery. The jury could thus

reasonably infer that Morris, not Hammer, directed the group’s actions. But

cf. United States v. Jones, 873 F.3d 482, 498 (5th Cir. 2017) (determining that

the evidence presented at trial was insufficient to connect a shooting to the

shooter’s membership in a criminal enterprise or the charged conspiracy).

Johnson also argues that “two home invasions on the same day does not

show a pattern of racketeering activity.” This argument fails for at least two

reasons. First, Johnson need not have committed any predicate offense. It is

enough that two people agreed to violate Section 1926(c) and that Johnson

“agreed to the overall objective of the conspiracy.” Delgado, 401 F.3d at 296.

The jury could find the conspiratorial agreement from the Block Boyz’s many

actual and planned criminal acts, including the drug dealing and shootings in

which Johnson participated. Second, the two robberies constitute separate

offenses. Although they occurred on the same night, the robberies were not a

single criminal transaction—they involved different accomplices, different

victims at different locations, and a break in-between. Cf. United States v.

Washington, 898 F.2d 439, 442 (5th Cir. 1990) (determining, for purposes of

sentencing, that two robberies arose out of separate courses of conduct despite

the robberies being committed within a few hours of each other against the

same victim and at the same location). Johnson’s contrary argument is

unavailing.

Like Johnson, McCain argues that the evidence was insufficient to

support his RICO-conspiracy conviction. He notes that he was not named in

most of the overt acts in the indictment and that the jury did not find that he

personally participated in any robberies or attempted murders in connection

with the racketeering enterprise. That is true, but it does not get McCain off

the hook. He was involved with the Block Boyz and understood the gang’s

objectives—to make money by selling drugs and committing armed robberies,

13

Case: 19-30619 Document: 00515549745 Page:14 Date Filed: 09/02/2020

Case 5:17-cr-00173-EEF-MLH Document 609 Filed 09/02/20 Page 20 of 38 PagelD #:

15994

No. 19-30619

and to fight rival gangs. Abundant evidence establishes that McCain joined

the Block Boyz to further this objective. He helped sell drugs, obtain guns, and

fight the rival Trap Boyz.

McCain acknowledges that he helped the Block Boyz acquire guns. But

he argues that it was legal for him do so, or at least legal to discuss obtaining

firearms. Accepting that proposition as true, a legal act may nonetheless

further an illegal conspiracy. See United States v. Girard, 744 F.2d 1170, 1174

(5th Cir. 1984). And the evidence establishes that McCain discussed,

possessed, and used guns in furtherance of the Block Boyz’s illegal drug

distribution and in fights with rival gangs.

Durden raises many of the same arguments as Johnson and McCain. He

principally contends that he never agreed to “a course of action that would

involve the commission of two substantive crimes.” The evidence presented at

trial makes short work of this assertion. Durden discussed drug deals on

recorded calls, discussed robbing drug sources with Morris, Morris arranged

for Durden to make drug sales, and Durden helped Morris hide evidence of

drug distribution from the police, moving guns, ammunition, and gallon bags

containing residue from Davenport’s home to the Midway house.®

Durden, moreover, participated in the August 8, 2016, attempted

robbery. Officers observed Durden, Morris, and Wilson follow their mark to an

apartment complex; they heard Morris and Wilson discuss the attempted

robbery while Durden was presumably in the car; and they arrested Durden

6 Durden presents several novel, unsupported theories to rebut this condemning

evidence. He admits that Morris sent text messages to his phone arranging a drug

transaction. But he contends that no evidence establishes he was actually the person

receiving those texts, and that someone else was in possession of his phone at the time. He

also suggests that phone calls between him and Morris concerning potential drug

transactions do not reveal that he was working with Morris; Morris was just seeking his

“advice.” A “reasonable trier of fact,” however, could readily conclude otherwise. Ford,

558 F.3d at 375.

14

Case: 19-30619 Document: 00515549745 Page:15 Date Filed: 09/02/2020

Case 5:17-cr-00173-EEF-MLH Document 609 Filed 09/02/20 Page 21 of 38 PagelD #:

15995

No. 19-30619

and Morris with five loaded guns in their car. Durden claims he played no role

in the attempted robbery. But, based on the foregoing evidence, the jury could

infer otherwise.

