Petition for Writ of Certiorari — Sidney Patterson, Petitioner v. United States
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Case: 16-30525
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Date Filed: 10/13/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-30525
D.C. Docket No. 2:13-CR-205-2
United States Court of Appeals
Fifth Circuit
FILED
October 13, 2017
Lyle W. Cayce
Clark
UNITED STATES OF AMERICA,
Vv.
Plaintiff - Appellee
SIDNEY PATTERSON,also known as Duda ManPatterson,
Defendant - Appellant
Appeals from the United States District Court for the
Eastern District of Louisiana
Before SMITH, OWEN,and HIGGINSON,Circuit Judges.
JUDGMENT
This cause was considered on the record on appeal andthebriefs onfile.
It is ordered and adjudged that the judgment of the District Court is
affirmed in part and reversedin part, and the cause is remanded to the District
Court for further proceedings in accordance with the opinion of this Court.
Patterson Cert. Petition Appendix 1a
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-30525
United States Court of Appeals
Fifth Circuit
FILED
October 13, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff—Appellee,
versus
BYRON JONES, Also Knownas Big Baby Jones;
DELOYD JONES, Also Known as Puggy Jones;
SIDNEY PATTERSON, Also Known as Duda Man Patterson,
Defendants—Appellants.
Appeals from the United States District Court
for the Eastern District of Louisiana
Before SMITH, OWEN, and HIGGINSON,Circuit Judges.
JERRY E. SMITH,Circuit Judge:
Byron Jones (“Byron”), Deloyd Jones (“Deloyd”), and Sidney Patterson
appeal their convictions of numerousfelonies related to their membership in a
group called Ride or Die (“ROD”). They challenge the sufficiency of the evidence and the admission of certain evidence, the refusal to adopt proposed jury
instructions, and application of the sentencing guidelines. We affirm, except
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with respect to Counts 9, 10, 18, and 14, as to which we reverse, and we remand
for resentencing.
I.
The government claimed that ROD, which operated in New Orleans’s
Eighth Ward, was a criminal gang whose members conspired to distribute
crack cocaine, possess firearms, and commit a variety of violent crimes for the
group’s benefit. The appellants and nine other alleged members of ROD were
charged with murder, assault, racketeering, drug trafficking, using a firearm
in the commission of a violent crime, and related offenses.! All except the
appellants pleaded guilty. The governmentaccused the appellants of violating
the Racketeer Influenced and Corrupt Organizations Act (“RICO”), the Federal
Gun Control Act, the Federal Controlled Substances Act, and the Violent
Crimesin Aid of Racketeering Act (“VICAR”). At trial, the prosecution focused
on six incidents: the February 24, 2010, murder of Travis Arnold and shooting
of Isaac Rowel; the April 29, 2010, shooting of Ernest Augustine; the
November9, 2010, murder of Rodney Coleman; the January 6, 2011, shooting
of Marquisa Coleman and Jimmy Joseph; the January 17, 2011, murder of
Devin Hutton, shooting of Victor Guy, and assault of Krystal Collier; and the
January 18, 2011, murder of Corey Blue.
The jury convicted all three appellants on the RICO, drug-trafficking
conspiracy, and gun-conspiracy counts; convicted Byron and acquitted Patter-
son on counts relating to the Arnold murder; convicted Byron on countsrelating to the Augustine shooting and determined that the gun was discharged;
acquitted Deloyd on counts relating to the Rodney Coleman murder; convicted
1 The indictmentlists thirty-three overt acts in which one or more of the appellants
allegedly participated.
2
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Deloyd on countsrelating to the shooting of Marquisa Coleman and Joseph and
determined that the gun was discharged; convicted Deloyd on countsrelating
to the Hutton murder and the assaults of Guy and Collier; and convicted
Deloyd and Patterson on counts relating to the Blue murder. The district court
sentenced all three appellants to life imprisonment and consecutive sentences
of 120 months’ and 300 months’ imprisonmentfor using firearms in furtherance of their crimes. See 18 U.S.C. § 924(c).
II.
On the sufficiency challenge, “we view the evidence andall inferences to
be drawn from it in the light most favorable to the verdict to determine if a
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” United States v. Delgado, 401 F.3d 290, 296 (5th
Cir. 2005) (quoting United States v. Posada-Rios, 158 F.3d 832, 855 (5th Cir.
1998)). Because appellants movedfor acquittal at trial, our review is de novo
but “highly deferential to the verdict.”
United States v. Beacham, 774 F.3d
267, 272 (5th Cir. 2014) (quoting United States v. Isgar, 739 F.3d 829, 835 (5th
Cir. 2014)).
Count 1 (RICO Conspiracy)
The evidenceis sufficient on the RICO convictions. Conspiracyto violate
any of RICO’s substantive provisions is a crime. See 18 U.S.C. § 1962(d). “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 agreedto the overall objective of the RICO offense.” Posada-Rios,
158 F.3d at 857-58. “The 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. at 857. A co-conspirator needs
only to have knownof, and agreed to, the overall objective of the RICO offense.
3
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Salinas v. United States, 522 U.S. 52, 61-66 (1997).
The substantive RICO provision prohibits “any person employed by or
associated with any enterprise engaged in, or the activities of which affect,
interstate commerce or foreign commerce, to conduct or participate, directly or
indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.” § 1962(c). The government
must prove that (1) such an enterprise existed; (2) the activities of the enter-
prise affected interstate or foreign commerce; (3) the defendant was “employed
by” or “associated with” the enterprise; (4) the defendant participated in the
conduct of the enterprise’s affairs; and (5) the participation was through “a
pattern of racketeering activity.” Posada-Rios, 158 F.3d at 855.
The statute defines “enterprise” to include “any individual, partnership,
corporation, association, or other legal entity, and any union or groupofindi-
viduals associated in fact althoughnot a legal entity.” § 1961(4). RICO reaches
“a group of persons associated together for a common purpose of engaging in a
course of conduct.”
United States v. Turkette, 452 U.S. 576, 583 (1981). To
establish the existence of an enterprise, the government must present “evi-
dence of an ongoing organization, formal or informal, and... that the various
associates function as a continuing unit.” Id. The term “enterprise” encompasses “an amoeba-like infra-structure that controls a secret criminal network”
as well as “a duly formed corporation that elects officers and holds annual
meetings.” United States v. Elliott, 571 F.2d 880, 898 (5th Cir. 1978). A jury
may “infer the existence of an enterprise on the basis of largely or wholly
circumstantial evidence.” Id.
The government claims that ROD was an informal, association-in-fact
enterprise. “[T]he very concept of an association in fact is expansive,” but it
“must have at least three structural features: a purpose, relationships among
4
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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 (2009).
The government points to the various crimes that appellants allegedly
committed as evidence of a “pattern of racketeering activity.” The term “racketeering activity” encompasses a wide range of state and federal offenses,
including murder, robbery, extortion, and drug-dealing. § 1961(1). A “pattern
of racketeering activity” exists where an offender has committed at least two
acts of racketeering activity within ten years. § 1961(5).
Appellants challenge this charge on three grounds. First, they claim that
ROD was not an enterprise.
Patterson describes ROD members as “lone
wol[ves]” and cites testimony denying that ROD members shared money,
drugs, or guns.2 One former membertestified that “Ride or Die is just a bunch
of young men whoreally like hanging out.”
That is inaccurate. ROD had a clear purpose—selling drugs and protecting those drug sales and the group’s members—and its members were
associated with one another. Members used a house on Mandeville Street to
store guns and drugs and to prepare and package the drugsfor resale, working
in shifts. The ownerof the housetestified that on at least one occasion, mem-
bers pooled their money to buy crack for resale. A former membertestified
that members sold drugs at specific locations, that only members couldsell
drugsin certain territories, and that members stashed gunsfor other members’
use. Members committed a large numberof violent crimes alongside other
members.
