Petition for Writ of Certiorari — Ryan Taybron, Eric Nixon, and Geovanni Douglas, Petitioners v. United States

Supreme Court briefAug 2, 2024

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APPENDIX

TABLE OF CONTENTS

Appendix A:

Opinion by the U.S. Court of Appeals for the Fourth Circuit

(Apr. 16, 2024)..............................................................................1a

Appendix B:

Judgment of Conviction in the U.S. District Court for the

Eastern District of Virginia (Jul. 12, 2021) [Taybron]..............50a

Judgment of Conviction in the U.S. District Court for the

Eastern District of Virginia (Jun. 20, 2021) [Nixon].................56a

Judgment of Conviction in the U.S. District Court for the

Eastern District of Virginia (Sept. 13, 2021) [Douglas]............62a

Appendix C:

District Court Memorandum Order (Aug. 8, 2019)....................68a

Appendix D:

Fourth Circuit Order Denying Petition for Rehearing

(May 17, 2024)…………………...................................….............89a

Appendix E:

Virginia Code § 18.2-32...............................................................90a

Appendix F:

Virginia Code § 18.2-26...............................................................91a

APPENDIX A

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 21-4231

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

MARTIN L. HUNT, a/k/a O.G. Martin,

Defendant – Appellant.

No. 21-4300

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

DESHAUN RICHARDSON, a/k/a Day Day,

Defendant – Appellant.

No. 21-4334

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

ERIC NIXON, a/k/a Young Nix, a/k/a Lil Nix,

Defendant – Appellant.

No. 21-4349

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

XAVIER GREENE, a/k/a BJ,

Defendant – Appellant.

No. 21-4355

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

RAYMOND PALMER, a/k/a Ray Dog,

Defendant – Appellant.

No. 21-4358

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

RYAN TAYBRON, a/k/a 22, a/k/a Ryan Savage,

Defendant – Appellant.

No. 21-4509

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

GEOVANNI DOUGLAS, a/k/a Geo, a/k/a Twin,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at

Newport News. Mark S. Davis, Chief District Judge. (4:17-cr-00052-MSD-RJK-1; 4:17cr-00052-MSD-RJK-6; 4:17-cr-00052-MSD-RJK-8; 4:17-cr-00052-MSD-RJK-5; 4:17cr-00052-MSD-RJK-10; 4:17-cr-00052-MSD-RJK-7; 4:17-cr-00052-MSD-RJK-9)

Argued: January 23, 2024

Decided: April 16, 2024

Before HEYTENS and BENJAMIN, Circuit Judges, and MOTZ, Senior Circuit Judge.

Affirmed by published opinion. Senior Judge Motz wrote the opinion, in which Judge

Heytens and Judge Benjamin joined.

ARGUED: Rhonda Elizabeth Quagliana, MICHIEHAMLETT, PLLC, Charlottesville,

Virginia; Kimberly Harvey Albro, OFFICE OF THE FEDERAL PUBLIC DEFENDER,

Columbia, South Carolina; Jenny R. Thoma, OFFICE OF THE FEDERAL PUBLIC

DEFENDER, Clarksburg, West Virginia, for Appellants. Brian James Samuels, OFFICE

OF THE UNITED STATES ATTORNEY, Newport News, Virginia, for Appellee. ON

BRIEF: Lawrence H. Woodward, Jr., RULOFF, SWAIN, HADDAD, MORECOCK,

TALBERT & WOODWARD, P.C., Virginia Beach, Virginia, for Appellant Martin L.

Hunt. Gerald T. Zerkin, Richmond, Virginia, for Appellant Xavier Greene. Brendan S.

Leary, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Wheeling, West Virginia, for

Appellant Ryan Taybron. Jamison P. Rasberry, RASBERRY LAW, P.C., Virginia Beach,

Virginia, for Appellant Raymond Palmer. Nicholas R. Hobbs, SCHEMPF & WARE,

PLLC, Yorktown, Virginia, for Appellant Eric Nixon. Daymen W. X. Robinson, LAW

OFFICE OF DAYMEN W. X. ROBINSON, PC, Norfolk, Virginia, for Appellant

Geovanni Douglas. Jessica D. Aber, United States Attorney, Richmond, Virginia, Daniel

J. Honold, Assistant United States Attorney, OFFICE OF THE UNITED STATES

ATTORNEY, Alexandria, Virginia, for Appellee.

DIANA GRIBBON MOTZ, Senior Circuit Judge:

This appeal arises from the prosecution of the “36th Street Bang Squad” (the “Bang

Squad”), a gang that committed a string of murders, attempted murders, and assaults in

2015 and 2017. The United States charged seven of the gang’s members — Martin Hunt,

Deshaun Richardson, Eric Nixon, Xavier Greene, Raymond Palmer, Ryan Taybron, and

Geovanni Douglas (collectively, “Defendants”) — with racketeering conspiracy, murder,

attempted murder, and related crimes. Following a five-week trial, the jury returned guilty

verdicts on nearly every count. Defendants now appeal, raising a host of issues, including

but not limited to challenges to (1) the classification of their racketeering offenses as crimes

of violence; (2) the denial of their motions to exclude testimony of three forensic experts;

and (3) the denial of their motions for judgment of acquittal and for a mistrial. After careful

review of a voluminous record, we find no reversible error, and so affirm.

In 2019, a grand jury returned the operative 35-count second superseding indictment

against Hunt, Richardson, Nixon, Greene, Palmer, Taybron, and Douglas. This indictment

alleged a single count of conspiracy to commit racketeering, in violation of the Racketeer

Influenced and Corrupt Organizations Act (“RICO”); multiple murders and attempted

murders in violation of the Violent Crimes in Aid of Racketeering Act (“VICAR”);

seventeen corresponding firearm offenses, 18 U.S.C. § 924; and other crimes including

witness intimidation, narcotics distribution, and false statements.

During the five-week jury trial that followed, the Government marshaled a mountain

of evidence to support these charges, including physical evidence, social media records,

and surveillance footage. The Government also produced the testimony of three forensic

experts connecting the defendants’ firearms to the scenes of multiple assaults, murders,

and attempted murders. And the Government offered the testimony of more than 50 fact

witnesses, including six cooperating Bang Squad members: Jarrell Atkins, Jamaree Green,

Corey Sweetenburg, Eric Edmunds, Akeem Robinson, and Shaquone Ford. This evidence

painted a vivid portrait of multiple gang-related murders, shootings, and other violent

crimes committed by the Bang Squad in 2015 and 2017.

Count 1 charged all seven defendants with conspiracy to commit racketeering, in

violation of 18 U.S.C. § 1962(d). This count alleged that the defendants participated in the

36th Street Bang Squad, a criminal enterprise, and agreed to support this enterprise through

a pattern of racketeering offenses — including murder, robbery, witness intimidation, and

drug distribution. The jury convicted all seven defendants on this count.

The 36th Street Bang Squad operated in Newport News and Hampton, Virginia.

The Bang Squad saw itself as a “brotherhood,” with violence as its currency and its creed.

Its members committed robberies, murders, and shootings to establish themselves in the

gang. They traded in guns and cars, and shared the fruits of their crimes. They were

expected to “put in work,” and earned reputation in the gang by committing violent acts.

And they used violence to protect their territory, exert their influence, and retaliate against

their foes. In a practice known as “op shopping” (opposition shopping), members of the

Bang Squad would hunt members of rival gangs, and shoot them on sight.

Taybron led the gang and planned its operations. The Bang Squad worked out of

the Marshall Courts and Seven Oaks apartments in Newport News, and Taybron’s home

in Hampton. The Bang Squad warred with five rival street gangs — the Walker Village

Murder Gang, the Newsome Park Gang, the 44th Street Gang, the 9th Street Gang, and the

Chestnut Gang. And the Bang Squad used social media to enflame conflicts with its rivals.

Its members used Facebook to coordinate activities, stake territorial claims, and taunt their

adversaries, often by disseminating posts and music videos boasting about violent,

retaliatory acts. These actions escalated tensions among the gangs, and often sparked

violent conflict.

The Government offered evidence that the Bang Squad committed multiple crimes

in the spring of 2015. On March 8, 2015, Bang Squad members Xavier Greene and Steven

Harris went hunting for “ops.” At the corner of Ivy Street and 9th Street, in Newport News,

they shot and killed 18-year-old Dwayne Parker, a member of the rival Newsome Park

Gang. Greene and Harris fled the scene, and engaged in a “shootout” with members of the

9th Street Gang, who were leaving a house party. Greene and Harris took shelter in the

home of Jarrell Atkins, another Bang Squad member, and posted a video of Parker’s dead

body on social media. The jury convicted Greene of VICAR murder (Count 2), and a

related firearm charge (Count 3), for his role in this offense.

Only one week later, on March 15, 2015, Martin Hunt and Lionel Harris went “op

shopping,” and shot at a member of the Walker Village Murder Gang on Wickham Avenue.

Philip Drew and Arthur Jones, both minors, were struck in the crossfire. Jones sustained

gunshot wounds to the head and the back; Drew was shot in the ankle, the forearm, the

buttock, and the mouth. Both survived, and were treated at the Riverside Regional Medical

Center. The jury convicted Hunt of two counts of VICAR attempted murder (Counts 30,

32), and two corresponding firearm charges (Counts 31, 33), for his role in these crimes.

The Walker Village Murder Gang swiftly retaliated. On April 6, 2015, Walker

Village member Domingo Davis shot at Hunt and Harris. That same day, four Bang Squad

members left the Marshall Courts apartment complex to search for Davis. The Bang Squad

members spotted Davis leaving a party on 25th Street and opened fire, killing both Davis

and 13-year-old Jada Richardson. The Government charged Richardson, Greene, and Hunt

with two counts of VICAR murder (Counts 6, 8), and two associated firearm crimes

(Counts 7, 9) for this double murder. The jury convicted Greene and Hunt of all four

counts, but acquitted Richardson of these offenses.

That same night, Dwayne Dozier, of the Newsome Park Gang, shot up the residence

of Jamaree Green, a Bang Squad member, while his family was inside. Green asked Hunt

to help him retaliate, but Hunt urged him to wait, as police activity was “too hot” following

the Jada/Richardson double murder. About a week later, when Bang Squad members stated

on social media that they had spotted Dozier, Taybron told them to “pop” him; two hours

later, Richardson asked why they had not. Then, on April 27, Green, Palmer, Atkins, and

Sweetenburg drove to Dozier’s home late at night, and fired multiple rounds into the house

while Dozier’s mother was inside. For his role in this shooting, the jury convicted Palmer

of one count of VICAR attempted assault with a deadly weapon (Count 10), and a related

firearm charge (Count 11).

The summer of 2015 saw more violent, gang-related criminal activity. On June 3,

2015, Newsome Park gangster Jeremiah Smith murdered Bang Squad member Kevonne

Turner in his front yard, sparking another chain of retaliatory shootings. A member of the

Bang Squad saw the shooting, pursued Smith, and shot at him near an H&H convenience

store. The Government charged Geovanni Douglas with one count of VICAR attempted

murder (Count 34) and a corresponding firearm charge (Count 35) for this offense, but the

jury acquitted him of both counts.

After Smith’s escape, the Bang Squad embarked on a protracted effort to locate him.

On June 5, 2015, Taybron’s girlfriend, Yamasha Jones, spotted Smith at his high school,

Bridgeport Academy. Taybron mobilized two cars full of Bang Squad members to kill

Smith — including Martin Hunt and several other unnamed gang members. An extended

pursuit followed. The Bang Squad drove to the school, and followed Smith’s school bus

to the Derby Run Apartments. As Bang Squad members combed the apartments to search

for Smith, they ran into two Walker Village gangsters outside a nearby Sonic restaurant,

and opened fire from their vehicle. The jury convicted Hunt of VICAR attempted murder

and conspiracy to commit murder (Count 12), and a corresponding firearm charge

(Count 13), for these crimes.

On August 1, 2015, several Newsome Park members “jumped” two Bang Squad

members inside a Solo Mart at 4710 Madison Avenue, in Newport News. Kierra Mitchell,

a friend of the gang members, called for backup. Xavier Greene, who was staying across

the street, gave his firearm to Geovanni Douglas, who ran to the Solo Mart and fired at the

assailants. Jasmine Person, who was shopping for cigarettes inside, was caught in the

crossfire. She was struck in the neck and the finger, and rushed by ambulance to the

Riverside Regional Medical Center. The Government charged Greene and Douglas with

VICAR attempted murder (Count 14), and a corresponding firearm charge (Count 15), for

this offense. The jury convicted both defendants of the attempted murder, but convicted

only Douglas of the firearm charge.

This chain of violence continued throughout the rest of 2015. Later in August,

Greene led a burglary of Southern Police Equipment, a gun shop near Richmond, to “arm

his brothers.” In September, Taybron learned that his girlfriend, Yamasha Jones, was

interacting with rival gang members, so he ordered a nighttime shooting of her house.