B. Drug Conspiracy Conviction

Durden separately challenges his drug-conspiracy conviction. To find

Durden guilty on this count, the jury had to find that there was an agreement

between two or more people to violate controlled-substance laws, that Durden

knew of the agreement, and that he voluntarily joined it. United States v.

Inocencio, 40 F.3d 716, 725 (5th Cir. 1994). As previously noted, overwhelming

evidence establishes that a primary purpose of the Block Boyz was selling

drugs. The jury was free to infer that that Durden voluntarily joined the Block

Boyz knowing this purpose. He discussed drug deals with Morris on the phone

and was instructed by Morris to complete a drug sale. Durden also helped

Morris hide drug-distribution evidence from police. This evidence is fatal to

Durden’s sufficiency challenge.

C. Drug Distribution Convictions

Counts 9, 10, and 11 indicted Morris with distributing erack in

connection with three controlled buys with Q.T., a government informant.

Morris contests the sufficiency of the evidence supporting these convictions.

He concedes that he participated in controlled-substance transactions. And he

acknowledges that, for a fee, he cooked powder cocaine into crack, then gave it

to Q.T. He argues, however, that the evidence shows only that he was a

middleman in a drug transaction for powder cocaine, not crack, then

subsequently cooked the powder into crack. Such conduct, he contends, does

not constitute “distribution of crack.”

Morris impermissibly narrows the definition of “distribute” to serve his

cause. The Controlled Substances Act defines “distribute” as “to deliver... a

controlled substance” and defines “deliver” and “delivery” as “the actual,

15

Case: 19-30619 Document: 00515549745 Page:16 Date Filed: 09/02/2020

Case 5:17-cr-00173-EEF-MLH Document 609 Filed 09/02/20 Page 22 of 38 PagelD #:

15996

No. 19-30619

constructive, or attempted transfer of a controlled substance.” 21 U.S.C.

§ 802(8), (11). “The term distribute is broader in scope than the term sale, and

means to deliver, other than by administering or dispensing.” United States v.

Ambriz, 727 F.3d 378, 383 n.6 (5th Cir. 2013) (quoting Fifth Circuit Pattern

Jury Instructions (Criminal) No. 2.87 (2012)). In light of these definitions,

there can be little dispute that Morris delivered crack to Q.T. on the charged

dates. Morris “actuall[ly] ... transfer[red],” 21 U.S.C. § 802(8), crack to Q.T.

when he cooked powder cocaine into crack for a fee and then handed the crack

to Q.T.

Moreover, the evidence established that Morris sold, and not merely

distributed, crack to Q.T. Morris knew that Q.T. wanted to buy crack, not

powder cocaine. Before the May 31 transaction at issue in Count 9, Q.T. had

bought crack from Morris. Q.T. asked Morris, before paying him, if he could

receive the cocaine in crack form, and they agreed on a price that included a

cooking fee before any money changed hands. Likewise, for both the June 8

and June 22 transactions, Q.T. asked Morris to provide the cocaine in crack

form before any money was exchanged. Q.T. also specifically requested that

Morris be the seller. And when questioned on cross-examination, Q.T. stated

that he paid Morris, not the individual who brought cocaine to Morris, and that

Morris gave him the drugs, not the third party. The evidence thus establishes

that Morris distributed crack to Q.T.

D. Felon-in-Possession-of-a-Firearm Conviction

The final sufficiency challenge comes from Durden and is directed at his

felon-in-possession-of-a-firearm conviction. To secure a conviction on this

charge, the government was required to show that that Durden was previously

convicted of a felony and was aware of his felon status, that he possessed a

firearm (actually or constructively), and that the firearm traveled in or affected

interstate commerce. See Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019);

16

Case: 19-30619 Document: 00515549745 Page:17 Date Filed: 09/02/2020

Case 5:17-cr-00173-EEF-MLH Document 609 Filed 09/02/20 Page 23 of 38 PagelD #:

15997

No. 19-30619

United States v. Guidry, 406 F.3d 314, 318 (5th Cir. 2005). Durden does not

dispute that he was previously convicted of a felony and that he knew as much;

nor does he dispute the interstate commerce element. He argues only that the

evidence was insufficient to establish that he knew about, and therefore

actually or constructively possessed, the loaded guns found in Morris’s car after

the attempted robbery on August 8, 2016. The jury, however, could infer from

the evidence that Durden and Morris together possessed the five loaded

weapons in Morris’s car.