The evidence, which included hours of testimony from law-
2 Byron concedes that “there may have been pooling of resources, mutual access to
firearms, or protection of turf.”
3 Appellants do not dispute that ROD had sufficient longevity to qualify as an
5
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enforcement officers and former members, wassufficient for the jury to conclude that ROD fell within RICO’s expansive definition of “enterprise.”
Second, appellants claim that several of the criminal acts they committed during ROD’s existence were unrelated to ROD and therefore were not
part of a pattern of racketeering activity. But appellants’ theories on this point
are conclusional. Byron notes only that “[t]he government... failed to establish through any competent evidence that [Byron’s criminal convictions] and
[the government’s] allegations are related to any commonpurpose other than
establishing the criminality of Byron Jones.” Patterson contends that one of
the traffic stops mentioned in the indictment was unrelated to ROD. No appellant casts serious doubt on the government’s claim that appellants committed
at least two predicate acts in furtherance of a RICO conspiracy. The government presented sufficient evidence that appellants engaged in a pattern of
racketeering activity.
Finally, Byron suggests that even if the other appellants committed
crimes on behalf of ROD, he did not.
He notes that to establish that ROD
members had a common purpose, the governmentrelied heavily on testimony
about the house on Mandeville Street, which ROD controlled while Byron was
in prison. But the governmentalso presented evidence that ROD behavedlike
a gang long before it took over that house (at which time Byron wasalready an
ROD member): controlling territory, sharing resources, and engagingin violence to promote the organization’s interests.
Count 2 (Drug Distribution Conspiracy)
Appellants challenge their convictions of conspiring to distribute controlled substances. To establish a drug-trafficking conspiracy, the government
association in fact.
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must show “(1) the existence of an agreement between two or more persons to
violate narcotics laws, (2) knowledge of the conspiracy and intentto join it, and
(3) voluntary participation in the conspiracy.” United States v. Nieto, 721 F.3d
357, 367 (5th Cir. 2013). The government may prove an agreement by demonstrating the coconspirators’ concert of action with respect to distribution of
drugs.
The government presented sufficient evidence to establish that appellants participated in a drug-trafficking conspiracy. Witnessestestified that
Byron and Patterson packaged drugs, sold drugs, and committed violent
crimes to defend and expand ROD’s drug-selling territory. The government
presented less evidence of Byron’s handling of drugs but showed that he committed crimes to support the conspiracy. For example, Byron’s alleged murder
of Travis Arnold allowed RODto sell drugs in an area of Mandeville Street that
it could not previously reach.
Count 3 (Conspiracy to Possess Firearms)
Appellants were convicted of conspiracy to possess firearms in furtherance of either the RICO conspiracy charged in Count 1, the drug-trafficking
conspiracy charged in Count 2, or both, in violation of 18 U.S.C. § 924(o).
Patterson claims that he used guns for “personal protection” and notes that
none of the government’s witnessestestified that the witness saw Patterson
using a firearm in furtherance of a conspiracy. Similarly, Byron claims that
although he had guns, he did not use them in furtherance of a conspiracy.
To the contrary, there was plenty of evidence tying appellants’ firearm
use to the charged conspiracies.
For example, Patterson used a firearm in
4 United States v. Mitchell, 484 F.3d 762, 769 (5th Cir. 2007); see also United Statesv.
Inocencio, 40 F.3d 716, 725 (5th Cir. 1994) (“A conspiracy agreement maybetacit, and the
trier of fact may infer an agreement from circumstantial evidence.”).
7
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connection with the shooting of Joseph and Coleman and that Byron used a
firearm in the murderof Travis Arnold. Sufficient evidence was presented to
convict appellants of both crimes, as discussed below. More generally, guns
were ubiquitous at ROD gatherings. A former member of RODtestified that
ROD had so many gunsin the Eighth Ward that “[a]Jnywhere you went there
was a gun around.”
Another former membertestified that all male ROD
members used guns, which were necessary to the RICO and drug-trafficking
conspiracies. Without them, ROD would not have been able to defend and
expandits territory. The evidence supports the convictions on Count3.
Counts 5—8 (Arnold/Rowel Shooting)
In February 2010, someone in a car shot Arnold in the head and Isaac
Rowelin the shoulder while Arnold and Rowel were at a stoplight. Arnold died
from his injuries; Rowel survived. Rowel eventually identified Byron as the
driver and said that, just before the shots, he saw Byron “rocking back and
forth” and lookingin his direction. Rowel also saw another person in Byron’s
car whom he wasunable to identify. Arnold’s nephew, Darry] Arnold,testified
that Byron told him before the shooting that he was “goingto kill Travis and
make you cry.” Then, after the shooting, Byron told Darryl that Byron was
“the new [B]east,” a reference to Travis’s nickname.
On Count5, the jury convicted Byron of “murderin aid of racketeering”’—
that is, that he had murdered Arnold to benefit ROD, in violation of Louisiana’s
second-degree-murder statute, LA. REV. STAT. ANN. §§ 14:30.1(A)(1) and 24,
and the federal VICARstatute, 18 U.S.C. § 1959(a)(1) and (2).5 Louisiana
5 Section 1959(a) provides that “[w]hoever ... for the purpose of gaining entranceto
or maintaining or increasing position in an enterprise engaged in racketeeringactivity ...
murders... any individualin violation of the laws of any State or the United States... shall
be punished... .”
8
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defines second-degree murderas killing with the specific intent to kill or inflict
great bodily harm. See LA. REV. STAT. ANN. § 14:30.1(A)(1). Louisianaclassifies as principals “[a]ll persons concerned in the commission of a crime,
whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission,or directly or indirectly
counsel or procure another to commit the crime.” § 14:24. To establish that a
defendant has violated VICAR, the government must show that (1) an enter-
prise existed; (2) the enterprise engaged in,or its activities affected, interstate
commerce; (8) it was engaged in racketeering activity; (4) the defendant committed violent crimes; and (5) the defendant committed the violent crimes to
gain entrance to, or maintain or increasehis position in, the enterprise.®
On Count 6, the jury convicted Byron of causing death through the use
of a firearm in violation of 18 U.S.C. § 924(j), which imposes additional penalties on defendants whousea firearm to kill during the commission of a violent
or drug-trafficking crime. On Count 7, the jury convicted Byron of assault with
a dangerous weaponin aid of racketeering, in violation of Louisiana’s aggravated-assault statute’ and VICAR. On Count8, the jury convicted Byron of
using a firearm in relation to a violent crime or a drug-trafficking crime, in
violation of 18 U.S.C. § 924(c)(1)(A). To establish a violation of § 924(c)(1)(A),
the government must show that the defendant (1) committed a violent crime
or trafficked drugs and (2) knowingly used or carried firearms during and in
relation to that crime. The government claims that Byron discharged a gun
in furtherance of either the RICO conspiracy charged in Count 1 or the drug
6 See PATTERN CRIM. JURY INSTR. 5TH CIR. 2.78 (2015).
7 See LA. REV. STAT. ANN. § 14:37(A), defining aggravated assault as “an assault committed with a dangerous weapon.”
8 See PATTERN CRIM. JURY INSTR. 5TH CIR. 2.44 (2015).
9
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conspiracy charged in Count 2.
Byron challenges those convictions on the ground of insufficient evidence
tying the alleged murder and assault to his supposed participation in a racketeering enterprise. To the contrary, there is evidence, described above (in-
cluding Byron’s reference to Travis’s nickname “the Beast”), that Byron murdered Arnold and assaulted Rowel in furtherance of the charged RICO and
drug conspiracies.?