Sweetenburg and Ford pled guilty to this shooting. And in November, a rival gang killed

Steven Harris in retaliation for his role in the string of shootings the previous summer.

Two additional clashes occurred in early 2017. On January 2, 2017, Ford picked up

Taybron and Nixon to drive them to Taybron’s house. As the trio passed through the

Chestnut Gang’s territory, they spotted some Chestnut Gang members standing outside a

convenience store. Taybron ordered Ford to pull over, and they confronted the Chestnut

gangsters, ultimately sparking a shootout. The Government charged Taybron and Nixon

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with VICAR attempted murder (Count 21) and a related firearm count (Count 22), for this

offense. At trial, Taybron and Nixon requested and received a self-defense instruction, but

the jury nonetheless convicted them of both crimes.

One month later, on February 9, 2017, Nixon instructed Shaquone Mercer to buy

him a gun from a pawn shop. Two weeks after that, Nixon caught Darrell Pittman, of the

Newsome Park gang, leaving Aqueduct Apartments, and shot him in the head. Nixon

boasted about this shooting to other Bang Squad members, and posted on Facebook that

Pittman was “on the ground flopping like a fish.” Pittman survived, was hospitalized, and

identified Nixon as the shooter. Two days later, officers arrested Nixon and Jamaree Green

in a hotel room. For his actions, the jury convicted Nixon of VICAR attempted murder

(Count 23), a corresponding firearm charge (Count 24), and one count of making false

statements during a firearm purchase (Count 25).

II.

The jury deliberated for several days, and then, as detailed above, returned guilty

verdicts against all seven defendants, on most of the counts alleged in the indictment. 1

Defendants filed motions for judgment of acquittal, which the district court denied in a

In addition to the acquittals discussed above, certain counts were not submitted to

the jury. Before trial, the Government dismissed Counts 16–19, alleging another shooting,

and Count 20, alleging witness tampering in relation to that shooting. Moreover, before

submitting its case, the prosecution dismissed Count 28, and dismissed Richardson from

Counts 25–27, alleging narcotics activities.

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series of lengthy orders. They also filed motions for a new trial, which the court denied in

a consolidated order.

The district court sentenced Martin Hunt to three consecutive life sentences and 120

months’ imprisonment; Deshaun Richardson to 204 months’ imprisonment; Eric Nixon to

360 months’ imprisonment; Xavier Greene to four consecutive life sentences; Ryan

Taybron to 360 months’ imprisonment; Raymond Palmer to 180 months’ imprisonment;

and Giovanni Douglas to 228 months’ imprisonment. The defendants timely appealed.

We now turn to the numerous issues raised on appeal.

III.

First, Defendants Hunt, Nixon, Greene, Palmer, Taybron, and Douglas challenge

their convictions under 18 U.S.C. § 924(c), arguing that their predicate convictions under

Violent Crimes in Aid of Racketeering Act (“VICAR”), 18 U.S.C. § 1959, do not constitute

crimes of violence, as defined in § 924(c)(3). We consider de novo a contention that an

offense does not constitute a crime of violence. United States v. McNeal, 818 F.3d 141,

151 (4th Cir. 2016).

The VICAR statute addresses “the particular danger posed by those who are willing

to commit violent crimes in order to bolster their positions within racketeering enterprises.”

United States v. Keene, 955 F.3d 391, 394 (4th Cir. 2020) (cleaned up). Under VICAR, it

is a crime to commit one of several enumerated offenses to gain entrance into, or to

“maintain or increase [one’s] position in,” a racketeering enterprise. Id. (cleaned up); see

also 18 U.S.C. § 1959(a). Here, the Government charged each murder, attempted murder,

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conspiracy to commit murder, and attempted assault as a VICAR offense, because the Bang

Squad committed each crime as part of its organized efforts to exert its influence, protect

its territory, and retaliate against its rivals.

Defendants contend that neither VICAR attempted murder based on Virginia

attempted murder, nor VICAR attempted assault with a dangerous weapon based on

Virginia unlawful wounding, constitute valid predicates for their § 924(c) convictions.

They rely on the Supreme Court’s recent decision in Taylor v. United States, 596 U.S. 845

(2022), to so argue. In considering their arguments, we first examine how the Supreme

Court’s opinion in Taylor affects our analysis of attempt offenses under § 924(c). We then

turn to the application of that analysis to Defendants’ VICAR offenses. 2

“Pursuant to 18 U.S.C. § 924(c)(1)(A), it is a crime to use, carry, or possess a firearm

‘during and in relation to any crime of violence.’” United States v. Simmons, 11 F.4th 239,

253 (4th Cir. 2021). We employ the categorical approach to evaluate whether an offense

is a crime of violence under this provision. United States v. Mathis, 932 F.3d 242, 264 (4th

Cir. 2019). To constitute a crime of violence, a predicate offense must have as an element

“the use, attempted use, or threatened use of physical force.” United States v. Simms, 914

F.3d 229, 233 (4th Cir. 2019) (en banc); 18 U.S.C. § 924(a)(3)(A). We “consider only the

A VICAR offense is a crime of violence if either the state law predicate or the

generic federal offense is a crime of violence. United States v. Thomas, 87 F.4th 267, 274–

75 (4th Cir. 2023); United States v. Manley, 52 F.4th 143, 147 (4th Cir. 2022). Because

we hold that both Virginia predicate offenses constitute crimes of violence under § 924(c)’s

force clause, we need not evaluate the generic federal offenses.

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crime as defined, not the particular facts of the case,” and our analysis “begins and ends

with the offense’s elements.” Simms, 914 F.3d at 233. The term “physical force” requires

“violent force — that is, force capable of causing physical pain or injury to another person.”

Johnson v. United States, 559 U.S. 133, 140 (2010) (cleaned up). And to constitute a crime

of violence, the offense must require a mens rea more culpable than recklessness. See

United States v. Jackson, 32 F.4th 278, 283 (4th Cir. 2022).

Because § 924(c) reaches crimes that require the “attempted use” of violent physical

force, prior to Taylor, most circuits held that any attempt to commit a crime of violence is

invariably a crime of violence. See, e.g., United States v. Walker, 990 F.3d 316, 328 (3d

Cir. 2021); United States v. Smith, 957 F.3d 590, 595 (5th Cir. 2020); United States v.

Ingram, 947 F.3d 1021, 1026 (7th Cir. 2020); United States v. Dominguez, 954 F.3d 1251,

1261 (9th Cir. 2020); United States v. St. Hubert, 909 F.3d 335, 351 (11th Cir. 2018). But,

in the opinion underlying Taylor, we departed from that consensus, reasoning that certain

crimes of violence “can be accomplished merely through the threatened use of force,” and

that “an attempt to threaten force does not constitute an attempt to use force.” United

States v. Taylor, 979 F.3d 203, 209 (4th Cir. 2020), aff’d, 596 U.S. 845 (2022). Our

decision in Taylor created a split with our sister circuits, and the Supreme Court promptly

took up the case.

In Taylor, the Supreme Court addressed whether attempted Hobbs Act robbery is a

crime of violence under § 924(c). 596 U.S. at 850. The completed offense of Hobbs Act

robbery requires an unlawful taking of property “by means of actual or threatened force.”

Id. (quoting 18 U.S.C. § 1951(a)). Because a completed Hobbs Act robbery is a crime of

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violence, the Government argued that an attempt to commit this offense must be a crime

of violence as well. Id. at 853. The Supreme Court rejected that approach, just as we had

— holding that the attempt must itself involve actual, attempted, or threatened force. Id.

The Court explained that because Hobbs Act robbery can be completed with “actual or

threatened force,” an attempt to commit that offense by conveying a threat might not

involve “attempted force.” Id. at 852. By way of example, the Court discussed a wouldbe robber who researched a store, bought equipment, drafted a threatening note, and was

arrested as he stepped into the building. Id. at 851–52. That hypothetical defendant did

not use force, attempt to use force, or threaten anyone. Id. at 852. Instead, he attempted

to convey a threat of physical force — sufficient for attempted Hobbs Act robbery, but not

for § 924(c). Id.

The thrust of Taylor is that an attempt offense qualifies as a crime of violence only

if the completed offense invariably requires the use of physical force. As we explained in

the decision underlying Taylor:

[W]here a crime of violence may be committed without the use or attempted

use of physical force, an attempt to commit that crime falls outside the

purview of the force clause. But where a crime of violence requires the use

of physical force — as is usually the case — the categorical approach

produces the opposite outcome: because the substantive crime of violence

invariably involves the use of force, the corresponding attempt to commit

that crime necessarily involves the attempted use of force.

979 F.3d at 208. That explanation remains accurate following the Supreme Court’s holding

in Taylor. An attempt offense is not a crime of violence merely because the completed

offense is itself a crime of violence. But if a crime cannot be completed without the use of

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physical force, any attempt to commit that crime necessarily requires the attempted use of

physical force.

Defendants urge a broader reading of Taylor, under which an attempt crime cannot

be a crime of violence if it may be completed through a nonviolent step towards the offense.

They argue that a defendant “who intended to try to use force but never got the chance,”

such as where “their intended target was unavailable,” has not attempted to use force at all.

Repl. Br. 19. As we understand it, this argument would have us hold that § 924(c) defines

the attempted use of force as the unsuccessful use of force. Under this reading, an attempt

offense would only qualify as a crime of violence if it categorically requires an act that sets

force in motion — such as pointing a gun and pulling the trigger. That construction is far

more restrictive than the proper understanding of a criminal attempt, and would reduce the

“attempted use” clause to a near nullity.

To start, this construction would read all attempt crimes out of § 924(c).

common law, an attempt consists of (1) a specific intent to commit the completed offense;

and (2) a substantial step toward the offense that is strongly corroborative of the intent to

commit it. United States v. Resendiz-Ponce, 549 U.S. 102, 106–07 (2007); accord United

States v. Haas, 986 F.3d 467, 478 (4th Cir. 2021). But while a “substantial step” must be

“more than mere preparation,” United States v. Engle, 676 F.3d 405, 423 (4th Cir. 2012)

(cleaned up), it “need not be the last possible act” before the completion of the offense,

United States v. Pratt, 351 F.3d 131, 136 (4th Cir. 2003). And many probative but

nonviolent acts, such as lying in wait, luring a victim, or gathering materials near the target

area, can be a substantial step corroborative of the defendant’s criminal intent. Id. at 135–

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36 (quoting Model Penal Code § 5.01(2)). Thus, if the phrase “attempted use of force”

refers only to acts such as discharging a firearm, smashing a window, or swinging a knife,

most — maybe all — attempt offenses would not be crimes of violence. That cannot be

what Congress intended.

Equally telling, remarkably few offenses have an element akin to the “unsuccessful

use” of physical force. See United States v. States, 72 F.4th 778, 786 (7th Cir. 2023)

(reasoning that a construction of § 924(c) that excludes attempt crimes “would describe an

empty set of offenses”). Section 924(c) requires a federal conviction as a predicate, 3 and

“[f]ederal statutes seldom include attempted conduct as an element of a completed crime.”

Id. While an isolated number of offenses have as an element the “attempt[] to cause bodily

injury,” they are the exception, not the rule. See id. at 786–87 (citing 18 U.S.C. § 249(a)(1);

10 U.S.C. § 928(a)). Against this backdrop, it is inconceivable that § 924(c) defines

“attempted use . . . of physical force” in a way that “excludes the mine run of attempts to

commit offenses that require the use of force,” and “refers only to completed offenses that

have attempted force as an element.” Id. at 787; see Abramski v. United States, 573 U.S.

169, 179 (2014) (instructing courts to examine “context, structure, history, and purpose,”

as well as “common sense,” to interpret statutory language (cleaned up)).

Accordingly, we reject Defendants’ construction of Taylor, which would exclude

virtually all attempt offenses from the “attempted use . . . of physical force” under § 924(c).

This case is no exception. We reach the state-law predicates at issue in this appeal

only by “look[ing] through” VICAR, which incorporates the charged state-law offense as

an element. See Thomas, 87 F.4th at 274–75.

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Instead, we read Taylor to provide that an attempt is a crime of violence if the completed

offense invariably requires the use of physical force. We now apply this construction to

the Defendants’ VICAR attempt offenses.

The jury convicted Defendants Hunt, Greene, Taybron, Nixon, and Douglas on nine

§ 924(c) counts arising from the Bang Squad’s shootings of rival gang members and

innocent bystanders. Six of these counts alleged discharge of a firearm in furtherance of a

VICAR attempted murder (Counts 13, 15, 22, 24, 31, 33). 4 And each corresponding

VICAR count was predicated on attempted first-degree murder in violation of Virginia law

(Counts 12, 14, 21, 23, 30, 32). Citing Taylor, Defendants now argue that attempted

murder is not a crime of violence under § 924(c). Because first-degree murder under

Virginia law categorically requires physical force, their arguments fail.