Just weeks before the August 8 attempted robbery, Durden and Morris

discussed other robbery plans and plans to hide ammunition from the police.

Durden and Morris also discussed obtaining guns less than a week before the

August 8 robbery. And Durden asked Morris on the afternoon of the robbery,

“Whatcha want me to do with your gun?” One of the police officers who

arrested Morris testified that Durden, when confronted, tried to reach into the

backseat where one of the guns was found. The jury also heard one of Durden’s

co-conspirators tell Raphiel Wilson and Davenport that Durden and Morris

had been caught with guns in the car. The jury could infer that Durden had at

least the same level of knowledge as his co-conspirator, and could further infer

that Durden either actually or constructively possessed a firearm.

II. Vagueness Challenges to the Racketeering Statute

McCain and Morris argue that the RICO statute is unconstitutionally

vague both facially and as applied. Their facial challenge is foreclosed by

circuit precedent, and their as-applied challenge fails under plain error review.

Although we typically review the constitutionality of a federal statute de

novo, United States v. Martinez-Mata, 393 F.3d 625, 627-28 (5th Cir. 2004), an

unpreserved challenge is reviewed for plain error, requiring the defendant to

demonstrate error that is clear or obvious and that affected his substantial

rights. United States v. Anderton, 901 F.3d 278, 282-83 (5th Cir. 2018). Even

17

Case: 19-30619 Document: 00515549745 + Page:18 Date Filed: 09/02/2020

Case 5:17-cr-00173-EEF-MLH Document 609 Filed 09/02/20 Page 24 of 38 PagelD #:

15998

No. 19-30619

then, we have discretion to correct such errors only when they seriously affect

the fairness, integrity, or public reputation of judicial proceedings. See id.

Morris and McCain contend that the racketeering statute is

unconstitutionally vague—both on its face and as applied to them—because

“Itlerms such as ‘associated with, ‘enterprise, ‘conduct,’ ‘participate,’

‘indirectly, ‘affairs,’ and ‘pattern of racketeering activity’ provide no guidance

as to what conduct the statute prohibits.” They rely principally on

Justice Scalia’s concurrence in H.J. Inc. v. Northwestern Bell Telephone Co.,

492 U.S. 229, 109 S. Ct. 2893 (1989).7 However, this court long ago considered

and rejected a facial challenge to the RICO statute premised on Justice Scalia’s

HJ. concurrence. See Abell v. Potomac Ins. Co. of Ill., 946 F.2d 1160, 1164-67

& n.14 (5th Cir. 1991) (discussing the H.J. concurrence and collecting cases

rejecting vagueness challenges predicated on it); see also United States v.

Krout, 66 F.3d 1420, 1432 (5th Cir. 1995) (“This circuit has already specifically

rejected the facial challenge to the vagueness of ‘pattern of racketeering

activity.”). We recognize that today’s Supreme Court is not shy about

employing the vagueness doctrine to second-guess otherwise valid legislative

judgements. See, e.g., Sessions v. Dimaya, 138 S. Ct. 1204 (2018); Johnson v.

United States, 576 U.S. 591, 135 S. Ct. 2551 (2015). But our precedents remain

on the books, as does the Supreme Court’s rejection of a vagueness challenge

to a state RICO statute strikingly similar to the federal RICO statute. Fort

Wayne Books, Inc. v. Indiana, 489 U.S. 46, 58, 109 S. Ct. 916, 925 (1989) (“We

7 Justice Scalia’s concurrence targeted the Court’s definition of “the enigmatic term

‘pattern of racketeering activity.” H.J., 492 U.S. at 251, 109 S. Ct. at 2906 (Scalia, J.,

concurring). He did not discuss the other terms Morris claims are vague, including “conduct,”

“participate,” and “enterprise”; nor does Morris explain how those terms are vague other than

offering the conclusory allegation that they give “judges and law enforcement officials”

“unlimited discretion.” Because Morris did not adequately brief his broader statutory

challenge, the argument is waived. United States v. Whitfield, 590 F.3d 325, 346 (5th Cir.