Counts 9-10 (Augustine Shooting)
Ernest Augustine was shot five times while sitting in his truck.
He
survived. Though he did not see who shot him, someoneelse did: Terrance
Paul testified that he was standing on his mother’s porch, across the street
from Augustine’s truck, when he saw Byron approach the truck and begin
shooting. A firearms experttestified that the spent bullets and casings were
fired from the gun that Byron discarded during a police stop two weeksafter
the shooting. The jury convicted Byron of assault with a dangerous weapon in
aid of racketeering, in violation of Louisiana’s aggravated-assault statute and
VICAR (Count9), and of discharging a firearm duringandin relation to a crime
of violence or a drug-trafficking crime, in violation of § 924(c)(1)(A) (Count 10).
Byron claims that the governmentfailed to prove that he was the shooter
or that the shooting was related to his membership in ROD. Althoughthere is
enough evidencefor a jury to find, beyond a reasonable doubt, that Byron shot
Augustine, the evidenceis insufficient as to how the shooting relates to Byron’s
membership in ROD or the charged conspiracies. Accordingly, we reverse
Byron’s convictions on Counts 9 and 10.
9 The government charged Byron and Patterson under Counts5, 6, 7, and 8, but the
jury found only Byron guilty.
10
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Counts 13-14 (Rodney Coleman Murder)
On January 6, 2011, Marquisa Coleman confronted Deloyd inside a
store. They got into a heated argument over whether Deloyd had murdered
Coleman’s son, Rodney. Coleman, along with JimmyJoseph,left the store soon
thereafter and began walking home. Whenthey were about a block away from
the store, they noticed that two people were following them. Then, someone
emerged from behind a truck and started shooting. Coleman got shot multiple
times and was badly injured; a bullet grazed Joseph’s head, but he was not
seriously hurt.
Joseph implicated Patterson and Deloyd in the shooting. Hetestified
that he thought Patterson was the shooter because the shooter had a deformed
arm like Patterson’s. Joseph described Deloyd as “a director of some sort” and
testified that as he was lying on the ground after being shot, he heard Deloyd
say, “No, don’t shoot him. Shoot the bitch.”
There were inconsistencies in both victims’ testimonies. Joseph wasinitially unable to identify the shooter but later told police that Patterson had
shot him, something that he repeated in his testimony. But at trial, he said
that he could not identify the shooter, adding that he “d[id]n’t even wantto be
here today.” Coleman, whoalsotestified that Patterson was the shooter,ini-
tially told the police that Deloyd had been the shooter. In connection with the
shooting, the jury convicted Patterson and Deloyd of assault with a dangerous
weapon in aid of racketeering, in violation of Louisiana’s aggravated-assault
statute and VICAR (Count 138), and of discharging a firearm during and in
relation to a crime of violence or a drug-trafficking crime, in violation of
§ 924(c)(1)(A) (Count 14).
The governmentpresentedsufficient evidence that Deloyd and Patterson
committed the shooting. But, as with Counts 9 and 10, there is insufficient
11
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proof regarding the relationship between the shooting and RODorthe charged
conspiracies and thus a failure of proof on how the shooting was in “aid of
racketeering.” We reverse the convictions on Counts 13 and 14.
Counts 15-18 (Marquisa Coleman and Jimmy Joseph Shooting)
On January 17, 2011, Victor Guy was walking with a friend when he was
approached by three assailants who were wearing scarves over their mouths.
One put a gun to Guy’s head, walked him to Devin Hutton’s apartment, and
told him to knock on the door.
After Hutton opened the door, two of the
assailants rushed into Hutton’s apartment while the third stayed with Guy.
Guy heard one of the assailants yell, “Where’s it at? Where is the money?
Where’s the drugs?” Then Guy heard a gunshot and ran away. Guy was shot
eight times while trying to escape.
Theassailants also put a gun to Krystal Collier's head after she stumbled
into the middle of the altercation. She identified Deloyd as the assailant who
put the gun to Guy’s head, stayed behind while the other two went into Hut-
ton’s apartment, and shot Guy as he wastrying to escape. Though Collier did
not see what happened in the apartment, she did hear one of the mensay,
“Fuck it. Just kill him. Tell Pooky the riders came through.” One of Hutton’s
friends, who wasin his apartment whentheassailants burst in, confirmed that
two men with guns came into the apartment and shot Hutton, who died ofhis
wounds. The jury convicted Deloyd of murder in aid of racketeering, in violation of Louisiana’s second-degree-murder statute and VICAR (Count 15);
causing death throughthe useof a firearm,in violation of § 924g) (Count 16);
assault with a dangerous weaponin aid of racketeering, in violation of Louisiana’s aggravated-assault statute and VICAR (Count 17); and discharging a
firearm duringandin relation to a crime of violence or a drug-trafficking crime,
in violation of § 924(c)(1)(A) (Count 18).
12
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Deloyd inaccurately claims that the government failed to establish a
connection between the alleged crimes and ROD. It is obvious that the murder
had something to do with ROD’s drug operations.
After all, according to
Collier’s testimony, the assailants asked Hutton about drugs and moneybefore
shooting him on behalf of “the riders.”
Counts 19-20 (Blue Murder)
On January 18, 2011, Corey Blue was murdered outside his house. His
cousin, Kevin Johnson, testified that he was at Blue’s house that night.
According to Johnson, Blue went outside after receiving a phone call. Before
long, Johnson heard gunshotsandran to the front door. As Johnson wascrossing the threshold, Patterson shot in his direction, though Johnson wasnothit.
Johnson indicated that Patterson was accompaniedby at least one other man,
who, along with Patterson, got into a car and drove away.
Jamal Holmestestified that while he and Patterson were sharinga cell
at the parish jail, Patterson admitted to “put[ting] the work in on Corey Blue”
along with Deloyd and someone namedShelly. Holmesalsotestified that when
he told Deloyd, “Y’all shook up the Eighth Ward wheny’all killed Blue,” Deloyd
responded, “Yeah, I punished him.”
The owner of the house on Mandeville Street testified that the night Blue
was killed, Deloyd, Patterson, and some other ROD memberswereat the house
packaging drugs when they realized that their package was short. Deloyd,
Patterson, and an unidentified woman left for thirty minutes.
When they
returned, Deloyd said that he had just “punished” someone. The owner, who
later heard from other ROD members that Deloyd and Patterson had killed
Blue, noticed that after they returned, Deloyd and Patterson put on new
T-shirts, and another ROD membercleaned their guns with bleach. The jury
convicted Patterson and Deloyd of murderin aid of racketeering, in violation
13
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of Louisiana’s second-degree-murder statute and VICAR (Count 19), and of
causing death throughthe use of a firearm,in violation of § 924(G) (Count 20).
Appellants question the reliability of the government’s witnesses and
claim that the prosecution has not shown that the murder was related to
appellants’ membership in ROD.
The evidence, however, including the
evidence that Deloyd “punished” Blue in relation to ROD’s drug trade, was
enough for a jury reasonably to conclude that Deloyd and Patterson murdered
Blue in furtherance of the RICO and/or drug conspiracies.
IIT.
A.
Appellants objected to the introduction of certain recorded phonecalls
made by inmates and authenticated by third parties. Government witnesses
identified all three appellants as among the speakers. The parties stipulated
that the recordings were of authentic Orleans Parish Prison inmate calls. But
appellants claim that the speakers were not properly identified, so the district
court erred by admitting the recordings. In addition, Patterson claims that
some of the recordings included hearsay or were otherwise inadmissible.
Wereview evidentiary determinations, including the identification of
recorded speakers, for abuse of discretion. See United States v. Garza, 591 F.