Every circuit to consider whether attempted murder is a crime of violence following

Taylor has held that this offense categorically requires the attempted use of physical force.

See, e.g., United States v. Pastore, 83 F.4th 113, 120 (2d Cir. 2023); States, 72 F.4th at

787–91; Dorsey v. United States, 76 F.4th 1277, 1284 (9th Cir. 2023); Alvarado-Linares

v. United States, 44 F.4th 1334, 1346–48 (11th Cir. 2022). In Pastore, the Second Circuit

reasoned that while Hobbs Act robbery may be committed by way of “threatened force,”

completed murder requires “the actual use of force.” 83 F.4th at 121 (cleaned up).

The remaining three (Counts 3, 7, 9) alleged the use of a firearm resulting in death.

The jury convicted Hunt and Greene of these crimes, and they do not appeal those

convictions.

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“Accordingly, a conviction for attempted murder categorically means that the defendant

took a substantial step toward the use of physical force — and not just a substantial step

toward the threatened use of physical force.” Id. (cleaned up). And because “attempted

murder requires both an intent to use physical force and a substantial step towards the use

of physical force, it satisfies the ‘attempted use . . . of physical force’ element under

section 924(c), and thereby qualifies as a crime of violence.” Id. (cleaned up).

We agree. As discussed above, an attempt offense qualifies as a crime of violence

if the completed offense categorically requires the use of physical force, and a mens rea

more culpable than recklessness. “A conviction for first-degree murder under Virginia law

requires the ‘willful, deliberate, and premeditated’ killing of another,” and always involves

“the use of force capable of causing physical pain to another person.” Mathis, 932 F.3d at

265 (quoting Va. Code § 18.2-32); accord In re Irby, 858 F.3d 231, 238 (4th Cir. 2017).

And in Virginia, a criminal attempt consists of: (1) a specific intent to commit the crime;

and (2) “an overt act done towards its commission, but falling short of the execution of the

ultimate design.” Commonwealth v. Herring, 758 S.E.2d 225, 235 (Va. 2014). Because

attempted murder requires the specific intent to kill, Secret v. Commonwealth, 819 S.E.2d

234, 248 (Va. 2018), and because it is impossible to commit intentional murder without

the use of violent, physical force, Mathis, 932 F.3d at 265, attempted first-degree murder

categorically involves the “attempted use . . . of physical force,” 18 U.S.C. § 924(c)(3)(A).

We therefore hold that the crime of attempted first-degree murder under Virginia law

qualifies as a crime of violence for purposes of § 924(c). See also United States v. Lassiter,

___ F.4th ___, No. 22-4147 (4th Cir. 2024) (reaching same conclusion).

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Two counterarguments merit attention. First, Defendants argue that attempted

murder under Virginia law may be committed by an act as “slight” as knocking on the door

to a person’s home with the intention of killing him if he opened it. Hunt Br. 12–13, 58.

See Simmons, 11 F.4th at 273–74 (quoting Rogers v. Commonwealth, 683 S.E.2d 311, 316

(Va. 2009)). Again, this argument wrongly urges us to read “attempted use . . . of physical

force” much more narrowly than the proper understanding of a criminal attempt. 5 Nothing

in the text of § 924(c)(3)(A) hints at such a strained reading. States, 72 F.4th at 786–87.

And Defendants’ example is not a “slight” act. A defendant who knocks on a victim’s door

with a gun in hand, and every intention to shoot, comes quite close to a completed murder.

If he fails to kill the victim, he has “attempted” to use force in every reasonable sense —

regardless of whether he fails because he shoots and misses, because his gun malfunctions,

or because his target does not open the door.

Second, Defendants argue that Virginia first-degree murder may be committed by

malicious omission, Vaughan v. Commonwealth, 376 S.E.2d 801, 806 (Va. 1989), and that

crimes that can be completed by malicious omissions do not constitute crimes of violence.

But we have held that “the knowing or intentional causation of bodily injury necessarily

While Virginia law refers to an “overt act,” and federal law requires a “substantial

step,” the two are similar in kind. “[A]n overt act is any ‘act apparently adopted to produce

the result intended’ so long as that act is not ‘mere preparation.’” Herring, 758 S.E.2d at

235–36 (quoting Martin v. Commonwealth, 81 S.E.2d 574, 576 (Va. 1954)). Like its

federal counterpart, it need not be “the ‘last proximate act to the consummation of the crime

in contemplation.’” Id. at 235 (quoting Glover v. Commonwealth, 10 S.E. 420, 421 (Va.

1889)). Cf. Pratt, 351 F.3d at 136 (holding that a “substantial step” for federal attempted

murder “need not be the last possible act” before the completion of the offense). Thus,

Defendants’ construction of Taylor would read Virginia attempts and federal attempts alike

out of the force clause entirely.

20a

involves the use of physical force.” 6 United States v. Rumley, 952 F.3d 538, 549 (4th Cir.

2020) (quoting United States v. Castleman, 572 U.S. 157, 169 (2014)). That is particularly

so when “‘death results’ from the defendant’s conduct.” United States v. Roof, 10 F.4th

314, 401 (4th Cir. 2021). Because a defendant who commits an intentional murder inflicts

“the greatest physical injury imaginable — death,” Jackson, 32 F.4th at 287, we have

already held that “first-degree murder under Virginia law” invariably requires the use of

physical force, and “qualifies categorically as a crime of violence under the force clause,”

Mathis, 932 F.3d at 265; accord Irby, 858 F.3d at 237 (“Common sense dictates that murder

is categorically a crime of violence under the force clause.”).

The Government charged Palmer with a § 924(c) violation for the Dwayne Dozier

home shooting (Count 11). That charge relies on Count 10, VICAR attempted assault with

a deadly weapon, which in turn rests on Virginia attempted unlawful wounding. Palmer,

too, relies on Taylor to argue that his state-law predicate offense is not a crime of violence.

His argument fails as well — we have previously held that Virginia unlawful wounding

requires the use of physical force. See Manley, 52 F.4th at 148 (“Not only does the Virginia

Defendants argue that the holding in Rumley conflicts with two prior decisions

holding that child abuse under Maryland law is not a crime of violence because it can be

completed by omission. See United States v. Cabrera-Umanzor, 728 F.3d 347, 352 (4th

Cir. 2013); United States v. Gomez, 690 F.3d 194, 201 (4th Cir. 2012). But Gomez held

that “neither” affirmative acts nor omissions under Maryland’s child abuse statute required

physical force, 690 F.3d at 201, and Cabrera-Umanzor held that the same law was not a

categorical match for the Guidelines definition of a “forcible sex offense” because it could

be premised on a failure to prevent sexual abuse by a third party, 728 F.3d at 352 (citing

U.S.S.G. § 2L1.2). Neither case is on point here, where we address the implications of an

attempt to commit murder.

21a

statute require the causation of bodily injury, it also requires that the person causing the

injury have acted with the specific intent to cause severe and permanent injury.” (cleaned

up)). It follows that any attempt to commit this offense categorically requires the attempted

use of physical force, and qualifies as a crime of violence under § 924(c).

IV.

Defendants next contest the denial of two pretrial motions: (1) their joint motion to

exclude three forensic experts; and (2) Douglas’s last-minute motion to reappoint counsel.

We review both decisions for an abuse of discretion. Simmons, 11 F.4th at 261 (motion to

exclude); United States v. Perez, 661 F.3d 189, 191 (4th Cir. 2011) (motion to substitute

counsel). A district court abuses its discretion if (1) it applies the incorrect law; (2) it rests

its decision on a clearly erroneous factual premise; or (3) we are left with the “definite and

firm conviction” that it “committed a clear error of judgment in the conclusion it reached

upon a weighing of the relevant factors.” Simmons, 11 F.4th at 261 (quoting Westberry v.

Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir. 1999)).

Federal Rule of Evidence 702 “imposes a special gatekeeping obligation on the trial

judge to ensure that an expert’s testimony both rests on a reliable foundation and is relevant

to the task at hand.” Sardis v. Overhead Door Corp., 10 F.4th 268, 281 (4th Cir. 2021)

(cleaned up); see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999); Daubert

v. Merrell Dow Pharms., 509 U.S. 579, 597 (1993). Expert testimony is relevant if it has

“a valid scientific connection to the pertinent inquiry,” and it is reliable only if it is “based

22a

on scientific, technical, or other specialized knowledge” rather than raw “belief or

speculation.” McKiver v. Murphy-Brown, LLC, 980 F.3d 937, 959, 962 (4th Cir. 2020)

(quoting Nease v. Ford Motor Co., 848 F.3d 219, 229 (4th Cir. 2017)).

In performing this gatekeeping function, the district court must focus on the expert’s

“principles and methodology, not on the conclusions that they generate.” In re Lipitor

Mktg., Sales Prac. & Prods. Liab. Litig., 892 F.3d 624, 631 (4th Cir. 2018) (cleaned up).

The district court may consider a wide range of Daubert factors to evaluate an expert’s

methodology, including its error rate; the standards governing its operation; whether it can

be tested; whether it is “subject to peer review”; and whether it is generally accepted in the

relevant scientific or expert community. United States v. Mallory, 988 F.3d 730, 741 (4th

Cir. 2021); see Daubert, 509 U.S. at 593–94. But these considerations are nonexclusive,

and the court has “broad latitude” to account for “any factors bearing on validity that the

court finds to be useful,” E.E.O.C. v. Freeman, 778 F.3d 463, 466 (4th Cir. 2015) (cleaned

up), depending on “the nature of the issue, the expert’s particular expertise, and the subject

of his or her testimony,” McKiver, 980 F.3d at 959 (cleaned up).

The Government relied on the testimony of three ballistics experts, Arnold Esposito,

Julianna Red Leaf, and Alison Milam, to connect firearms shared by members of the Bang

Squad to the scenes of each violent incident alleged in the indictment. As it must, the

Government gave Defendants notice of these experts one month before trial. In response,

Defendants filed a motion to exclude the testimony of all three experts, arguing that the

field of “toolmark identification” — a forensic analysis technique that evaluates whether a

particular gun fired a particular bullet — is categorically unreliable. The district court

23a

denied this motion, observing that it had rejected identical arguments by the same attorneys

in a recent case, and concluding that the Defendants’ concerns spoke to weight, rather than

admissibility.

Defendants renew their broad challenge on appeal, arguing that the entire field of

forensic toolmark analysis fails to satisfy Daubert. They also urge us not to rely on the

historic practice of admitting this evidence — arguing that, while toolmark analysis has

been allowed for decades, growing scientific skepticism of this field warrants deeper

scrutiny by the courts.

We recognize that the historic practice of admitting forensic evidence does not

eliminate a trial court’s responsibility to perform its gatekeeping function in a given case. 7

After all, “[s]erious deficiencies have been found in the forensic evidence used in criminal

trials.” Melendez Diaz v. Massachusetts, 557 U.S. 305, 319 (2009). Testimony by forensic

experts must be scrutinized under Rule 702 and Daubert, particularly if modern science

has called the expert’s principles and methods into question. See id. at 319–20. But the

decision whether to permit forensic evidence in a given case, and whether to limit its use,

remains firmly within the district court’s “broad discretion.” Belville v. Ford Motor Co.,

919 F.3d 224, 233 (4th Cir. 2019) (quoting Oglesby v. Gen. Motors Corp., 190 F.3d 244,

250 (4th Cir. 1999)); see generally General Elec. Co. v. Joiner, 522 U.S. 136, 143 (1997).

The district court cited its conclusions in a previous case to address Defendants’

arguments on this issue. This might present a problem in another case. But as the district

court observed, the previous case was argued by the same attorneys, who made identical

arguments. In these circumstances, the district court did not abuse its discretion by relying

on the prior decision.

24a

Our role is to decide whether the district court abused that discretion, “not to determine the

admissibility or inadmissibility of [firearm toolmark examination] for all cases.” United

States v. Hunt, 63 F.4th 1229, 1244 (10th Cir. 2023) (alteration in original) (quoting United

States v. Baines, 573 F.3d 979, 989 (10th Cir. 2009)).

In exercising its discretion, the court may address concerns with expert testimony

through less dramatic remedies than exclusion. Because Daubert analysis “is not intended

to serve as a replacement for the adversary system, . . . the rejection of expert testimony is

the exception rather than the rule.” United States v. Smith, 919 F.3d 825, 835 (4th Cir.

2019) (cleaned up). Thus, even “shaky but admissible evidence” should be addressed

through “vigorous cross-examination, presentation of contrary evidence, and careful

instruction on the burden of proof,” not through “wholesale exclusion by the trial judge.”

In re Lipitor, 892 F.3d at 631 (cleaned up). That is equally true of forensic evidence. As

the Supreme Court reasoned in Melendez-Diaz, while forensic sciences have faced

increased scrutiny, “there is little reason to believe that confrontation will be useless in

testing analysts’ honesty, proficiency, and methodology — the features that are commonly

the focus in the cross-examination of experts.” 557 U.S. at 321.