2009).

18

Case: 19-30619 Document: 00515549745 Page:19 Date Filed: 09/02/2020

Case 5:17-cr-00173-EEF-MLH Document 609 Filed 09/02/20 Page 25 of 38 PagelD #:

15999

No. 19-30619

find no merit in petitioner’s claim that the Indiana RICO law is

unconstitutionally vague as applied to obscenity predicate offenses. Given that

the RICO statute totally encompasses the obscenity law, if the latter is not

unconstitutionally vague, the former cannot be vague either.”). These realities,

coupled with the defendants’ failure to cite a single decision supporting their

position, dooms the defendants’ facial challenge.

Similarly, the defendants fail to cite a single case where RICO was found

to be unconstitutionally vague as applied to any defendant under any set of

circumstances. The lack of legal authority makes it difficult, if not impossible,

for the defendants to establish plain error. See Anderton, 901 F.3d at 283.

Irrespective of that, the defendants’ claim fails on its merits. To

successfully mount an as-applied vagueness challenge to the RICO statute, a

defendant must “show this [clourt that the scope of [the] ‘pattern’ [(or other)]

element [i]s so unclear that a person of ordinary intelligence in [the

defendant’s] position would not have had adequate notice that his actions

constituted a” RICO offense. Abell, 946 F.2d at 1167. The defendants’

superficial arguments come nowhere close to making this showing. The

defendants joined a gang whose express purpose was to “get your money” by

illegal means. And the evidence established that Morris and McCain (and

their co-defendants) engaged in numerous illegal acts over several years. They

thus cannot reasonably argue that a person in their position would not have

known that the Block Boyz was a criminal enterprise engaged in a pattern of

racketeering activity.

III. Plain-Error Challenge to the Racketeering

Conspiracy Indictment

Durden alleges that the indictment for the racketeering conspiracy was

insufficient. He failed to preserve this challenge. We thus review the

19

Case: 19-30619 Document: 00515549745 Page: 20 Date Filed: 09/02/2020

Case 5:17-cr-00173-EEF-MLH Document 609 Filed 09/02/20 Page 26 of 38 PagelD #:

16000

No. 19-30619

indictment’s sufficiency for plain error. United States v. Hoover, 467 F.3d 496,

498 (5th Cir. 2006).

“To pass constitutional muster, an indictment must allege every element

of the crime charged and in such a way as to enable the accused to prepare his

defense and to allow the accused to invoke the double jeopardy clause in any

subsequent proceeding.” United States v. Pratt, 728 F.3d 463, 477 (5th Cir.

2013), abrogated on other grounds by Molina-Martinez v. United States,

136 S. Ct. 1838, 1347-48 (2016) (alteration removed) (internal quotation

marks and citation omitted). An indictment is sufficient if it describes the

offense using “the words of the statute itself’ “accompanied with such a

statement of the facts and circumstances as will inform the accused of the

specific offense.” Jd. (internal quotation marks and citation omitted). A

racketeering indictment, in particular, “need not contain formal charges of the

underlying racketeering activities or articulate the evidence that will be used

to prove the allegations.” Jd. at 478.

The count in the indictment Durden challenges, Count 1, spans fifteen

pages and includes the statutory language, identifies the Block Boyz as the

criminal enterprise, establishes the time period during which the Block Boyz

operated, names Durden’s co-conspirators, and lists the numerous state and

federal violations that constituted predicate offenses along with the coconspirator who performed each act and the date it was performed. Durden

nonetheless maintains this is insufficient. He argues that the indictment must

pinpoint when each specific defendant joined the conspiracy and provide a

“way of determining what activities conducted were part of the [conspiracy’s]

agreement.” This court has not required that a RICO indictment include such

specificity; nor does the Constitution. Instead, case law “requires only enough

specificity to allow the defendant to defend against the allegations.” Pratt,

728 F.3d at 478 & n.56. The indictment here easily clears that bar. It stated

20

Case: 19-30619 Document: 00515549745 Page: 21 Date Filed: 09/02/2020

Case 5:17-cr-00173-EEF-MLH Document 609 Filed 09/02/20 Page 27 of 38 PagelD #:

16001

No. 19-30619

when the conspiracy started and ended, and it identified numerous overt acts

committed by Durden and others. Cf. id. We refuse to adopt Durden’s offbeat

position.