App’x 259, 260 (5th Cir. 2015) (citing United States v. Girod, 646 F.3d 304, 318
(5th Cir. 2011)). “A trial court abusesits discretion when its ruling is based on
an erroneous view of the law or a clearly erroneous assessment of the evi-
dence.” United States v. Ragsdale, 426 F.3d 765, 774 (5th Cir. 2005) (quoting
Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003)).
When a recording is at issue, a “witness’s familiarity with the voice
sought to be identified, whether the familiarity developed before or after the
14
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time of the recording, is sufficient to ensure reliable voice identification.”
United States v. Biggins, 551 F.2d 64, 68 (5th Cir. 1977). A witness does not
need to have a close relationship with the speaker; “some familiarity” is sufficient.
United States v. Thomas, 690 F.3d 358, 372 (5th Cir. 2012) (quoting
United States v. Cuesta, 597 F.2d 908, 915 (5th Cir. 1979)). A law enforcement
agent may identify a voice with which heis familiar. United States v. Norman,
415 F.3d 466, 472 (5th Cir. 2005).
The governmentrelied on three witnesses to identify the speakersin the
recorded jail calls: former ROD members Andrealie Lewis and Erick Garrison,
and ATF Agent Jennifer Doreck. Lewis and Garrison explained that they recognized manyof the voices in the recordings from personal experience, though
they were unable to identify every voice. Lewis also testified that she knew
that some of the calls were from Deloyd because the jail phone system identified him as the caller. Though Doreck was not personally familiar with the
speakers, she was able to identify their voices based on the folder numbers
assigned to the inmates makingthe calls, the phone numbersofcall recipients,
the speakers’ self-identification or identification of other speakers, discussions
with governmentcooperators, and her knowledge of relevant events. She also
familiarized herself with appellants’ voices by listening to hundreds of their
phonescalls; some shelistened to repeatedly.
Lewis, Garrison, and Doreck had foundation to identify the speakers in
the recordings. The law requires only that an identifying witness has some
familiarity with a speaker’s voice, Thomas, 690 F.3d at 372, something that
each of the identifying witnesses had. Lewis and Garrison knew the speakers
they identified personally. Doreck familiarized herself with the voices, as explained above. Patterson observes that the court denied his request to require
Doreck to identify each appellant’s voice from a blind recording. But he does
15
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not cite any caselaw suggesting that the denial of a request to traverse a
witness is an abuse of discretion.
Patterson’s other theoriesrelating to the decision to admit the recordings
are no more convincing. He claims that some of his conversations were inadmissible hearsay. But his statements during these calls were admissions of a
party opponent under Federal Rule of Evidence 801(d)(2)(A), and the othercall
participants’ statements were admissible to provide context. See United States
v. Dixon, 1382 F.3d 192, 199 (5th Cir. 1997).
Patterson claims that a conversation he had with an associate, which the
court admitted, was irrelevant because it involved his attendance at an anger-
management class. In the conversation, Patterson says that he would be risking his life by going to an anger-managementclass and that, before he went to
prison, he “had to stash” something. The conversation is hard to follow but
sheds somelight on Patterson’s criminal activities and is therefore relevant.
Finally, Patterson claims that the court erred by allowing Doreck to
testify about the content of some of the recordings, which allowed her “to get
in additional testimony that prejudiced the Defendants and imply they were
admitting to crimes for which they were on trial.” But that testimony was
elicited by defense counsel during cross-examination. The district court did
not plainly err by admittingit.
B.
The government introduced evidence of appellants’ convictions, including somethat occurred before they turned eighteen. The government claimed
that the convictions were admissible as evidence that appellants had engaged
in racketeering activity.!° The governmentalso called a police officer to testify
10 See United States v. Erwin, 793 F.2d 656, 670 (5th Cir. 1986) (‘In a subsequenttrial
16
Patterson Cert. Petition Appendix 17a
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Document: 00514195708
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Date Filed: 10/13/2017
No. 16-30525
about a traffic stop at which the officer found crack cocaine on Patterson when
Patterson was a juvenile; a second officer to testify that she found a firearm on
Byron during a traffic stop when Byron was a juvenile; and a thirdofficer to
testify about anothertraffic stop involving a then-underage member of ROD
(though not oneof the appellants). Patterson claims that the court should have
instructed the jury that it could not consider events that took place when
appellants were minors.
Both sides agree that this issue is subject to plain-error review. “To
demonstrate plain error, an appellant must show (1) a forfeited error, (2) that
is clear or obvious, and (3) that affects the appellant’s substantial rights.”
United States v. Moreno, 857 F.3d 723, 727 (5th Cir. 2017) (brackets and
internal quotation marks omitted). Even then, the court may correct the error
“only if the error seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings.” Jd. (quoting Puckett v. United States, 556 US. 129,
135 (2009)).
The court did not plainly error by admitting the evidence of juvenile
misconduct, because any error was not clear or obvious, meaning settled by
“the time of appellate review.” See Henderson v. United States, 568 U.S. 266,
268 (2013). As Patterson acknowledges, we have never determined whether a
court is required to instruct the jury to disregard evidence of a defendant’s
juvenile misconduct. In United States v. Harris, 740 F.3d 956, 966 (5th Cir.
2014), we declined to settle the issue and noted that the othercircuits are split.
To the extent any error occurred, it could not have been “plain.” Id.
for RICO, the government may count, as a predicate offense, a defendant's prior conviction
for an offense falling within the definition of ‘racketeering activity.”).
17
Patterson Cert. Petition Appendix 18a
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Document: 00514195708
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Date Filed: 10/13/2017
No. 16-30525
C.
In the middle of trial, appellants were brought to a holdingcell in the
courthouse. Witnesses Sean Watts and Darryl Arnold were in a nearby holding
cell; both had already testified.
According to the government, Deloyd shot
Watts in 2009, but in his testimony, Watts said that he could not identify his
shooter. Arnold proved more helpful to the government’s case, going so far as
to accuse Patterson and Byronof killing his uncle, Travis Arnold.
Meanwhile, according to Jamal Holmes, who wassitting in a cell in
another room, appellants soon began talking to Watts and Arnold. Holmes
says that he heard the conversation through air vents and recognized Deloyd’s
and Patterson’s voices. Holmes says that appellants praised Watts andcriticized Arnold. Allegedly, Deloyd told Watts, “[Y]ou kept it real” and “God bless
you” and Watts responded, ‘I ain't going to help the government sink you.
I ain't helping them sink y’all boys.” 33 Then, according to Holmes, appellants
repeatedly called Arnold a “rat” and accused him of not “keep[ing] it real.”
Apparently, other witnesses who had notyet testified were nearby and could
hear appellants’ comments.
The government claims that the comments to
Arnold were threats meant to intimidate Arnold and the other witnesses.
The government sought to introduce Holmes’s testimony on the grounds
that the statements were relevant, highly probative, and indicative of appellants’ knowledge, intent, and consciousness of guilt. In admitting the testimony over appellants’ objections, the district court did not abuse its discretion
by admitting the testimony.
Although we review evidentiary determinations for abuse of discretion,
a heightened standard applies where, as here, the evidence is admitted under
Federal Rule of Evidence 404(b). United States v. Wallace, 759 F.3d 486, 493
(5th Cir. 2014). Under Rule 404(b), evidence relating to a defendant’s alleged
18
Patterson Cert. Petition Appendix 19a
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Document: 00514195708
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Date Filed: 10/13/2017
No. 16-30525
prior bad act is not admissible to show that he has bad character but is admissible for other purposes. Evidence of a prior bad act is admissible if (1) it “is
relevant to an issue other than the defendant’s character” and (2) its probative
value “is not substantially outweighed by its undue prejudice” and admitting
the evidence is otherwise consistent with Federal Rule of Evidence 403. United
States v. Beechum, 582 F.3d 898, 911 (5th Cir. 1978) (en banc).