The district court did not abuse its discretion in finding that Defendants’ concerns

with the reliability of forensic toolmark analysis could be addressed through confrontation,

rather than exclusion. In the proceedings below, Defendants argued that toolmark analysis

relies on subjective, ill-defined standards; that it may produce erroneous matches between

guns from similar production batches; and that these uncertainties are vulnerable to bias.

The district court addressed these concerns by instructing the Government not to overstate

25a

the accuracy of its experts’ conclusions, 8 and by advising Defendants to impeach them

before the jury. And Defendants did exactly that, questioning each expert on the accuracy,

reliability, and subjectivity of their methods. Because confrontation is the preferred vehicle

for litigating these concerns, we cannot say that the district court abused its discretion by

permitting Defendants to challenge these experts at trial, rather than keeping this evidence

from the jury.

Defendants also argue that the court abused its discretion by denying their motion

without holding a Daubert hearing. We disagree. “A trial court has ‘considerable leeway

in deciding in a particular case how to go about determining whether particular expert

testimony is reliable.’” McKiver, 980 F.3d at 961 (quoting Kumho Tire, 526 U.S. at 152).

As the district court noted, Defendants argued solely that forensic toolmark evidence is

categorically inadmissible, and did not present any fact-specific challenge to the forensic

experts who testified in this case. Because “the district court had sufficient information”

to address Defendants’ categorical argument, “the district court here was entitled to rely on

the parties’ materials without requiring further submissions or a Daubert hearing.” Id.

Defendants note that Juliana Red Leaf testified on cross that she has a “zero” error

rate, and has never made an “incorrect identification or elimination.” But because

Defendants did not object to this testimony, we review it only for plain error. See United

States v. Zayyad, 741 F.3d 452, 459 (4th Cir. 2014). Given the mountain of corroborating

evidence and the passing nature of this assertion, we conclude that Red Leaf’s remark had

no effect on Defendants’ substantial rights. See Greer v. United States, 593 U.S. 503, 507–

08 (2021).

26a

In addition to Defendants’ challenge to the denial of their motion in limine, Douglas

challenges the denial of his motion to reappoint counsel. “[T]he Sixth Amendment protects

a defendant’s ‘right to counsel at all critical stages of the criminal process.’” United States

v. Cohen, 888 F.3d 667, 681 (4th Cir. 2018) (quoting Marshall v. Rodgers, 569 U.S. 58,

62 (2013)). That safeguard includes a concomitant right “to voluntarily and intelligently

elect to proceed without counsel.” Id. (citing Faretta v. California, 442 U.S. 806, 807

(1975)). But once a defendant has foregone representation, “the right to counsel is no

longer unqualified.” Id. (cleaned up). Should a pro se defendant reassert his right to

counsel, the court may consider (1) “the defendant’s motive in seeking to rescind his pro

se status”; (2) “the timeliness of [the] renewed request for counsel;” and (3) the balance of

the defendant’s interests and “the countervailing public interest in proceeding on

schedule.” Id. (cleaned up). 9

Douglas had a contentious relationship with his court-appointed attorney, Harry

Harmon, Jr., and before trial, Douglas repeatedly changed his mind as to whether Harmon

could represent him. 10 Throughout proceedings, he accused Harmon of collaborating with

Douglas relies on United States v. Gallop, 838 F.2d 105 (4th Cir. 1998), for the

proposition that the district court should have considered: (1) the timeliness of the motion;

(2) the adequacy of the court’s inquiry into the conflict between the defendant and his

attorney; and (3) the extent of the breakdown in communication. Id. at 107. But the Gallop

factors contemplate situations where a represented defendant seeks to replace his courtappointed attorney due to a collapse of the attorney-client relationship. Those factors do

not apply when a pro se defendant seeks to reassert his right to counsel.

Harmon was not the first attorney with whom Douglas had a difficult relationship.

The court appointed Anthony M. Gantous to represent Douglas at his initial appearance in

(Continued)

27a

the prosecution, withholding discovery, and refusing to file meritorious motions. He twice

asked to proceed pro se, before withdrawing these requests and informing the court that he

was satisfied with Harmon’s representation. But one month before trial, he filed a third

motion to proceed pro se, and the district court granted that motion in part — appointing

Harmon as standby counsel, subject to the following limitations:

Mr. Harmon is not to give advice to Defendant concerning the significance

of any of the evidence, is not to give advice regarding legal strategy, and

should not perform any research on behalf of Defendant. Should defendant

wish for his stand-by counsel to take a larger role in his defense, Defendant

may submit a motion requesting to have Mr. Harmon re-appointed and

agreeing to relinquish his pro se status. But Defendant cannot have it both

ways, nor can Defendant utilize his election to proceed pro se as a means to

delay trial regardless of whether he proceeds to trial pro se or submits a

request asking that Mr. Harmon be re-appointed.

On October 20, 2019, following three days of jury selection and on the Saturday before

opening statements, Douglas moved to relinquish his pro se status and reappoint Harmon,

asserting that he had reviewed discovery and reevaluated his options. The district court

denied this motion, observing that it had been filed on the eve of trial, and that it would

place Harmon in an “untenable position.”

In so ruling, the court did not abuse its discretion. We have recognized that judges

have wide latitude to deny a late-breaking motion for substitution of counsel. See United

States v. McQueen, 445 F.3d 757, 761 (4th Cir. 2006); United States v. Corporan-Cuevas,

35 F.3d 953, 956 (4th Cir. 1994) (“[A] motion . . . on the first day of trial . . . would clearly

be untimely under all but the most exigent circumstances”). Such last-minute motions

May 2018. In October 2018, Douglas filed a motion to substitute counsel, and the court

granted this motion, appointing Harmon in Gantous’ stead.

28a

place considerable strain on the ability of court and counsel to prepare for trial, and

seriously undermine the public’s “interest in proceeding on schedule.” Cohen, 888 F.3d at

681 (cleaned up). As we explained in United States v. West:

A criminal defendant has a constitutional right to defend himself; and with

rights come responsibilities. If at the last minute he gets cold feet and wants

a lawyer to defend him he runs the risk that the judge will hold him to his

original decision in order to avoid [a] disruption of the court’s schedule [by]

a continuance granted on the very day that trial is scheduled to begin[.]

877 F.2d 281, 286 (4th Cir. 1981) (quoting United States v. Solina, 733 F.2d 1208, 1211–

12 (7th Cir. 1984)). Here, the trial court did not abuse its discretion in denying Douglas’s

motion, filed as it was on the eve of opening statements. Indeed, when the court allowed

Douglas to proceed pro se, it warned him about such last-minute requests precisely because

of the potential for delays. 11

Douglas argues that Harmon was prepared to step in, and that the court’s refusal of

his request defeats the purpose of appointing standby counsel. But a pro se defendant has

no Sixth Amendment right to standby counsel or hybrid representation, and district courts

have broad discretion to decide how much assistance, if any, standby counsel may provide.

United States v. Beckton, 740 F.3d 303, 307 (4th Cir. 2014); see also McKaskle v. Wiggins,

465 U.S. 168, 183 (1984) (“A defendant does not have a constitutional right to choreograph

Although the court cited hardship to Harmon, the substance of the district court’s

discussion focused on the last-minute nature of this motion. The court cited United States

v. Corporan-Cuevas, 35 F.3d 953 (4th Cir. 1994), as authority for its denial of the motion,

discussing the effects that a motion filed “on the first day of trial” would have on “the

countervailing state interest in proceeding with prosecutions on an orderly and expeditious

basis.” Id. at 956. Those effects are obvious. Bringing counsel up to speed, and allocating

time to prepare, would create a high possibility for delay.

29a

special appearances by counsel.”). Once Douglas relinquished his right to counsel, that

right was no longer absolute, and the court had discretion to decide what level of assistance

Harmon could provide in his capacity as standby counsel. The court did not abuse that

discretion by declining to expand Harmon’s role at the eleventh hour. 12

Next, Defendants Nixon, Taybron, Richardson, and Palmer appeal the denial of their

motions for judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal

Procedure, arguing that the Government failed to offer sufficient evidence to support their

convictions. “We review the denial of a motion for judgment of acquittal de novo.” United

States v. Savage, 885 F.3d 212, 219 (4th Cir. 2018).

On a defendant’s motion, a court “must enter a judgment of acquittal of any offense

for which the evidence is insufficient to sustain a conviction.” Fed. R. Crim. P. 29(a). A

defendant challenging the sufficiency of the evidence bears a “heavy burden” to overturn

his conviction. United States v. Clarke, 842 F.3d 288, 297 (4th Cir. 2016). That is because

all reasonable inferences are drawn in favor of the prosecution, United States v. Hicks, 64

F.4th 546, 550 (4th Cir. 2023), with the presumption that the jury resolved all evidentiary

conflicts in the Government’s favor, United States v. Burfoot, 899 F.3d 326, 334 (4th Cir.

We also note that Douglas was not left entirely without assistance during the trial.

Throughout proceedings, counsel for Douglas’s co-defendants filed motions on behalf of

all seven defendants, often addressing the most pressing issues in the case. See, e.g., James

v. Harrison, 389 F.3d 450, 456 (4th Cir. 2004) (discussing situation in which “counsel for

co-defendants were present and generally protected the defendant’s interests” (citing

United States v. Jackson, 207 F.3d 953 (2000))).

30a

2018). Thus, we will not disturb the verdict if, “after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” United States v. Millender, 970 F.3d

523, 528 (4th Cir. 2020) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

Eric Nixon and Ryan Taybron contend they were entitled to a judgment of acquittal

on charges of attempted murder and § 924(c) counts arising from two shootings that took

place in early 2017. As discussed above, “there are two essential elements to an attempted

murder prosecution under Virginia law: (1) a ‘specific intent to kill the victim’; and

(2) some overt act in furtherance of that intent.” Simmons, 11 F.4th at 271 (quoting

Herring, 758 S.E.2d at 235). Nixon challenges the denial of his individual motion by

arguing that the Government offered insufficient evidence for a jury to find he shot Darrell

Pittman. Taybron and Nixon contest the denial of their joint motion by arguing that the

Government produced insufficient evidence of their intent to kill during a shootout with

the Chestnut Gang. Both arguments fail.

We begin with Eric Nixon’s individual argument. Counts 23 and 24 charged Nixon

with attempting to murder Darrell Pittman, of the Newsome Park Gang, on February 26,

2017. Early that day, a member of the Bang Squad shot Pittman in the head while he was

leaving the Aqueduct apartments in Newport News, Virginia. Pittman survived, and was

transported to a hospital, where he informed police officers that he’d been shot by “Nix

from 3-6” regarding an “old beef.” Acting on this information, officers arrested Nixon and

31a

Green at a Day’s Inn in Hampton, Virginia, with a Glock 23 handgun in their possession.

That firearm matched eleven shell casings retrieved from the scene of the shooting, and

Shaquone Mercer testified she had purchased the handgun for Nixon three weeks earlier,

at his instructions.

At trial, the defense called Pittman, who denied saying that Nixon had shot him and

identified two other individuals as the shooters. But ballistics evidence connected Nixon

to the shooting, and four witnesses testified that he was responsible. Newport News police

officer Eric Nunez confirmed that Pittman had identified Nixon while he was in the hospital

on the day of the shooting. In addition, Ford, Green, and Sweetenburg all testified that

Nixon told them he shot Pittman — Nixon told Ford that “he caught [Pittman] coming out

of Aqueduct”; told Sweetenburg that he’d shot Pittman in the head; and told Green that

Pittman “flopp[ed] like a fish.” This evidence, viewed in the Government’s favor, is more

than enough for a jury to find that Nixon shot Pittman.

Nixon argues that Pittman was the sole eyewitness to the shooting, and that it would

be irrational for the jury to convict Nixon following Pittman’s testimony. Of course, “[a]

jury is entitled to make only reasonable inferences from the evidence,” United States v.

Samad, 754 F.2d 1091, 1097 (4th Cir. 1984) (cleaned up), but “it is the jury’s province to

weigh the credibility of the witnesses, and to resolve any conflicts in the evidence.” United

States v. Dinkins, 691 F.3d 358, 387 (4th Cir. 2012). Moreover, on appeal, we “assume

that the jury resolved any conflicting evidence in the prosecution’s favor.” United States

v. Robinson, 55 F.4th 390 (4th Cir. 2022) (cleaned up). The jury was not required to accept

Pittman’s recantation — or to discount the volume of evidence that Nixon was the shooter.

32a

The testimony by Nunez, Mercer, Ford, Green, and Sweetenburg, and the forensic evidence

connecting Nixon’s firearm to the crime scene, gave the jury ample reason to credit

Pittman’s statements on the day of the shooting over his conflicting trial testimony.