IV. Plain-Error Challenge to the Drug Conspiracy Indictment

It is unclear whether Morris argues that the drug-conspiracy statute is

unconstitutionally vague or that the indictment was insufficiently specific. He

initially cites the standard of review for a constitutional challenge to a statute.

But the remainder of his argument section targets the indictment. Regardless

how his challenge is construed, it fails.

Morris never explains why the drug-conspiracy statute is

unconstitutionally vague and has thus waived this argument. See Whitfield,

590 F.3d at 346. But even if he had briefed it, we would reject it; Section 846

is not unconstitutionally vague. See United States v. Cooper, 606 F.2d 96, 98

(5th Cir. 1979) (per curiam).

As for Morris’s challenge to the indictment, this court has held that an

indictment charging a violation of 21 U.S.C. § 846 is sufficient if it uses the

words of the statute, names the statute, and specifies the conspiracy’s

duration. United States v. Khan, 728 F.2d 676, 681 (5th Cir. 1984). These

requirements were met here. Morris contends, however, that the indictment

did not identify which racketeering overt acts were in furtherance of the

Section 846 drug-distribution conspiracy. But an indictment need not allege

any overt act to sufficiently state a Section 846 conspiracy. Id.; see also United

States v. Gaytan, 74 F.3d 545, 552 (5th Cir. 1996) (“Nor is it fatal that the

indictment failed to identify specific criminal acts constituting the alleged

conspiracy.”). We see no error in the indictment, let alone one that is plain or

obvious.

21

Case: 19-30619 Document: 00515549745 Page: 22 Date Filed: 09/02/2020

Case 5:17-cr-00173-EEF-MLH Document 609 Filed 09/02/20 Page 28 of 38 PagelD #:

16002

No. 19-30619

V. Admitting Evidence of Johnson’s 2012 Shooting

Before trial, Johnson moved to exclude mention of his May 2012

shooting. The district court denied the motion, finding that the evidence was

intertwined with the charged conduct and that its probative value was not

substantially outweighed by the danger of unfair prejudice. The court also

rejected Johnson’s argument that the evidence was inadmissible because he

was seventeen at the time of the shooting. Johnson conceded that he was an

adult under state law at the time and “concede[d] there is no authority which

would preclude the use of this conviction based upon Johnson’s age at the time

of the shooting.” Johnson renewed the objection at trial, and the district court

again denied it.

He raises the same arguments on appeal, contending first that evidence

of the May 2012 shooting was inadmissible under Rule 404(b). The evidence,

however, was not admitted under that rule;® as the district court explained,

the shooting was intertwined with the charged RICO offense, and the jury was

free to infer that the shooting constituted a predicate racketeering act.

Johnson observes that the 2012 shooting was not expressly listed as an overt

act or predicate act in the indictment. But the evidence presented at trial need

not be limited to overt or predicate acts expressly listed in the indictment, so

long as the defendant has adequate notice. See United States v. Carlock,

806 F.2d 535, 550 (5th Cir. 1986). Here, Johnson had ample notice that the

government intended to introduce evidence of the shooting, which occurred

within the relevant period alleged in the indictment, as evidence intrinsic to

8 To be sure, the government moved to allow the introduction of the May 2012 shooting

pursuant to Rule 404(b). But it did so out of an abundance of caution, maintaining that the

shooting was “intrinsic to the charged conduct.” At a later hearing, the government asserted

that the shooting “occurred during the time period of the conspiracy” and should be

considered “a predicate racketeering act.” The district court agreed, concluding that the

May 2012 shooting was not “extrinsic evidence under [Rule] 404(b).”