Appellants contend that the risk of unfair prejudice from Holmes’stestimony substantially outweighed whatever probative value it may have had.
They claim that the testimony wasnot very probative because it had no bearing
on the underlying charges and occurred two years after the charged crimes,
and they note that evidence of threats or intimidation could have colored the
jury’s view of the appellants.
Wedisagree.
The alleged statements were probative insofar as they
tended to establish appellants’ knowledge, intent, and consciousnessof guilt.
Though the testimony was prejudicial, the court’s conclusion that the danger
of unfair prejudice did not substantially outweigh the evidence’s probative
value was reasonable. Evidence of witness intimidation may be admissible. !!
Moreover, “[iJn reviewing the balancing undertaken by the district court, we
give great deference to the court’s informed judgment and will reverse only
after a clear showing of prejudicial abuse of discretion.”
Rocha, 916 F.2d
at 241. Appellants have not made such a showing. !2
11 See, e.g., United States v. Mosley, 206 F. App’x 365, 366 (5th Cir. 2006) (per curiam);
United States v. Sandoval, 1995 WL 337738, at *3 (5th Cir. 1995) (unpublished); United
States v. Rocha, 916 F.2d 219, 241 (5th Cir. 1990).
12 At the very least, the testimony wasrelevant to appellants’ consciousness of guilt.
Rocha, 916 F.2d at 241 (“Evidence of a threat by a defendant respecting a specific adverse
witness indicates that the defendant was conscious of the weaknessof his case; such evidence
creates a compelling inference that the defendant’s case lacks merit.”).
19
Patterson Cert. Petition Appendix 20a
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Document: 00514195708
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No. 16-30525
Patterson claims that Holmes’s testimony wasbased on a false premise:
that appellants had threatened Darryl Arnold. Though appellants repeatedly
called Arnold a “rat,” Patterson suggests that those statements were nonthreatening. Appellants’ statements to Arnold could be understood as innocent
criticism rather than as threats. But given that a trial court’s assessmentof
the evidence must be “clearly erroneous” to constitute an abuse of discretion,
the district court’s characterization of appellants’ statements did not amount
to an abuse of discretion. Ragsdale, 426 F.3d at 774.
Appellants question the factual basis for Holmes’s testimony. They note
that no other witnesses were able to verify Holmes’s version of events, leaving
the jury with nothing to go on except Holmes’s word. But extrinsic-offense
evidence is admissible so long as “there is sufficient evidence for the jury to
find that the defendant in fact committed the extrinsic offense.” Beechum,
582 F.2d at 913. Appellants cite no cases suggesting that a witness’s testimony
about an extrinsic offense is insufficient to establish that the offense occurred.
D.
In February 2011, Byron pleaded guilty to a state charge of seconddegree murder, as an accessory after the fact, in connection with the killing of
Travis Arnold. Federal prosecutors then charged Byron as a principal in the
murder of Arnold (Count 5) and the assault of Rowel (Count 7). Byron requested a jury instruction explaining the meaning of “accessory after the fact”
or “parties to a crime” to ensure that the jurors did not take his state court,
accessory-after-the-fact guilty plea as evidence of his principal liability. The
court did not provide such an instruction, and the jury convicted Byron on both
counts.
Byronsays that the lack of a properinstruction left jurors confused about
the mental state necessary for a conviction. For support, he points to the jury’s
20
Patterson Cert. Petition Appendix 21a
Case: 16-30525
Document: 00514195708
Page: 21
Date Filed: 10/13/2017
No. 16-30525
multiple requests for clarification. He cites no caselaw.
In denying Byron’s motion for newtrial, the court conceded thatits failure to give the “accessory after the fact” instruction waserror but asserted that
any error was harmless because attorneys on both sides “repeatedly explained
to the jury the distinction between Byron’s state-court, accessory-after-the-fact
guilty plea and the fact that Byron was charged with being a principal under
Louisiana law in the federal crimes for which he wasontrial.” Byron claims
that the attorneys’ comments duringtrial did not cure the prejudice created by
the improperinstruction.
In general, we review a district court’s refusal to provide a requested
instruction for abuse of discretion. See United States v. Sheridan, 838 F.3d
671, 672 (5th Cir. 2016). We consider whether the requested instruction “(1) is
substantively correct; (2) is not substantially covered in the charge given to the
jury; and (3) concerns an importantpointin the trial so that the failure to give
it seriously impairs the defendant's ability to present effectively a particular
defense.” Id. at 673 (quoting United States v. Simkanin, 420 F.3d 397, 410 (5th
Cir. 2005)). We “may reverseonly if the defendant was improperly denied the
chance to convey his case to the jury.” United States v. Hunt, 794 F.2d 1095,
1097 (5th Cir. 1986).
The government concedes that Byron’s requested “accessory after the
fact” instruction was “a correct statementof Louisiana law and wasnotcovered
by the Court’s instructionsto the jury.” The question is whetherthe refusal to
give it “seriously impair[ed]” Byron’s ability to present a defense to Counts 5
and 7.
It did not. At trial, both sides discussed, at some length, the distinction
between an “accessory after the fact” and a “principal,” with both referencing
that distinction in their closing arguments. As the district court found, the
21
Patterson Cert. Petition Appendix 22a
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Document: 00514195708
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DateFiled: 10/13/2017
No. 16-30525
jury was “well aware of the significance and meaning of Byron’s guilty plea to
that offense in state court and how beingan accessoryafter the fact is different
from being a principal.”
E.
Deloyd was convicted of the murder of Devin Hutton (Count 15) and the
murder of Corey Blue (Count 19).!3 Both convictions are for “murderin aid of
racketeering,” which means Deloyd was convicted under state as well as federal law: Louisiana’s second-degree murder statute!4 and federal criminal
statutes, including 18 U.S.C. § 924q), which imposes harsh penalties on
offenders convicted of committing murder with a firearm during the course of
a RICO or drug-trafficking conspiracy. The Presentence Report (“PSR”) calculated Deloyd’s sentence in reference to the first-degree-murder guideline in
U.S. Sentencing Guidelines (“U.S.S.G.”) § 2A1.1. The district court adopted
the PSR’s calculations.
Deloyd claims that the court instead should have applied Section 2A1.2,
which would have resulted in a shorter sentence. He notes that the guidelines
provide that sentences for § 924() convictions should be calculated under
either Section 2A1.1 (for first-degree murder) or Section 2A1.2 (for second-
degree murder). See U.S.S.G. App. A (Statutory Index). Neither the PSR nor
the court explained why it chose Section 2A1.1, not Section 2A1.2. Because
Deloyd did not raise the issue in the district court, we engage in plain-error
review. Puckett, 556 U.S. at 135.
The district court correctly applied the first-degree-murder guideline.
Although Deloyd was convicted of second-degree murder under Louisianalaw,
13 Patterson was also convicted of murdering Blue.
14 See LA. REV. STAT. ANN.§ 14:30.1(A)(1).
22
Patterson Cert. Petition Appendix 23a
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Document: 00514195708
Page: 23
Date Filed: 10/13/2017
No. 16-380525
“first degree murder is the federal crime most analogous to the Louisiana
second degree murderstatute.” United States v. Tolliver, 61 F.3d 1189, 1221
(5th Cir. 1995), vacated on other grounds sub nom. Moore v. United States,
519 U.S. 802 (1996). Federal law classifies a broad range of murdersas “first
degree,” including “any ... kind of willful, deliberate, malicious, and premeditated killing.”
18 U.S.C. § 1111. In contrast, Louisiana’s first-degree-
murder statute applies only to certain facts. For example, it applies to an
offender who has committed felony murder, murdered a police officer, fire-
fighter, young child, or elderly person, or murdered multiple persons. See LA.