Nixon and Taybron’s joint argument fares no better. Count 21 charged these two

defendants with attempted murder in relation to the January 2, 2017, shootout with several

members of the rival Chestnut Gang. The Government relied largely on Ford’s testimony

to establish a narrative of the encounter. According to Ford, while he was driving Taybron

and Nixon through Chestnut Gang territory, Taybron spotted Chestnut Gang members

outside a convenience store, and instructed Ford to pull over. They parked around a corner,

and the defendants told Ford to give Taybron his gun. Taybron and Nixon approached on

foot, and began “jawing” at the rival gang members for about five minutes. Ford grew

concerned that Taybron and Nixon were “taking too long to shoot,” so he got out of the

vehicle to retrieve his firearm. As Ford approached, one of the Chestnut gangsters fired a

shot, and Taybron and Nixon returned fire, emptying the clips in their guns before

retreating to the car.

Taybron and Nixon argue that Ford’s testimony is insufficient to show they intended

to kill anyone during this incident. They argue that the shootout was a chance encounter,

and that it does not resemble the Bang Squad’s systematic hunts for rival gang members.

They also insist it would be irrational to infer that they intended to shoot, because they

approached outnumbered, spoke to their rivals for five minutes, and fired only when fired

upon. But the weight of the evidence is committed to the jury. See, e.g., United States v.

33a

Wysinger, 64 F.4th 207, 211 (4th Cir. 2023); United States v. Dennis, 19 F.4th 656, 670

(4th Cir. 2021). Our responsibility is only to determine whether there is enough evidence

to sustain the jury’s verdict — not to substitute our judgment for that of the factfinder, and

decide for ourselves whether the jury got it right. See, e.g., Savage, 885 F.3d at 219

(explaining that we will uphold a jury verdict so long as it is supported by “evidence that

a reasonable finder of fact could accept as adequate and sufficient to support a conclusion

of a defendant’s guilt beyond a reasonable doubt” (cleaned up)).

Ford’s testimony provided abundant evidence for a jury to conclude that Taybron

and Nixon wanted to kill the members of the Chestnut Gang, even if the shootout initially

began as a chance encounter. The record contained ample evidence that the Bang Squad

regularly provoked its rivals by taunting them and venturing into their territory. Although

Ford’s narrative suggests that Taybron and Nixon did not set out to go “op shopping” —

to hunt opposing gang members — the jury could reasonably have concluded that Taybron

and Nixon made the decision to kill their adversaries when they spotted them during the

drive. And while the tactics employed by Taybron and Nixon could suggest that they

intended merely to confront their rivals, not to kill them, the jury did not need to draw that

inference. See Wysinger, 64 F.4th at 211 (“[I]f the evidence supports different, reasonable

interpretations, the jury decides which interpretation to believe.” (quoting United States v.

Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997))).

34a

Deshaun Richardson and Raymond Palmer challenge their convictions on Count 1,

charging them with conspiracy to commit racketeering, in violation of 18 U.S.C. § 1962(d).

To prove a RICO conspiracy, the Government must show: (1) “that an enterprise affecting

interstate commerce existed”; (2) “that each defendant knowingly and intentionally

agreed” to conduct or participate in its affairs; and (3) “that each defendant knowingly and

willfully agreed that he or some other member of the conspiracy would commit at least two

racketeering acts.” Mathis, 932 F.3d at 258 (cleaned up). Richardson and Palmer contend

that the Government offered insufficient evidence for the jury to find that they agreed to

the commission of at least two racketeering acts. Their arguments fail.

We begin with Deshaun Richardson. In addition to the RICO conspiracy at issue in

Count 1, the Government charged Richardson with four counts arising from the April 6,

2015, murders of Domingo Davis and Jada Richardson (Counts 6–9). Forensic expert

Juliana Red Leaf opined that a handgun Richardson carried on the day of the double

murders matched bullets and shell casings recovered from the crime scene. In addition,

four cooperating Bang Squad members testified at trial, and tied Richardson to the murders:

Corey Sweetenburg testified that Richardson, Hunt, Green, and Harris left the Marshall

Courts apartments before the murders to hunt for Davis; Racquille Jackson recounted that

the quartet convened at his mother’s house to lie low, and told him about the shootings;

and Jarrell Atkins and Jamaree Green each claimed that Richardson was one of the gunmen.

35a

Finally, one hour after the murders, Richardson sent Hunt a message urging him to delete

social media posts that referred to “busting” his “opp[s].”

On this evidence, the jury convicted Richardson on Count 1, the RICO conspiracy.

But it acquitted Richardson on Counts 6 through 9, which charged him with the double

murders. Richardson maintains that the Government presented an “all-or-nothing” theory

of the case — either he was the fourth shooter, or he was not involved. Because the jury

rejected that theory, and made a finding that he did not aid or abet the killings, Richardson

contends that there is insufficient evidence of his involvement in the conspiracy to sustain

a conviction on Count 1.

This argument boils down to the notion that a conviction on the RICO conspiracy

charge is incompatible with an acquittal on the predicate murder counts. But “[a] defendant

cannot challenge his conviction merely because it is inconsistent with a jury’s verdict of

acquittal on another count.” United States v. Legins, 34 F.4th 304, 316 (4th Cir. 2022)

(cleaned up); United States v. Louthian, 756 F.3d 295, 305 (4th Cir. 2014); Wiggins v.

Boyette, 635 F.3d 116, 127 (4th Cir. 2011). After all, “an inconsistent verdict can result

from mistake, compromise, or lenity, and a jury could just as likely err in acquitting as

convicting.” Legins, 34 F.4th at 316 (cleaned up). Because a court cannot divine the jury’s

intentions, “a reviewing court’s assessment of the reason for the inconsistency would be

based either on pure speculation, or would require inquiries into the jury’s deliberations.”

Id. at 316 (cleaned up). Courts rarely tread such treacherous waters.

Accordingly, the mere fact that Richardson was acquitted on the counts arising from

the Davis/Richardson murders does not undermine his conviction of the RICO conspiracy.

36a

See United States v. Tinsley, 800 F.2d 448, 450–52 (4th Cir. 1986) (holding that an acquittal

on one of two charged racketeering acts did not invalidate convictions for substantive

racketeering, and for racketeering conspiracy); see also United States v. Tisdale, 980 F.3d

1089, 1096 (6th Cir. 2020). Innumerable factors may have led to this split decision. The

jury may have found that Richardson agreed to the murders, but played no role in carrying

them out. It may have discounted Sweetenburg’s claim that Richardson was one of the

four who left Marshall Courts that morning. Or it may have found the forensic evidence

too uncertain to reach a conviction beyond a reasonable doubt. Whatever the reason may

be, we will not “reverse engineer the jury’s thought processes,” and speculate as to why

the jury reached the outcome it did. See Campbell v. Boston Sci. Corp., 882 F.3d 70, 75

(4th Cir. 2018).

Richardson also argues that the Government offered no evidence that he committed

any racketeering acts himself. This argument is a nonstarter. We have recognized that “a

defendant can conspire to violate RICO . . . without ‘himself commit[ing] or agree[ing] to

commit the two or more’ acts of racketeering activity.” United States v. Mouzone, 687

F.3d 207, 218 (4th Cir. 2012) (quoting Salinas v. United States, 522 U.S. 52, 62 (1997)). 13

It is enough that the defendant “adopt the goal of furthering or facilitating the criminal

As our sister circuits have noted, the RICO conspiracy statute is designed to reach

“an actor who does not himself commit or agree to commit the two or more predicate acts

requisite to the underlying offense.” See, e.g., United States v. Randall, 661 F.3d 1291,

1297 (10th Cir. 2011) (quoting Salinas, 522 U.S. at 65). If the Government was required

to prove that a defendant committed specific racketeering acts to obtain a conviction for a

RICO conspiracy, “Section 1962(d) would . . . become a nullity,” as it would require the

same proof as a substantive RICO offense. See United States v. Glecier, 923 F.2d 496, 501

(7th Cir. 1991).

37a

endeavor,” Simmons, 11 F.4th at 255 (quoting Salinas, 522 U.S. at 65), by agreeing “that

a member of the enterprise would perform at least two racketeering acts,” United States v.

Pinson, 860 F.3d 152, 161 (4th Cir. 2017).

There was ample evidence for the jury to find Richardson agreed to the commission

of multiple murders and attempted murders, even if he did not personally commit them.

As discussed above, Atkins, Green, Sweetenburg, and Jackson testified as to Richardson’s

participation in discussions about the double murders. Moreover, Richardson’s social

media activity, including his admonition to Hunt to delete his status one hour after the

murders, and his message in a group chat asking other gang members why they didn’t “pop

Dwayne [Dozier],” permits an inference of broad involvement in the Bang Squad’s efforts

to hunt and kill its rivals. Accordingly, “the jury’s verdict is not necessarily inconsistent.”

Legins, 34 F.4th at 316. Even if Richardson did not commit any of these shootings himself,

the jury could reasonably find he participated in the conversations around these offenses,

and agreed that they would be carried out. 14

The Government produced no direct evidence that Palmer agreed to the commission

of two racketeering acts. But the prosecution offered circumstantial evidence that he did

so. See United States v. Tillmon, 954 F.3d 628, 640 (4th Cir. 2019) (“Due to the clandestine

nature of a conspiracy, the offense is often proved by circumstantial evidence and the

Moreover, the Government presented evidence at trial connecting Richardson to

various robberies and drug offenses. While the Government dismissed Richardson from

the related counts before the prosecution submitted its case, the underlying evidence may

still be relied on to support a RICO conspiracy conviction. See Tinsley, 800 F.2d at 450.

38a

context in which circumstantial evidence is adduced.”). Witnesses testified that Palmer

sold marijuana in the Bang Squad’s territory, retrieved a firearm to protect Jarrell Atkins

from an investigation, and took part in the midnight shooting of Dwayne Dozier’s home.

In sum, Palmer protected the Bang Squad, sold drugs in the gang’s territory, and retaliated

against its foes.

Palmer argues that the Dozier shooting cannot be a valid predicate, as it was charged

only as an armed assault rather than an attempted murder, and that his marijuana sales have

no connection to the gang. We are not persuaded. Because a racketeering conspiracy is

not contingent on specific predicates, the Government’s decision to charge the Dozier

home shooting as an armed assault is irrelevant. See United States v. Barronette, 46 F.4th

177, 207 (4th Cir. 2022) (holding that the Government need not charge specific predicates);

Tinsley, 800 F.2d at 450 (holding that a jury may convict on a RICO conspiracy charge

while acquitting on predicate acts). And because Palmer was a member of the Bang Squad,

and the Government offered testimony that the Bang Squad confronted, fought, or shot

others who sold drugs in its territory, the jury could infer that Palmer’s drug sales were

gang activity, or that they were carried out with its approval. See United States v. Marino,

277 F.3d 11, 27 (1st Cir. 2002) (“A sufficient nexus or relationship exists between the

racketeering acts and the enterprise if the defendant was able to commit the predicate acts

by means of . . . his association with the enterprise.”).

Moreover, the Government need not identify the specific racketeering acts that the

defendant agreed would be committed. United States v. Cornell, 780 F.3d 616, 625 (4th

Cir. 2015). “[T]he object of a RICO conspiracy is ‘to engage in racketeering,’ not to

39a

commit each predicate racketeering act.” United States v. Gutierrez, 963 F.3d 320, 343

(4th Cir. 2020) (quoting United States v. Garcia, 754 F.3d 460, 482 (7th Cir. 2014)). Thus,

the Government need only prove that the defendant “agree[d] to pursue the same criminal

objective as that of the enterprise,” Mathis, 932 F.3d at 260, by establishing “the types of

racketeering acts that members of the conspiracy agreed to commit,” Cornell, 780 F.3d

at 625. The evidence against Palmer is clear on that count. Even if the foregoing incidents

are not valid racketeering predicates, they are circumstantial evidence that Palmer assented

to the Bang Squad’s essential racketeering conduct: murder. Palmer’s participation in one

retaliatory shooting, and his retrieval of a firearm following another, constitutes evidence

that he knew the gang used murder to exert its influence and protect its territory, and that

he agreed to advance its violent objectives.

VI.

Because the Chestnut Gang members fired first in the shootout on January 2, 2017,

Taybron and Nixon sought a jury instruction on self-defense, and the court provided one.

But while the defendants requested a justifiable self-defense instruction, the court instead

instructed the jury only on a theory of excusable self-defense. We review the district

court’s refusal to give a jury instruction for abuse of discretion. United States v. Hassler,

992 F.3d 243, 246 (4th Cir. 2021). Given that the undisputed facts preclude a theory of

justifiable self-defense, we affirm.

“Virginia law recognizes two forms of self-defense to criminal acts of violence: selfdefense without fault (‘justifiable self-defense’) and self-defense with fault (‘excusable

40a

self-defense’).” Bell v. Commonwealth, 788 S.E.2d 272, 275 (Va. 2016); Osman v. Osman,

737 S.E.2d 876, 880 (Va. 2013); Yarborough v. Commonwealth, 234 S.E.2d 286, 289 (Va.

1993). An act of self-defense is justifiable if the defendant acted “without any fault on his

part in provoking or bringing on the difficulty.” Osman, 737 S.E.2d at 880 (cleaned up).