22

Case: 19-30619 Document: 00515549745 + Page: 23 Date Filed: 09/02/2020

Case 5:17-cr-00173-EEF-MLH Document 609 Filed 09/02/20 Page 29 of 38 PagelD #:

16003

No. 19-30619

the charged conduct. We therefore consider Johnson’s challenge under the

deferential standard we apply to Rule 403 rulings. United States v. Clark,

577 F.3d 273, 287 (5th Cir. 2009) (“In reviewing Rule 403 findings, we give

great deference to the [trial] court’s informed judgment and will reverse only

after a clear showing of prejudicial abuse of discretion.”) (alteration in original)

(internal quotation marks and citation omitted).

This standard suggests no reason to reverse. The probative value of the

evidence is obvious: The jury could use it to infer the commission of a predicate

racketeering act. And the potential for unfair prejudice was relatively low

where, as here, Johnson’s shooting in 2012 was no more violent than his

involvement in the Kings Manor and Briarwood robberies, the latter of which

resulted in several injuries and a death.

Johnson also argues that the district court should not have admitted

evidence of the May 2012 shooting because he was seventeen years old at the

time and thus a juvenile for purposes of federal prosecution. This argument

fails for at least two reasons. First, the Juvenile Delinquency Act does not

apply to defendants like Johnson who are over twenty-one when indicted.

United States v. Guerrero, 768 F.3d 351, 361 (5th Cir. 2014) (citing 18 U.S.C.

§ 5031). Second, the Act applies only to an “act of juvenile delinquency,”

defined as a crime “committed by a person prior to his eighteenth birthday.”

18 U.S.C. § 5031. The May 2012 shooting relates to the crime of racketeering

conspiracy. Because Johnson “ratified his involvement in the conspiracy” after

he turned eighteen in July 2012, his participation in the conspiracy (including

the May 2012 shooting) was not an act of juvenile delinquency. Guerrero,

768 F.3d at 362 (citation omitted); see also id. (“Ratification in this context

simply means that a defendant ‘continu[es] to participate in an ongoing

conspiracy after his 18th birthday.”) (alteration in original) (quoting United

23

Case: 19-30619 Document: 00515549745 Page: 24 Date Filed: 09/02/2020

Case 5:17-cr-00173-EEF-MLH Document 609 Filed 09/02/20 Page 30 of 38 PagelD #:

16004

No. 19-30619

States v. Peters, 283 F.3d 300, 309 (5th Cir.2002)). The district court did not

err in allowing evidence of the May 2012 shooting to go before the jury.

VI. Challenge to the Verdict Form and Jury Instructions

Durden, McCain, Morris, and Johnson challenge the RICO conspiracy

verdict form, arguing it should have required the jury to identify the date or

location of specific predicate offenses.? Without such specificity, they argue, it

is impossible to assert sufficiency of the evidence claims.1° This is a novel,

legally unsupported argument. To the contrary, with an appropriate

unanimity instruction, this court has allowed even general verdict forms. E.g.,

United States v. Thompson, 253 F.3d 700, 2001 WL 498430, at *10 (5th Cir.

2001) (unpublished) (citing United States v. Shenberg, 89 F.3d 1461, 1472

(11th Cir. 1996)).

Here, the court provided more than just an unanimity instruction. It

first informed the jury that it must find that each “defendant agreed that a

conspirator would engage in a pattern of racketeering activity.” The district

court correctly defined “[a] pattern of racketeering activity,” to “require[] at

least two acts of racketeering,” and instructed the jury that its “verdict must

be unanimous as to which specific racketeering acts you find the defendant

agreed would be committed.” The verdict form asked the jury to identify the

type of predicate act for each defendant before reinforcing the unanimity

requirement, specifying that the jury was required to unanimously agree on

“at least two acts” and to the “specific event” involved. The district court

8 Because defense counsel objected to the exclusion of more specific information on the

verdict form, our review is for abuse of discretion. United States v. Piper, 912 F.3d 847, 853

(5th Cir. 2019). .

10 Durden’s own briefing, which analyzes each of the racketeering acts that the jury

could have possibly attributed to him, undermines this contention. The other defendants do

not even attempt such analyses.