REV. STAT. ANN.§ 14:30.
Louisiana’s second-degree-murder statute is much broader. It applies
whenanoffender has killed a person and had the specific intentto kill or inflict
great bodily harm. Jd. § 14:30.1(A)(1). This encompasses murdersthat, under
federal law, are classified as “first degree.” Thus, it was not a clear or obvious
error to apply the first-degree murder guideline.
For the reasons stated, the judgment is AFFIRMED except with respect
to the sufficiency of evidence as to Counts 9, 10, 18, and 14, on which we
REVERSEanddirect a judgmentof acquittal. This matter is REMANDEDfor
resentencing as appropriate.
23
Patterson Cert. Petition Appendix 24a
Case: 18-30256
Document: 00515073119
Page: 1
Date Filed: 08/12/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-30256
August 12, 2019
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff – Appellee,
v.
DELOYD JONES, also known as Puggy Jones; BYRON JONES, also known
as Big Baby Jones; SIDNEY PATTERSON, also known as Duda Man
Patterson,
Defendants – Appellants.
Appeals from the United States District Court
for the Eastern District of Louisiana
Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM:
Appellants were convicted of a series of racketeering, drug, and firearm
offenses—including several offenses under 18 U.S.C. § 924—in connection with
their activities as members of a New Orleans gang. While this appeal was
pending, the Supreme Court decided United States v. Davis, 139 S. Ct. 2319
(2019), which held that the residual clause of § 924(c) is unconstitutionally
vague. Appellants now seek vacatur of their § 924 convictions. We VACATE
the challenged convictions and REMAND.
Patterson Cert. Petition Appendix 25a
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Document: 00515073119
Page: 2
Date Filed: 08/12/2019
No. 18-30256
I.
Appellants Deloyd Jones, Byron Jones, and Sidney Patterson were
convicted of racketeering, drug, and firearm offenses arising out of their
membership in the New Orleans gang “Ride or Die.” Among these were several
convictions under 18 U.S.C. § 924. For each § 924 offense, the indictment
charged a Racketeer Influenced and Corrupt Organizations Act (RICO)
conspiracy—Count 1 in the indictment—as a predicate crime of violence, and
a controlled-substance conspiracy—Count 2 in the indictment—as a predicate
drug trafficking crime. The verdict form did not require the jury to specify
which predicate offense or offenses it relied upon in convicting Appellants of
the § 924 offenses.
On appeal, we reversed four of the convictions for insufficient evidence,
affirmed the remaining convictions, and remanded for resentencing. 1 United
1 The convictions relevant to this appeal and the sentences the district court imposed
on remand are as follows:
Deloyd Jones
• Count 1 – RICO conspiracy under 18 U.S.C. § 1962(c) – life imprisonment.
• Count 2 – Conspiracy to distribute controlled substances under 21 U.S.C. §§ 841
and 846 – life imprisonment.
• Count 3 – Conspiracy to possess firearms under 18 U.S.C. § 924(o) – 240 months.
• Count 16 – Causing death through the use of a firearm under 18 U.S.C. § 924(j)
– life imprisonment.
• Count 18 – Use and carrying of a firearm during and in relation to a crime of
violence and a drug trafficking crime under 18 U.S.C. § 924(c)(1)(A) – 120 months.
• Count 20 – Causing death through the use of a firearm under 18 U.S.C. § 924(j)
– life imprisonment.
Byron Jones
• Count 1 – RICO conspiracy under 18 U.S.C. § 1962(c) – life imprisonment.
• Count 2 – Conspiracy to distribute controlled substances under 21 U.S.C. §§ 841
and 846 – 235 months.
• Count 3 – Conspiracy to possess firearms under 18 U.S.C. § 924(o) – 235 months.
• Count 6 – Causing death through the use of a firearm under 18 U.S.C. § 924(j) –
235 months.
• Count 8 – Use and carrying of a firearm during and in relation to a crime of
violence and a drug trafficking crime under 18 U.S.C. § 924(c)(1)(A) – 120 months.
2
Patterson Cert. Petition Appendix 26a
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Document: 00515073119
Page: 3
Date Filed: 08/12/2019
No. 18-30256
States v. Jones, 873 F.3d 482, 500 (5th Cir. 2017). Appellants appeal a second
time.
In their briefs, they argue that their § 924 convictions are
unconstitutional under Sessions v. Dimaya, 138 S. Ct. 1204 (2018), and our
decision in United States v. Davis, 903 F.3d 483 (5th Cir. 2018).
When
Appellants filed their briefs, Davis was still pending before the Supreme Court.
After the oral argument in this case, the Supreme Court issued its opinion in
Davis, which affirmed our decision on the relevant issue. 139 S. Ct. at 2336.
Because both Davis decisions were issued after Appellants’ resentencings, they
did not raise this issue in their previous appeal or in the district court.
II.
In Sessions v. Dimaya, the Supreme Court invalidated the residual
clause of 18 U.S.C. § 16(b) as unconstitutionally vague. 138 S. Ct. at 1223.
Months later, in United States v. Davis, we relied on Dimaya to hold that the
identically-phrased residual clause of 18 U.S.C. § 924(c) is unconstitutionally
vague as well. 903 F.3d at 486. The Supreme Court agreed and affirmed our
holding in that regard. Davis, 139 S. Ct. at 2336.
The parties agreed in their briefs that under Dimaya and our decision in
Davis, RICO conspiracy is not a § 924(c) crime of violence. In a Federal Rule
of Appellate Procedure 28(j) letter, the government acknowledged that the
same is true under the Supreme Court’s Davis decision. See Gov’t’s Fed. R.
App. P. 28(j) Letter (June 26, 2019). Because the jury in Appellants’ case may
have based Appellants’ § 924 convictions on the now-invalid RICO conspiracy
Sidney Patterson
• Count 1 – RICO conspiracy under 18 U.S.C. § 1962(c) – life imprisonment.
• Count 2 – Conspiracy to distribute controlled substances under 21 U.S.C. §§ 841
and 846 – life imprisonment.
• Count 3 – Conspiracy to possess firearms under 18 U.S.C. § 924(o) – 240 months.
• Count 20 – Causing death through the use of a firearm under 18 U.S.C. § 924(j)
– life imprisonment.
3
Patterson Cert. Petition Appendix 27a
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Document: 00515073119
Page: 4
Date Filed: 08/12/2019
No. 18-30256
predicate,
Appellants
contend
that
each
of
those
convictions
is
unconstitutional. 2 Appellants advance two alternative arguments in support
of their position: (1) permitting § 924 convictions predicated on RICO
conspiracy is structural error requiring automatic reversal; and (2) the § 924
convictions should be reversed under plain error review.
A.
Structural error is constitutional error that “‘affect[s] the framework
within which the trial proceeds,’ rather than being ‘simply an error in the trial
process itself.’”
Weaver v. Massachusetts, 137 S. Ct. 1899, 1907 (2017)
(alteration in original) (quoting Arizona v. Fulminante, 499 U.S. 279, 310
(1991)). If an error is structural, it is not harmless beyond a reasonable doubt,
and it warrants automatic reversal. See id.