Self-defense is merely excusable if the defendant bore “some fault” in bringing about the

encounter. Id. The practical impact of these theories lies in the duty to retreat: A defendant

who is at fault in the encounter must retreat “as far as possible” and “announce[] his desire

for peace” before using force in his defense, while a defendant without fault need not do

so. Bell, 788 S.E.2d at 276 (cleaned up). Because Taybron and Nixon returned fire before

retreating to Ford’s car, they argue that the district court’s decision to instruct the jury only

on excusable self-defense, and not justifiable self-defense, prejudiced their case.

But the Supreme Court of Virginia has clearly held that where “a defendant is even

slightly at fault, the killing is not justifiable homicide.” Avent v. Commonwealth, 688

S.E.2d 244, 259 (Va. 2010) (quoting Perricillia v. Commonwealth, 326 S.E.2d 679, 685

(Va. 1985)). In Avent, the victim attacked the defendant first — knocking him to the

ground and choking him — but broke off the encounter and retreated upstairs. Id. at 249,

259. Concerned that the victim was retrieving a firearm, the defendant followed him,

carrying a shotgun. Id. Upstairs, the victim assaulted the defendant with a wooden board,

and the defendant shot him, knocked him over, and bludgeoned him, causing his death. Id.

The defendant was convicted of murder, and the Supreme Court of Virginia affirmed. Id.

While the victim was the aggressor in the fatal encounter, the court held that the defendant

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“was not entitled to a justifiable homicide jury instruction due to his fault in bringing on

the difficulty by pursuing [the victim] upstairs.” Id. at 259.

Avent indicates that any degree of fault on the part of the defendant, even the act of

following the victim after a heated altercation, precludes a claim of justifiable self-defense.

Smith v. Commonwealth, 435 S.E.2d 414, 416 (Va. 1993) (“Any form of conduct by the

accused from which the fact finder may reasonably infer that the accused contributed to

the affray constitutes fault.” (cleaned up)). 15 Taybron and Nixon did much more than that:

They armed themselves, confronted a rival gang in hostile territory, and kicked off a fiveminute shouting match that ended in gunfire. On these facts, it would be impossible for a

jury to conclude that Taybron and Nixon are not at least “slightly at fault” in the encounter.

Avent, 688 S.E.2d at 259.

Citing Jones v. Commonwealth, Taybron and Nixon argue that words alone cannot

establish provocation. See 833 S.E.2d 918, 930 (Va. Ct. App. 2019). But this rule pertains

to the provocation element of manslaughter — not to the question of whether a defendant

bears no fault in causing a confrontation, as required for a claim of justifiable self-defense.

To reduce a homicide to manslaughter, the defendant must show that he killed “in the heat

of passion and [upon] reasonable provocation,” referring to a state of rage or fear “which

renders a person deaf to the voice of reason.” Washington v. Commonwealth, 878 S.E.2d

In certain cases, it may be necessary for the trial court to issue both instructions,

reserving the question of fault for the factfinder. See, e.g., Bell, 788 S.E.2d at 276 (holding

that the trial court erred in issuing only an excusable self-defense instruction, and not a

justifiable self-defense instruction, where witnesses testified that the victim approached the

defendant, pulled out a gun, and made a hostile remark). But because the critical facts are

undisputed here, the district court was not required to do so.

42a

430, 436 (Va. Ct. App. 2022) (cleaned up). That concept has no relation to whether the

defendant bears “any fault” in contributing to a fatal encounter, an inquiry that resembles

causation. See Osman, 737 S.E.2d at 880; Smith, 435 S.E.2d at 416. While “[w]ords alone

are never sufficient reasonable provocation” to reduce a homicide to manslaughter, Jones,

833 S.E.2d at 926, words can certainly contribute to the lethal escalation of an encounter.

Cf. Washington, 878 S.E.2d at 435 (affirming denial of justifiable self-defense instruction

where appellant approached the victim, started a heated verbal exchange, and shot the

victim at its climax). 16

VII.

Richardson argues that the court erroneously enhanced his sentence under Count 1

based on the murders of Domingo Davis and Jada Richardson. “On a challenge to a district

court’s application of the Guidelines, we review questions of law de novo and findings of

fact for clear error.” United States v. Allen, 909 F.3d 671, 677 (4th Cir. 2018) (cleaned up).

A factual finding is clearly erroneous if, upon reviewing the entire record, we are “left with

Defendants further cite Jordan v. Commonwealth for the proposition that “insults

and threats” are never a “provocative act.” 252 S.E.2d 323, 325 (Va. 1979). This argument

misstates Jordan’s holding. In Virginia, a defendant cannot claim self-defense unless the

victim engaged in “some overt act indicative of imminent danger.” Commonwealth v.

Cary, 623 S.E.2d 906, 912 (Va. 2006) (cleaned up). In Jordan, the Supreme Court of

Virginia held that a victim’s “words and threats” could not constitute such an “overt act . . .

that would justify a plea of self-defense.” 252 S.E.2d at 325. While a defendant cannot

claim self-defense based solely on a victim’s threatening words, that principle is irrelevant

in determining whether the defendant bears some fault in contributing to a dangerous

encounter.

43a

the definite and firm conviction that a mistake has been committed.” United States v.

Barnett, 48 F.4th 216, 220 (4th Cir. 2022) (cleaned up).

The court calculated Richardson’s base offense level by applying U.S.S.G. § 2E1.1,

which governs racketeering convictions. That provision sets the offense level at the greater

of 19 or the base offense level of the predicate racketeering activity — in this case, murder.

U.S.S.G. § 2E1.1(a). The district court relied on the latter, raising Richardson’s base

offense level to 43, the maximum permitted by the United States Sentencing Guidelines,

after applying a cross-reference to U.S.S.G. § 2A1.1(a), which governs first degree murder.

See U.S.S.G. § 2A1.1 cmt. 1 (permitting this cross-reference “in cases in which the offense

level . . . is calculated using the underlying crime (e.g., murder in aid of racketeering)”).

Coupled with Richardson’s criminal history category of V, this calculation yielded a

guidelines range of 240 months’ imprisonment. Acknowledging Richardson’s lack of

personal involvement in the Bang Squad shootings, the court sentenced him to 204 months,

36 months below the guidelines range.

Richardson maintains that the cross-reference to U.S.S.G. § 2A1.1 was clear error,

because the jury acquitted him of the Domingo Davis and Jada Richardson murders. As

an initial matter, it is firmly established that “a jury’s verdict of acquittal does not prevent

the sentencing court from considering conduct underlying the acquitted charge[s], so long

as that conduct has been proven by a preponderance of the evidence.” United States v.

Medley, 34 F.4th 326, 335 (4th Cir. 2022) (quoting United States v. Watts, 519 U.S. 148,

157 (1997)). After all, because the Sentencing Guidelines are advisory, the sentencing

judge “could disregard the Guidelines and apply the same sentence,” provided he does not

44a

exceed the statutory maximum applicable to the offense of conviction. Id. at 336 (quoting

United States v. Grubbs, 585 F.3d 793, 799 (4th Cir. 2009)).

But in any event, the district court did not find that Richardson committed the double

murders. At sentencing, the Government argued he was liable for the Davis/Richardson

murders on a theory of personal liability. See U.S.S.G. § 1B1.3(a)(1)(A) (instructing

sentencing court to consider “all acts and omissions committed, aided, abetted, counseled,

commanded, induced, procured, or willfully caused by the defendant”). But the district

court instead found Richardson was responsible for the murders on a theory of conspirator

liability, focusing on his conversations with the shooters before and after the murders. See

U.S.S.G. § 1B1.3(a)(1)(B) (directing court to consider foreseeable acts of co-conspirators

committed within the scope of a conspiracy, and in furtherance of that conspiracy). That

finding is not erroneous, much less clearly so. The Government charged the Davis and

Richardson murders as VICAR murders precisely because they were carried out as part of

the Bang Squad’s systematic efforts to hunt and kill its rivals, and fell within the scope of

its racketeering conspiracy.

Richardson further argues that the jury’s special verdict precludes a sentencing

finding based on conspirator liability. We have referenced a “non-contradiction principle

which prohibits the district court from finding facts by a preponderance of the evidence

that contravene the jury’s finding beyond a reasonable doubt.” United States v. Mitchell,

493 F. App’x 440, 441–42 (4th Cir. 2012) (citing United States v. Curry, 461 F.3d 452,

460–61 (4th Cir. 2006)). Assuming without deciding that this principle remains good

45a

law, 17 it is not implicated here. On the verdict form for Count 1, the jury found Richardson

had not “committed, or aided, abetted, counseled, commanded, induced or procured” the

Domingo Davis and Jada Richardson murders. JA 6725–27. This language tracks with

U.S.S.G. § 1B1.3(a)(1)(A), and contemplates only personal or accomplice liability. It does

not conflict with the sentencing court’s findings pursuant to U.S.S.G. § 1B1.3(a)(1)(B),

which relied exclusively on conspirator liability.

VIII.

Finally, Defendants collectively argue that the district court abused its discretion by

denying their motion for a mistrial, which they filed in response to a witness’s comments

about an uncharged murder. We review a district court’s decision on a motion for mistrial

for abuse of discretion, and we reverse only in “the most extraordinary of circumstances.”

United States v. Recio, 884 F.3d 230, 239 (4th Cir. 2018) (cleaned up). Circumstances are

far from extraordinary here.

In our system of justice, “the law does not allow consideration of other crimes as

evidence of a defendant’s criminal disposition.” United States v. Foutz, 540 F.2d 733, 736

Mitchell is unpublished, and this issue has divided our sister circuits. Compare

United States v. Pimentel-Lopez, 859 F.3d 1134, 1142 (9th Cir. 2016) (vacating sentence

where judge’s findings contradicted jury’s special verdict), with United States v. Webb,

545 F.3d 673, 677 (8th Cir. 2008); United States v. Magallanez, 408 F.3d 672, 685 (10th

Cir. 2005); United States v. Smith, 308 F.3d 726, 745–46 (7th Cir. 2002) (permitting such

contradiction).

46a

(4th Cir. 1976); see also Fed. R. Evid. 404(b). 18 But that does not mean that any reference

to an uncharged offense, no matter how brief and attenuated it may be, compels a mistrial.

Before granting a mistrial, “the district court should consider whether there are less drastic

alternatives to a mistrial that will eliminate any prejudice.” United States v. Hayden, 85

F.3d 153, 157 (4th Cir. 1996). And because “we generally follow the presumption that the

jury obeyed the limiting instructions of the district court,” United States v. Williams, 461

F.3d 441, 451 (4th Cir. 2006) (cleaned up), “no prejudice exists if the jury could make

individual guilt determinations by following the court’s cautionary instructions,” United

States v. Hart, 91 F.4th 732, 745 (4th Cir. 2024) (cleaned up).

Accordingly, we have affirmed the denial of mistrial motions based on a witness’s

improper reference to an uncharged offense where the reference was brief, and the court

promptly instructed the jury to disregard it. E.g., United States v. Collins, 372 F.3d 629,

634 (4th Cir. 2004); United States v. Vogt, 910 F.2d 1184, 1192–93 (4th Cir. 1990); United

States v. Morrow, 731 F.2d 233, 235 n.4 (4th Cir. 1984). Most recently, in United States

v. Zelaya, a witness testified that the defendant “told her that she would cry for her son like

she cried for ‘Hugo,’” and that “Hugo was ‘the guy [defendants] had killed before.’” 908

F.3d 920, 929–30 (4th Cir. 2018). Because the defendants were not charged with the Hugo

murder, defense counsel promptly moved for a mistrial. Id. The court denied this motion,

Of course, exceptions exist for reliable evidence introduced for reasons other than

character, provided it is necessary to prove the context or elements of the charged offense.

See United States v. Byers, 649 F.3d 197, 206 (4th Cir. 2011). But because the Government

did not invoke these exceptions below, we do not address them here. See Fed. R. Evid.

404(b)(3) (requiring prosecution to provide notice of his intent to introduce such evidence).

47a

and we affirmed, observing that the Government asked the witness nothing further about

the Hugo murder; that the Hugo murder was not referenced again at trial; and that the court

instructed the jury to disregard any uncharged offense. Id.