24

Case: 19-30619 Document: 00515549745 Page: 25 Date Filed: 09/02/2020

Case 5:17-cr-00173-EEF-MLH Document 609 Filed 09/02/20 Page 31 of 38 PagelD #:

16005

No. 19-30619

observed that the defendants’ date-and-location request would be too onerous

for the jury and risked requiring the court to comment on the evidence by, for

example, stating that a particular defendant may have committed multiple

predicate offenses on a single day. Additionally, to alleviate any concern that

defendants might be convicted based on a single act, the court instructed the

jury, in the verdict form, that if a defendant committed a particular crime more

than once, the jury must agree as to the specific events that constituted a

racketeering act. We “presume[] that juries follow the instructions the court

gives them.” United States v. Owen, 683 F.3d 93, 99 (5th Cir. 2012).

Defendants supply no reason to second-guess that presumption here. The

thorough instruction provided by the district court coupled with the wide

discretion trial courts are granted to fashion verdict forms compel the

conclusion that the district court did not abuse its discretion.1

McCain additionally argues, for the first time on appeal, that the jury

instructions were plainly erroneous because they failed to state “that two acts

of racketeering do not necessarily constitute a pattern of racketeering activity.”

But the unobjected-to jury instruction accurately states this court’s long-held

definition of a pattern of racketeering activity. See United States v. Brown,

555 F.2d 407, 416 (5th Cir. 1977). McCain cites no authority supporting his

position, and our model jury instructions directly rebut it. See Fifth Circuit

Pattern Jury Instructions (Criminal) No. 2.79 (2019). The lack of contrary

authority is fatal to McCain’s plain-error claim. Anderton, 901 F.3d at 283.

4 Contesting this conclusion, Durden directs the court to United States v. Cain,

671 F.3d 271, 291 (2d Cir 2012). But that decision did not find error in the verdict form.

Instead, after finding instructional error, the Second Circuit could not determine whether it

was harmless “[b]ecause the verdict form . . . did not require the jury to identify the specific

predicate acts that supported its verdict.” Jd. No similar instructional error infected the

proceedings here.

25

Case: 19-30619 Document: 00515549745 Page: 26 Date Filed: 09/02/2020

Case 5:17-cr-00173-EEF-MLH Document 609 Filed 09/02/20 Page 32 of 38 PagelD #:

16006

No. 19-30619

VII. Racketeering Convictions and Double Jeopardy

Durden argues, for the first time on appeal, that his convictions for

racketeering and drug-distribution conspiracy violate the Double Jeopardy

Clause. This argument is foreclosed by circuit precedent.

The Double Jeopardy Clause, “at its core[,] prevents a defendant from

being tried more than once for a single offense.” United States v. Vasquez,

899 F.3d 363, 381 (5th Cir. 2018). But it “does no more than prevent the

sentencing court from prescribing greater punishment than the legislature

intended.” Missouri v. Hunter, 459 U.S. 359, 366, 103 S. Ct. 673, 678 (1983).

This court long ago determined that “Congress intended RICO conspiracy to be

a separate offense from the predicate act of a [controlled-substance]

conspiracy.” United States v. Deshaw, 974 F.2d 667, 672 (5th Cir. 1992). As

the court (correctly) explained in Deshaw, the racketeering “statutory language

reflects congressional intent to supplement, rather than supplant, existing

crimes and penalties.” Id. at 671-72. RICO and the statutes undergirding a

RICO indictment—in Durden’s case Section 846—“are intended to deter two

different kinds of activity.” Id. at 672. And “each provision”—Section 1962(d),

prohibiting racketeering conspiracies, and Section 846, prohibiting controlledsubstance conspiracies—‘“is unambiguous and authorizes punishment for a

violation of its terms.” Jd. Thus, “an indictment charging RICO predicates as

separate offenses is not multiplicitous.” United States v. Cauble, 706 F.2d

1322, 1351 (5th Cir. 1983). Durden fails to cite a single case countering this

broad swath of authority. We accordingly reject his double jeopardy challenge.

VIII. Sentencing and Double Jeopardy

Morris raises a separate double jeopardy concern. He argues that the

district court’s grouping of racketeering predicates under the sentencing

guidelines violated his double-jeopardy rights. Morris is mistaken. To

understand why, we first explain the rulings under review.