Structural error does not occur when a jury rendering a general verdict
“was instructed on alternative theories of guilt and may have relied on an
invalid one.” Hedgpeth v. Pulido, 555 U.S. 57, 58 (2008); accord United States
v. Skilling, 638 F.3d 480, 481 (5th Cir. 2011). That is precisely what occurred
here: the jury was given two theories of guilt for the § 924 offenses—a crime of
violence predicate and a drug trafficking predicate—and it may have relied on
the invalid crime of violence predicate to the exclusion of or in addition to the
valid drug trafficking predicate. Thus, under Hedgpeth, plain error review
applies. See United States v. Flores, 2018 WL 2709855, at *6–7 (D. Nev. June
5, 2018) (holding that inclusion of invalid § 924(c) crime of violence predicate
in jury instructions was not structural error where jury was also given valid
drug trafficking predicate); see also United States v. Percel, 553 F.3d 903, 908–
09 (5th Cir. 2008) (“Generally, incorrect jury instructions are not considered
2 Specifically, Deloyd Jones challenges his Count 3, 16, 18, and 20 convictions; Byron
Jones challenges his Count 3, 6, and 8 convictions; and Patterson challenges his Count 3 and
20 convictions.
4
Patterson Cert. Petition Appendix 28a
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Document: 00515073119
Page: 5
Date Filed: 08/12/2019
No. 18-30256
structural errors.”); Jimenez v. Wood Cty., 660 F.3d 841, 845 (5th Cir. 2011)
(en banc) (“Where a proper objection is not made, . . . our review of a jury
instruction challenge is limited to review for plain error.”).
Moreover, we recently applied plain error review under circumstances
similar to Appellants’: the appellant was convicted of a firearm offense under
§ 924(c) based on a predicate crime of violence that the parties agreed was
invalid in light of our decision in Davis. United States v. Lewis, 907 F.3d 891,
893–94 (5th Cir. 2018), cert. denied, No. 18-989, 2019 WL 358452 (June 28,
2019). We have also applied plain error review in the analogous context of
Johnson 3 and Dimaya errors. E.g., United States v. Fuentes, 906 F.3d 322,
324–25 (5th Cir. 2018) (Johnson error); United States v. Rubio-Sorto, 760 F.
App’x 258, 259–60 (5th Cir. 2019) (Dimaya error); see also Shabazz v. United
States, 923 F.3d 82, 84 (2d Cir. 2019) (concluding that Johnson error in
sentencing was not structural). We likewise hold that the Davis error in this
case is not structural.
B.
Appellants next argue that even if the error here is not structural, we
must reverse their convictions under plain error review. 4 Plain error review
consists of four prongs: (1) there must be an error; (2) the error must be “clear
or obvious, rather than subject to reasonable dispute”; (3) “the error must have
affected the appellant’s substantial rights, which in the ordinary case means
he must demonstrate that it ‘affected the outcome of the district court
proceedings’”; and (4) the court must decide in its discretion to correct the error
3 See Johnson v. United States, 135 S. Ct. 2551 (2015).
4 In the alternative, Appellants submit that de novo review is appropriate because
their arguments were foreclosed in the Fifth Circuit at the time of their trial and initial
appeal. However, as the government points out and Appellants acknowledge, we “may review
a claim raised for the first time on appeal, even when based on an intervening Supreme Court
decision, only for plain error.” United States v. Fernandez, 559 F.3d 303, 316 (5th Cir. 2009).
5
Patterson Cert. Petition Appendix 29a
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Document: 00515073119
Page: 6
Date Filed: 08/12/2019
No. 18-30256
because it “seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings.”
Puckett v. United States, 556 U.S. 129, 135 (2009)
(alteration in original) (quoting United States v. Olano, 507 U.S. 725, 734, 736
(1993)).
The government concedes that prong one of the plain error review
framework is satisfied here because, under both Davis decisions, it was error
to permit the jury to convict Appellants under § 924 based on RICO conspiracy
as a crime of violence. The government also concedes prongs two and four: that
the error is plain because both Davis opinions were issued while this appeal
was pending, and that, if the error affected Appellants’ substantial rights, “the
failure to remedy the mistake would be manifestly unfair.”
The government is correct to concede these points. In Davis, we held
that Hobbs Act conspiracy was not a crime of violence because it did “not
necessarily require proof that a defendant used, attempted to use, or
threatened to use force”—instead, “conspiracy to commit an offense is merely
an agreement to commit an offense.” 903 F.3d at 485. The Supreme Court’s
Davis opinion left this reasoning intact. 139 S. Ct. at 2336 (vacating only our
decision not to vacate the appellants’ sentences on all counts). Similarly, RICO
conspiracy only requires that (1) “two or more people agreed to commit a
substantive RICO offense”; and (2) “the defendant knew of and agreed to the
overall objective of the RICO offense.” Jones, 873 F.3d at 489. Accordingly,
RICO conspiracy is not a crime of violence, and the district court erred in
permitting Appellants’ § 924 convictions to be predicated on this offense. In
addition, because we decided Davis in September 2018 and the Supreme Court
decided Davis in June 2019, the error is plain. United States v. EscalanteReyes, 689 F.3d 415, 423 (5th Cir. 2012) (en banc) (“[T]he ‘plainness’ of the error
should be judged by the law at the time of appeal.”).
6
Patterson Cert. Petition Appendix 30a
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Document: 00515073119
Page: 7
Date Filed: 08/12/2019
No. 18-30256
As for prong four of plain error review, the Davis error here increased
Appellants’ sentences significantly and even resulted in additional life
sentences for Deloyd Jones and Patterson.
Declining to correct this
“particularly egregious error[]” would therefore “cast significant doubt on the
fairness of the criminal justice system.” United States v. Young, 470 U.S. 1, 15
(1985) (quoting United States v. Frady, 456 U.S. 152, 163 (1982)); United States
v. Hornyak, 805 F.3d 196, 199 (5th Cir. 2015) (holding that prong four was
satisfied where appellant would be kept in prison for an additional sixty-eight
months “because of a clause in a statute declared unconstitutionally void
during his direct appeal”). Thus, our only remaining inquiry in this case is
under prong three: whether the Davis error in this case affected Appellants’
substantial rights. See Puckett, 556 U.S. at 135. We hold that it did.
To establish that an error affected their substantial rights, Appellants
must “‘show a reasonable probability that, but for the error,’ the outcome of the
proceeding would have been different[.]” Molina-Martinez v. United States,
136 S. Ct. 1338, 1343 (2016) (quoting United States v. Dominguez Benitez, 542
U.S. 74, 76 (2004)). In Lewis, we concluded without discussion that a Davis
error affected the appellant’s substantial rights. 907 F.3d at 895. However,
this case presents a different question because here the jury could have
convicted on the § 924 counts by relying on either the invalid crime of violence
predicate or the alternative drug trafficking predicate, the Count 2 controlledsubstance conspiracy.
Appellants contend that the record demonstrates that the Davis error
affected their substantial rights because the outcome at trial may have been
different absent the inclusion of the RICO conspiracy crime of violence
predicate for the § 924 offenses. Appellants argue that the indictment, the
evidence and arguments presented at trial, and the verdict form indicate that
the RICO conspiracy encompassed a broader range of conduct than the
7
Patterson Cert. Petition Appendix 31a
Case: 18-30256
Document: 00515073119
Page: 8
Date Filed: 08/12/2019
No. 18-30256
controlled-substance conspiracy, allowing the jury to convict on the § 924
counts based on conduct unrelated to drug trafficking.
The government
responds that the verdict form and the government’s theory at trial
demonstrate that the jury necessarily connected the § 924 offenses to the
controlled-substance conspiracy, so the verdict would have been the same even
absent the RICO conspiracy predicate.
Courts that have considered § 924 convictions predicated on both a crime
of violence and a drug trafficking crime have reached disparate conclusions as
to whether the jury could have convicted based only on the drug trafficking
predicate. For example, the Eleventh Circuit concluded that an indictment
charging a § 924(c) offense based on multiple predicate offenses was infirm
because “a general verdict of guilty does not reveal any unanimous finding by
the jury that the defendant was guilty of conspiring to carry a firearm during
one of the potential predicate offenses, all of [the] predicate offenses, or guilty
of conspiring during some and not others.” In re Gomez, 830 F.3d 1225, 1227
(11th Cir. 2016); see also In re Cannon, 2019 WL 3334766, at *5 (11th Cir. July
25, 2019) (holding that appellant made a prima facie showing that his Davis
claim satisfied the statutory criteria of 28 U.S.C. § 2255(h)(2) where his § 924
conviction referenced multiple predicates, including one that may no longer
qualify as a crime of violence, and it was “somewhat unclear which crime or
crimes served as the predicate offense”).