Such is the case here. On the thirteenth day of trial, during the Government’s direct

examination of Corey Sweetenburg, the prosecutor asked Sweetenburg why he had elected

to cooperate with the investigation. Sweetenburg explained that he had decided to come

forward when Nixon and Taybron were “locked up for the Ralph murder.” Defendants

immediately objected and requested a mistrial. After a bench colloquy and a brief recess,

the court denied the mistrial motion, but sustained the objection, struck the objectionable

testimony, and issued an extensive curative instruction:

Now, there’s one other matter that I wanted to address with you, and it is this:

Just before, just before our lunch break, you heard the current witness, Corey

Sweetenburg, who is sitting there on the stand, refer to the Ralph murder. I

instruct you and I direct you that that testimony was improper, and you are

to completely disregard that statement. Put it out of your mind.

First, I remind you that none of the defendants in this case are charged with

the Ralph murder.

Second, there are no allegations in the charges before this court at all about

any Ralph murder, and anything having to do with any so-called Ralph

murder has absolutely nothing to do with the charges in this case. Therefore,

I am ordering that testimony be stricken, and you are to totally disregard it in

your consideration of the evidence in this case as to all the defendants, and

you are to totally disregard it in your deliberations as to all the defendants.

It shall not be discussed in any way during deliberations and shall not be part

of your individual or collective decision-making process.

Thereafter, the court dissuaded the Government from introducing exhibits that referenced

the Ralph murder, including rap videos and a Facebook post. Throughout the remaining

three weeks of trial, not a single witness made any additional reference to the Ralph murder.

48a

In providing this thorough and careful instruction, the district court did not abuse its

discretion. Quite like the comment at issue in Zelaya, Sweetenburg’s reference to “the

Ralph Murder” was brief, ambiguous, and not repeated.

The prosecution did not

intentionally elicit this comment. Nor did it reference or allude to the Ralph murder at any

point throughout the remainder of the proceedings. And there is no question that the jury,

if it followed the court’s extensive instruction, could make its own determination as to each

defendant’s guilt or innocence of the crimes charged. Accordingly, the court did not abuse

its discretion by declining to order a mistrial — to cast aside an exhaustive, five-week

proceeding — in response to Sweetenburg’s stray remark.

IX.

For the foregoing reasons, the judgment of the district court is in all respects

AFFIRMED

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APPENDIX B

AO 245B (Rev. 12/03)(VAED rev. 2) Sheet 1 - Judgment in a Criminal Case

UNITED STATES DISTRICT COURT

Eastern District of Virginia

Newport News Division

UNITED STATES OF AMERICA

Case Number: 4:17cr52-007

RYAN TAYBRON,

a/k/a "22", "Ryan Savage"

Defendant.

USM Number: 92294-083

Defendant's Attorney: Andrew Protogyrou

JUDGMENT IN A CRIMINAL CASE

The defendant was found guilty by a jury on Counts 1, 21, 22, 25 and 27 after a plea of not guilty of the Second

Superseding Indictment. The defendant was found not guilty on Count 26 of the Second Superseding Indictment, and is

discharged as to such count.

Accordingly, the defendant is adjudged guilty of the following counts involving the indicated offenses.

Title and Section

Nature of Offense

Offense Class

Offense Ended

Count

T. 18, USC Section 1962(d)

Racketeering Conspiracy

Felony

July 4, 2017

T. 18, USC Section 1959(a)(5) and 2

Attempted Murder in Aid of Racketeering Activity

Felony

January 2, 2017

T. 18, USC Section 924(c)(1)(A) and

Possession and Discharge of a

Furtherance of a Crime of Violence

Firearm in

Felony

January 2, 2017

T. 21, USC Section 846, and 841(a)(1)

and (b)(1)(C)

Conspiracy to Distribute and Possess with Intent to

Distribute Marijuana and Cocaine Base

Felony

July 30, 2017

T. 18, USC Section 924(c)(1)(A)

Possession of Firearm in Furtherance of Drug

Trafficking

Felony

May 2017

All prior indictments are dismissed as to defendant RYAN TAYBRON.

As pronounced on July 9, 2021, the defendant is sentenced as provided in pages 2 through 6 of this Judgment. The

sentence is imposed pursuant to the Sentencing Reform Act of 1984.

It is ORDERED that the defendant shall notify the United States Attorney for this district within 30 days of any change

of name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment

are fully paid. If ordered to pay restitution, the defendant must notify the court and United States Attorney of material

changes in economic circumstances.

Signed this _____

12th day of July, 2021.

/s/

Mark S. Davis

Chief Judge

50a

AO 245B (Rev. 12/03)(VAED rev. 2) Judgment in a Criminal Case

Sheet 2 - Imprisonment

Case Number:

Defendant’s Name:

Page 2 of 6

4:17cr52-007

TAYBRON, RYAN

IMPRISONMENT

The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a total

term of THREE HUNDRED-SIXTY (360) MONTHS. This term of imprisonment consists of a term of ONE

HUNDRED-EIGHTY (180) MONTHS on Count 1, ONE HUNDRED-TWENTY (120) MONTHS on Count 21, and

ONE HUNDRED-EIGHTY (180) MONTHS on Count 25, all to be served concurrently. It also consists of a term of

ONE HUNDRED-TWENTY (120) MONTHS on Count 22, and a term of SIXTY (60) MONTHS on Count 27, to be

served consecutively to each other and to all other counts.

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

1) The defendant shall be incarcerated in a facility as close as possible to Hampton Roads, Virginia.

2) The defendant shall participate in vocational evaluation and training.

3) The defendant shall participate in educational courses and training.

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

RETURN

I have executed this judgment as follows:

Defendant delivered on

, with a certified copy of this Judgment.

________________________________________

UNITED STATES MARSHAL

________________________________________

DEPUTY UNITED STATES MARSHAL

51a

AO 245B (Rev. 12/03)(VAED rev. 2) Judgment in a Criminal Case

Sheet 3 – Supervised Release

Case Number:

Defendant’s Name:

Page 3 of 6

4:17cr52-007

TAYBRON, RYAN

SUPERVISED RELEASE

Upon release from imprisonment, the defendant shall be on supervised release for a term of FIVE (5) YEARS. This

term consists of a term of THREE (3) YEARS on Count 1, THREE (3) YEARS on Count 21, FIVE (5) YEARS on Count

22, THREE (3) YEARS on Count 25, and FIVE (5) YEARS on Count 27, all to run concurrently.

The Probation Office shall provide the defendant with a copy of the standard conditions and any special conditions of

supervised release.

The defendant shall report to the probation office in the district to which the defendant is released within 72 hours of

release from the custody of the Bureau of Prisons.

The defendant shall not commit another federal, state or local crime.

The defendant shall not unlawfully possess a controlled substance. The defendant shall refrain from any unlawful use

of a controlled substance and submit to one drug test within 15 days of release on supervised release and at least two

periodic drug tests thereafter, as directed by the probation officer.

The defendant shall not possess a firearm, ammunition, destructive device, or any other dangerous weapon.

If this judgment imposes a fine or restitution obligation, it is a condition of supervised release that the defendant pay

any such fine or restitution in accordance with the Schedule of Payments set forth in the Criminal Monetary Penalties

sheet of this judgment.

STANDARD CONDITIONS OF SUPERVISION

The defendant shall comply with the standard conditions that have been adopted by this court set forth below:

1) the defendant shall not leave the judicial district without the permission of the court or probation officer;

2) the defendant shall report to the probation officer and shall submit a truthful and complete written report within the

first five days of each month;

3) the defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the

probation officer;

4) the defendant shall support his or her dependents and meet other family responsibilities;

5) the defendant shall work regularly at a lawful occupation, unless excused by the probation officer for schooling,

training, or other acceptable reasons;

6) the defendant shall notify the probation officer at least ten days prior to any change in residence or employment;

7) the defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or

administer any narcotic or other controlled substance or any paraphernalia related to such substances, except as

prescribed by a physician;

8) the defendant shall not frequent places where controlled substances are illegally sold, used, distributed, or

administered;

9) the defendant shall not associate with any persons engaged in criminal activity and shall not associate with any

person convicted of a felony, unless granted permission to do so by the probation officer;

10) the defendant shall permit a probation officer to visit him or her at any time at home or elsewhere and shall permit

confiscation of any contraband observed in plain view of the probation officer;

11) the defendant shall notify the probation officer within seventy-two hours of being arrested or questioned by a law

enforcement officer;

12) the defendant shall not enter into any agreement to act as an informer for a special agent of a law enforcement

agency without the permission of the court;

13) as directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the

defendant's criminal record or personal history or characteristics and shall permit the probation officer to make such

notifications and to confirm the defendant's compliance with such notification requirement.

52a

AO 245B (Rev. 12/03)(VAED rev. 2) Judgment in a Criminal Case

Sheet 3A – Supervised Release

Case Number:

Defendant’s Name:

Page 4 of 6

4:17cr52-007

TAYBRON, RYAN

SPECIAL CONDITIONS OF SUPERVISION

While on supervised release pursuant to this Judgment, the defendant shall also comply with the following additional

special conditions:

1) The defendant shall obtain a General Equivalency Diploma (GED) or a vocational skill during his period of

supervision if not employed full-time.

2) The defendant shall pay for the support of his minor child in the amount ordered by any social service agency or

court of competent jurisdiction, and shall register with the Department of Child Support Enforcement in any state

in which he resides.

3) If the defendant tests positive for a controlled substance, he shall participate in a program approved by the United

States Probation Office for substance abuse, which program may include residential treatment and testing to

determine whether the defendant has reverted to the use of drugs or alcohol, with partial costs to be paid by the

defendant, all as directed by the probation officer.

4) The defendant shall participate in a program approved by the United States Probation Office for mental health

treatment to include anger management. The cost of this program is to be paid by the defendant as directed by the

Probation Officer.

5) The defendant shall waive all rights of confidentiality regarding substance abuse/mental health treatment in order

to allow the release of information to the United States Probation Office and authorize communication between

the probation officer and the treatment provider.

6) The defendant shall not have any contact with any known gang members without prior approval of the probation

officer.

53a

AO 245B (Rev. 12/03)(VAED rev. 2) Judgment in a Criminal Case

Sheet 5 – Criminal Monetary Penalties

Case Number:

Defendant’s Name:

Page 5 of 6

4:17cr52-007

TAYBRON, RYAN

CRIMINAL MONETARY PENALTIES

The defendant must pay the total criminal monetary penalties under the Schedule of Payments on Sheet 6.

Count

Assessment

$100.00

Fine

$0.00

Restitution

$100.00

$0.00

$100.00

$0.00

$100.00

$0.00

$100.00

$0.00

$500.00

$0.00

TOTALS:

FINES

No fines have been imposed in this case.

54a

$0.00

AO 245B (Rev. 12/03)(VAED rev. 2) Judgment in a Criminal Case

Sheet 6 – Schedule of Payments

Case Number:

Defendant’s Name:

Page 6 of 6

4:17cr52-007

TAYBRON, RYAN

SCHEDULE OF PAYMENTS

Having assessed the defendant's ability to pay, payment of the total criminal monetary penalties is due as follows:

The special assessment shall be due in full immediately.

Any balance remaining unpaid on the special assessment at the inception of supervision, shall be paid by the defendant in

installments of not less than $50.00 per month, until paid in full. Said payments shall commence 60 days after defendant's

supervision begins.

Any special assessment may be subject to penalties for default and delinquency.

Nothing in the court's order shall prohibit the collection of any judgment, fine, or special assessment by the United States.

Since this judgment imposes a period of imprisonment, payment of criminal monetary penalties, including the special

assessment, shall be due during the period of imprisonment. All criminal monetary penalty payments, including the

special assessment, are to be made to the Clerk, United States District Court, except those payments made through the

Bureau of Prisons’ Inmate Financial Responsibility Program.

The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.

Payments shall be applied in the following order: (1) assessment (2) restitution principal (3) restitution interest (4) fine

principal (5) fine interest (6) community restitution (7) penalties and (8) costs, including cost of prosecution and court

costs.

55a

AO 245B (Rev. 12/03)(VAED rev. 2) Sheet 1 - Judgment in a Criminal Case

UNITED STATES DISTRICT COURT

Eastern District of Virginia

Newport News Division

UNITED STATES OF AMERICA

Case Number: 4:17cr52-008

ERIC NIXON,

a/k/a "Young Nix" and "Lil Nix"

Defendant.

USM Number: 92262-083

Defendant's Attorney: Nicholas Hobbs

JUDGMENT IN A CRIMINAL CASE

The defendant was found guilty by a jury on Counts 1, 21, 22, 23, 24 and 29 after a plea of not guilty to the Second

Superseding Indictment.

Accordingly, the defendant is adjudged guilty of the following counts involving the indicated offenses.

Title and Section

Nature of Offense

Offense Class

Offense Ended

Count

T. 18, USC Section 1962(d)

Racketeering Conspiracy

Felony

July 4, 2017

T. 18, USC Section 1959(a)(5) and 2

Attempted Murder in Aid of Racketeering Activity

Felony

February 26, 2017

21, 23

T. 18, USC Section 924(c)(1)(A)

Possession and Discharge of a Firearm in Furtherance

of a Crime of Violence

Felony

February 26, 2017

22, 24

T. 18, USC Sections 922(a)(6) and

924(a)(2)

False Statement During Firearm Purchase

Felony

February 5, 2017

The Court has dismissed the Superseding Indictment as to defendant ERIC NIXON.