26

Case: 19-30619 Document: 00515549745 Page:27 Date Filed: 09/02/2020

Case 5:17-cr-00173-EEF-MLH Document 609 Filed 09/02/20 Page 33 of 38 PagelD #:

16007

No. 19-30619

Morris’s Presentence Report (“PSR”) grouped his racketeering,

controlled-substance, and felon-in-possession convictions pursuant to U.S.S.G.

§ 3D1.2. For racketeering convictions, the base offense level is the greater of

19 or the base offense level for the underlying racketeering activity. U.S.8.G.

§ 2E1.1(a). Where there is more than one underlying offense, each is treated

as a separate conviction and grouped under Chapter 3, Part D. Id. at cmt. n.1.

Morris’s racketeering conviction involved several controlled-substances

offenses, two attempted robberies (January 2014 and August 2016), and

several felon-in-possession offenses. Under U.S.S.G. § 3D1.2, the controlledsubstances offenses constituted one group and each attempted robbery

constituted its own group. The felon-in-possession convictions were included

as offense characteristics for the drug distribution group.

For Group 1 (the controlled-substance convictions), the PSR calculated a

total offense level of 34. For Group 2 (the January 28, 2014, attempted

robbery), the PSR calculated a total offense level of 33. And for Group 3 (the

August 8, 2016, attempted robbery), the PSR calculated a total offense level of

29. The PSR then assigned each offense group units under U.S.8.G. § 3D1.4(a)

and (b). Because Groups 1 and 2 were within one level of each other, each

received one unit. Group 3, which was five levels less than Group 1, received

a half unit. Pursuant to U.S.S8.G. § 3D1.4, two-and-a-half units results in a

three-level increase to the highest offense level. Thus, Morris’s offense level

became 37. With a criminal history category of V, Morris’s advisory guidelines

range was 324 to 405 months’ imprisonment, subject to certain statutory

maxima.

At sentencing, Morris contended that it violates the Double Jeopardy

Clause to be punished for both attempted robberies when those were

technically part of the racketeering count. The district court overruled Morris’s

objection, noting that the jury had found that Morris engaged in more than one

27

Case: 19-30619 Document: 00515549745 Page:28 Date Filed: 09/02/2020

Case 5:17-cr-00173-EEF-MLH Document 609 Filed 09/02/20 Page 34 of 38 PagelD #:

16008

No. 19-30619

attempted robbery and that “the calculation of a sentence under the guidelines

and the legal requirements for a conviction under RICO are separate matters

that the [clourt considers separately.” The district court then sentenced Morris

to 240 months’ imprisonment as to Counts 1 (RICO), 2 (conspiracy to distribute

controlled substances), 10 (distribution of crack cocaine), and 11 (distribution

of crack cocaine); 405 months’ imprisonment as to Count 9 (distribution of 28

or more grams of crack cocaine); and 120 months’ imprisonment as to Counts

12 and 15 (felon in possession of a firearm), with all sentences to run

concurrently.

Morris renews his double jeopardy argument on appeal. Because he was

only convicted of one racketeering count, he argues that the district court could

not consider racketeering predicates for three separate sentencing groups.

Morris is mistaken. The district court did exactly what the sentencing

guidelines require. See U.S.S.G. § 2E1.1; see also Prati, 728 F.3d at 479-80

(explaining how to apply U.S.S.G. § 2E1.1). More to the point, Morris has not

shown that he was punished twice for the racketeering conspiracy. He received

a single sentence of 240 months’ imprisonment, the statutory maximum.

Morris’s objection to the PSR’s grouping did not affect that sentence. With an

initial offense level of 34, his guidelines range would have been 235 to 240

months for Count 1, and he was sentenced within that range. While true that

his sentence for one of the drug-distribution convictions, Count 9, was higher

than it would have been had the district court considered just the Group 1

offenses (i.e., excluded the attempted robberies), the Supreme Court has

established that the “use of evidence of related criminal conduct to enhance a

defendant’s sentence for a separate crime within the authorized statutory

limits does not constitute punishment for that conduct.” Witte v. United States,

515 U.S. 389, 399, 115 S. Ct. 2199, 2206 (1995). Morris received sentences

28

[OCR skipped on page(s) 31-34]

[Read from a scan; the first 30 pages.]