In contrast, the Second Circuit held in an unpublished case that no plain
error occurred where the appellant had “admitted to engaging in drug
trafficking” at trial and “certain questions from the jury during deliberations
indicate[d] that the jury was considering the drug trafficking predicate”
instead of the crime of violence predicate. United States v. Ventura, 742 F.
App’x 575, 578 (2d Cir. 2018), petition for cert. filed (U.S. Feb. 12, 2019) (No.
18-8055); see also United States v. Vasquez, 672 F. App’x 56, 61 (2d Cir. 2016)
8
Patterson Cert. Petition Appendix 32a
Case: 18-30256
Document: 00515073119
Page: 9
Date Filed: 08/12/2019
No. 18-30256
(holding that a § 924 conviction “undoubtedly rest[ed] on a valid drugtrafficking predicate” where the crime of violence and drug conspiracy were
“inextricably intertwined” and the jury convicted on the underlying drug
conspiracy offense).
Turning to the record in this case, the indictment provides the first
indication that the RICO conspiracy and the controlled-substance conspiracy
were not coextensive.
While the alleged conduct underlying the RICO
conspiracy included “conspiracy to distribute controlled substances” and
“distribution of controlled substances,” it also included a broader range of
conduct: “conspiracy to commit murder,” “aggravated battery,” the use of
“stolen vehicles,” and “protecting the power, territory and profits of the
enterprise through . . . aggravated assault, robbery and murder.” In addition,
the indictment charged each § 924 offense alongside another offense based on
the same conduct: for example, Counts 5 and 6 both arose out of the murder of
Travis Arnold.
Although the § 924 offenses included both the RICO and
controlled-substance predicates, the paired offenses specified that they were
committed “in Aid of Racketeering”—a reference to 18 U.S.C. § 1959, the
Violent Crimes in Aid of Racketeering Act (VICAR)—suggesting a connection
between the conduct underlying each § 924 offense and the RICO conspiracy.
The government’s opening statement and closing argument also suggest
that the RICO conspiracy offense encompassed conduct beyond the controlledsubstance conspiracy.
Specifically, the government’s opening statement
emphasized that Ride or Die used its guns in acts of violence unrelated to its
drug activity, such as protecting its gang territory or maintaining its
reputation. The government made similar statements in its closing argument.
In addition, witness testimony at trial described RICO conduct unrelated to
the controlled-substance conspiracy.
9
Patterson Cert. Petition Appendix 33a
Case: 18-30256
Document: 00515073119
Page: 10
Date Filed: 08/12/2019
No. 18-30256
The verdict form further supports Appellants’ argument that there is a
reasonable probability that the jury’s verdict would not have been the same
absent the inclusion of the RICO conspiracy as a crime of violence predicate.
The verdict form included the same VICAR “in Aid of Racketeering” language
for the offenses paired with each § 924 offense based on the same underlying
conduct. And Appellants correctly observe that the jury returned the same
verdicts on each § 924 offense and its paired “in Aid of Racketeering” offense.
For example, on Counts 5 and 6, the jury convicted Byron Jones of both and
acquitted Patterson of both. This suggests that the § 924 convictions were
based on the RICO conspiracy predicate.
The government contends that the verdict form instead establishes that
the RICO conspiracy and the controlled-substance conspiracy were necessarily
connected, pointing to the jury’s additional findings on Count 1 that Appellants
conspired to distribute and possess drugs in furtherance of the RICO
conspiracy. This does not change our analysis. The fact that Appellants’ drugrelated conduct furthered the RICO conspiracy does not establish the converse:
that all of Appellants’ RICO conduct furthered the controlled-substance
conspiracy as well. A reasonable probability remains that the jury relied upon
RICO conduct separate from the drug conspiracy—such as assaults and
murders for the purpose of maintaining the gang’s territory or reputation—to
convict Appellants of the challenged § 924 offenses. Cf. Vasquez, 672 F. App’x
at 61 (finding no plain error where the potentially invalid predicate “was
presented as a part of” and was “an act . . . in furtherance of” the indisputably
valid predicate).
While this is a close question, we conclude that the above record evidence
demonstrates a reasonable probability that the jury would not have convicted
Appellants of the § 924 offenses if the invalid crime of violence predicate were
not included on the verdict form. This is not a case like Vasquez or Ventura
10
Patterson Cert. Petition Appendix 34a
Case: 18-30256
Document: 00515073119
Page: 11
Date Filed: 08/12/2019
No. 18-30256
where the record makes clear that the jury based the § 924 convictions on the
valid drug trafficking predicate. See Vasquez, 672 F. App’x at 61; Ventura, 742
F. App’x at 577–78.
Finally, the sentences imposed based on Appellants’ § 924 convictions
were significant: Deloyd Jones received two additional life sentences and thirty
additional years of imprisonment, Byron Jones received approximately fifty
additional years of imprisonment, and Patterson received an additional life
sentence and twenty additional years of imprisonment. See United States v.
Garcia-Quintanilla, 574 F.3d 295, 304 (5th Cir. 2009) (“[W]e often ask whether
the error increased the term of a sentence, such that there is a reasonable
probability of a lower sentence on remand.”). As a result, we hold that the
inclusion of the RICO conspiracy crime of violence predicate affected
Appellants’ substantial rights. Appellants have demonstrated plain error.
III.
Because it was plain error to permit the jury to convict Appellants of
§ 924 offenses based on RICO conspiracy as a crime of violence predicate, we
VACATE Deloyd Jones’s Count 3, 16, 18, and 20 convictions; Byron Jones’s
Count 3, 6, and 8 convictions; and Patterson’s Count 3 and 20 convictions. We
REMAND for further proceedings consistent with this opinion.
11
Patterson Cert. Petition Appendix 35a
Case: 19-30935
Document: 00515463124
Page: 1
Date Filed: 06/23/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 19-30935
Summary Calendar
FILED
June 23, 2020
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
BYRON JONES, also known as Big Baby Jones; DELOYD JONES, also known
as Puggy Jones; SIDNEY PATTERSON, also known as Duda Man Patterson,
Defendants-Appellants
Appeals from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:13-CR-205-2
USDC No. 2:13-CR-205-1
USDC No. 2:13-CR-205-7
Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Bryon Jones, Deloyd Jones, and Sidney Patterson appeal the judgments
entered after remand for resentencing on their “numerous felonies related to
their membership in a group called Ride or Die.” United States v. Jones, 873
F.3d 482, 488 (5th Cir. 2017); see also United States v. Jones, 935 F.3d 266, 269
* 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.
Patterson Cert. Petition Appendix 36a
Case: 19-30935
Document: 00515463124
Page: 2
Date Filed: 06/23/2020
No. 19-30935
(5th Cir. 2019). The defendants’ arguments are foreclosed by the law-of-thecase doctrine. See United States v. Lee, 358 F.3d 315, 320 (5th Cir. 2004). They
have filed unopposed motions for summary disposition of their appeals,
conceding that their arguments are foreclosed.
Because summary disposition is appropriate, see Groendyke Transp., Inc.
v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), the defendants’ unopposed
motions for summary disposition are GRANTED, and the district court’s
judgments are AFFIRMED. The alternative motions for extensions of time to
file merits briefs are DENIED.
2
Patterson Cert. Petition Appendix 37a
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