As pronounced on June 28, 2021, the defendant is sentenced as provided in pages 2 through 6 of this Judgment. The

sentence is imposed pursuant to the Sentencing Reform Act of 1984.

It is ORDERED that the defendant shall notify the United States Attorney for this district within 30 days of any change

of name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment

are fully paid. If ordered to pay restitution, the defendant must notify the court and United States Attorney of material

changes in economic circumstances.

Signed this _____

29th day of June, 2021.

/s/

Mark S. Davis

Chief Judge

56a

AO 245B (Rev. 12/03)(VAED rev. 2) Judgment in a Criminal Case

Sheet 2 - Imprisonment

Case Number:

Defendant’s Name:

Page 2 of 6

4:17cr52-008

NIXON, ERIC

IMPRISONMENT

The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a total

term of THREE HUNDRED-SIXTY (360) MONTHS. This term of imprisonment consists of a term of ONE

HUNDRED TWENTY (120) MONTHS on each of Counts 1, 21, 23 and 29, all to run concurrently, and a term of ONE

HUNDRED TWENTY (120) MONTHS on each of Counts 22 and 24, to be served consecutively to each other and to all

other counts.

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

1) The defendant shall be incarcerated in a facility as close as possible to Hampton Roads, Virginia.

Alternatively, and in order of preference, the defendant shall be incarcerated as close as possible to West

Virginia or Georgia.

2) The defendant shall receive a mental health evaluation and any recommended treatment.

3) The defendant shall participate in substance abuse treatment.

4) The defendant shall participate in educational programs towards obtaining a college degree or a vocational

skill.

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

RETURN

I have executed this judgment as follows:

Defendant delivered on

, with a certified copy of this Judgment.

________________________________________

UNITED STATES MARSHAL

________________________________________

DEPUTY UNITED STATES MARSHAL

57a

AO 245B (Rev. 12/03)(VAED rev. 2) Judgment in a Criminal Case

Sheet 3 – Supervised Release

Case Number:

Defendant’s Name:

Page 3 of 6

4:17cr52-008

NIXON, ERIC

SUPERVISED RELEASE

Upon release from imprisonment, the defendant shall be on supervised release for a total term of FIVE (5) YEARS.

This term consists of a term of FIVE (5) YEARS on each of Counts 22 and 24, and a term of THREE (3) YEARS on each

of Counts 1, 21, 23 and 29, all to run concurrently.

The Probation Office shall provide the defendant with a copy of the standard conditions and any special conditions of

supervised release.

The defendant shall report to the probation office in the district to which the defendant is released within 72 hours of

release from the custody of the Bureau of Prisons.

The defendant shall not commit another federal, state or local crime.

The defendant shall not unlawfully possess a controlled substance. The defendant shall refrain from any unlawful use

of a controlled substance and submit to one drug test within 15 days of release on supervised release and at least two

periodic drug tests thereafter, as directed by the probation officer.

The defendant shall not possess a firearm, ammunition, destructive device, or any other dangerous weapon.

If this judgment imposes a fine or restitution obligation, it is a condition of supervised release that the defendant pay

any such fine or restitution in accordance with the Schedule of Payments set forth in the Criminal Monetary Penalties

sheet of this judgment.

STANDARD CONDITIONS OF SUPERVISION

The defendant shall comply with the standard conditions that have been adopted by this court set forth below:

1) the defendant shall not leave the judicial district without the permission of the court or probation officer;

2) the defendant shall report to the probation officer and shall submit a truthful and complete written report within the

first five days of each month;

3) the defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the

probation officer;

4) the defendant shall support his or her dependents and meet other family responsibilities;

5) the defendant shall work regularly at a lawful occupation, unless excused by the probation officer for schooling,

training, or other acceptable reasons;

6) the defendant shall notify the probation officer at least ten days prior to any change in residence or employment;

7) the defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or

administer any narcotic or other controlled substance or any paraphernalia related to such substances, except as

prescribed by a physician;

8) the defendant shall not frequent places where controlled substances are illegally sold, used, distributed, or

administered;

9) the defendant shall not associate with any persons engaged in criminal activity and shall not associate with any

person convicted of a felony, unless granted permission to do so by the probation officer;

10) the defendant shall permit a probation officer to visit him or her at any time at home or elsewhere and shall permit

confiscation of any contraband observed in plain view of the probation officer;

11) the defendant shall notify the probation officer within seventy-two hours of being arrested or questioned by a law

enforcement officer;

12) the defendant shall not enter into any agreement to act as an informer for a special agent of a law enforcement

agency without the permission of the court;

13) as directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the

defendant's criminal record or personal history or characteristics and shall permit the probation officer to make such

notifications and to confirm the defendant's compliance with such notification requirement.

58a

AO 245B (Rev. 12/03)(VAED rev. 2) Judgment in a Criminal Case

Sheet 3A – Supervised Release

Case Number:

Defendant’s Name:

Page 4 of 6

4:17cr52-008

NIXON, ERIC

SPECIAL CONDITIONS OF SUPERVISION

While on supervised release pursuant to this Judgment, the defendant shall also comply with the following additional

special conditions:

1) The defendant shall obtain a college degree or a vocational skill during his period of supervision if not employed

full-time.

2) The defendant shall pay for the support of his minor child in the amount ordered by any social service agency or

court of competent jurisdiction, and shall register with the Department of Child Support Enforcement in any state

in which he resides.

3) If the defendant tests positive for illicit substances, he shall participate in a program approved by the United States

Probation Office for substance abuse, which program may include residential treatment and testing to determine

whether the defendant has reverted to the use of drugs or alcohol, with partial costs to be paid by the defendant,

all as directed by the probation officer.

4) The defendant shall participate in a program approved by the United States Probation Office for mental health

treatment. The cost of this program is to be paid by the defendant as directed by the Probation Officer.

5) The defendant shall waive all rights of confidentiality regarding substance abuse/mental health treatment in order

to allow the release of information to the United States Probation Office and authorize communication between

the probation officer and the treatment provider.

6) The defendant shall have no contact with any known gang members, without first obtaining the permission of the

probation officer.

59a

AO 245B (Rev. 12/03)(VAED rev. 2) Judgment in a Criminal Case

Page 5 of 6

Sheet 5 – Criminal Monetary Penalties

Case Number:

Defendant’s Name:

4:17cr52-008

NIXON, ERIC

CRIMINAL MONETARY PENALTIES

The defendant must pay the total criminal monetary penalties under the Schedule of Payments on Sheet 6.

Count

Assessment

$100.00

$0.00

Fine

Restitution

$100.00

$0.00

$100.00

$0.00

$100.00

$0.00

$100.00

$0.00

$100.00

$0.00

$600.00

$0.00

TOTALS:

FINES

No fines have been imposed in this case.

60a

$0.00

AO 245B (Rev. 12/03)(VAED rev. 2) Judgment in a Criminal Case

Sheet 6 – Schedule of Payments

Case Number:

Defendant’s Name:

Page 6 of 6

4:17cr52-008

NIXON, ERIC

SCHEDULE OF PAYMENTS

Having assessed the defendant's ability to pay, payment of the total criminal monetary penalties is due as follows:

The special assessment shall be due in full immediately.

Any balance remaining unpaid on the special assessment at the inception of supervision, shall be paid by the defendant in

installments of not less than $50.00 per month, until paid in full. Said payments shall commence 60 days after defendant's

supervision begins.

Any special assessment may be subject to penalties for default and delinquency.

Nothing in the court's order shall prohibit the collection of any judgment, fine, or special assessment by the United States.

Since this judgment imposes a period of imprisonment, payment of criminal monetary penalties, including the special

assessment, shall be due during the period of imprisonment. All criminal monetary penalty payments, including the

special assessment, are to be made to the Clerk, United States District Court, except those payments made through the

Bureau of Prisons’ Inmate Financial Responsibility Program.

The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.

Payments shall be applied in the following order: (1) assessment (2) restitution principal (3) restitution interest (4) fine

principal (5) fine interest (6) community restitution (7) penalties and (8) costs, including cost of prosecution and court

costs.

61a

AO 245B (Rev. 12/03)(VAED rev. 2) Sheet 1 - Judgment in a Criminal Case

UNITED STATES DISTRICT COURT

Eastern District of Virginia

Newport News Division

UNITED STATES OF AMERICA

Case Number: 4:17cr52-009

GEOVANNI DOUGLAS,

a/k/a "Geo" and "Twin"

Defendant.

USM Number: 89902-083

Defendant's Attorney: Daymen Robinson

JUDGMENT IN A CRIMINAL CASE

The defendant was found guilty by a jury on Counts 1, 14, and 15 of the Second Superseding Indictment after a plea of

not guilty. Additionally, the defendant was found not guilty on Counts 34 and 35 of the Second Superseding Indictment,

and is discharged as to such counts.

Accordingly, the defendant is adjudged guilty of the following counts involving the indicated offenses.

Title and Section

Nature of Offense

Offense Class

Offense Ended

T. 18, USC Section 1962(d)

Racketeering Conspiracy

Felony

July 4, 2017

T. 18, USC Section 1959(a)(5) and 2

Attempted Murder in Aid of Racketeering Activity

Felony

August 1, 2015

T. 18, USC Section 924(c)(1)(A) and

Possession and Discharge of a

Furtherance of a Crime of Violence

Felony

August 1, 2015

Firearm in

Count

On motion of the United States, the Court has dismissed all prior indictments as to defendant GEOVANNI

DOUGLAS.

As pronounced on September 10, 2021, the defendant is sentenced as provided in pages 2 through 6 of this Judgment.

The sentence is imposed pursuant to the Sentencing Reform Act of 1984.

It is ORDERED that the defendant shall notify the United States Attorney for this district within 30 days of any change

of name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment

are fully paid. If ordered to pay restitution, the defendant must notify the court and United States Attorney of material

changes in economic circumstances.

Signed this ______

13th day of September, 2021.

/s/

Mark S. Davis

Chief Judge

62a

AO 245B (Rev. 12/03)(VAED rev. 2) Judgment in a Criminal Case

Sheet 2 - Imprisonment

Case Number:

Defendant’s Name:

Page 2 of 6

4:17cr52-009

DOUGLAS, GEOVANNI

IMPRISONMENT

The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a

term of TWO HUNDRED TWENTY-EIGHT (228) MONTHS. This term of imprisonment consists of a term of ONE

HUNDRED-EIGHT (108) MONTHS on Count 1, ONE HUNDRED-EIGHT (108) MONTHS on Count 14, to be served

concurrently to Count 1, and a term of ONE HUNDRED-TWENTY (120) MONTHS on Count 15, to be served

consecutively to Counts 1 and 14.

It is the Court’s understanding that the Bureau of Prisons will give Mr. Douglas credit for the time he has already

served in federal custody, to include the time he spent serving the discharged sentence in Case No. 4:16cr5.

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

1) The defendant shall be incarcerated in a facility as close as possible to Hampton Roads, Virginia.

2) The defendant shall be screened for mental health/substance abuse treatment.

3) The defendant shall receive additional vocational and educational training.

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

RETURN

I have executed this judgment as follows:

Defendant delivered on

, with a certified copy of this Judgment.

________________________________________

UNITED STATES MARSHAL

________________________________________

DEPUTY UNITED STATES MARSHAL

63a

AO 245B (Rev. 12/03)(VAED rev. 2) Judgment in a Criminal Case

Sheet 3 – Supervised Release

Case Number:

Defendant’s Name:

Page 3 of 6

4:17cr52-009

DOUGLAS, GEOVANNI

SUPERVISED RELEASE

Upon release from imprisonment, the defendant shall be on supervised release for a term of FIVE (5) YEARS. This

term consists of a term of THREE (3) YEARS on Count 1, a term of THREE (3) YEARS on Count 14 and a term of FIVE

(5) YEARS on Count 15, all to run concurrently.

The Probation Office shall provide the defendant with a copy of the standard conditions and any special conditions of

supervised release.

The defendant shall report to the probation office in the district to which the defendant is released within 72 hours of

release from the custody of the Bureau of Prisons.

The defendant shall not commit another federal, state or local crime.

The defendant shall not unlawfully possess a controlled substance. The defendant shall refrain from any unlawful use

of a controlled substance and submit to one drug test within 15 days of release on supervised release and at least two

periodic drug tests thereafter, as directed by the probation officer.

The defendant shall not possess a firearm, ammunition, destructive device, or any other dangerous weapon.

If this judgment imposes a fine or restitution obligation, it is a condition of supervised release that the defendant pay

any such fine or restitution in accordance with the Schedule of Payments set forth in the Criminal Monetary Penalties

sheet of this judgment.

STANDARD CONDITIONS OF SUPERVISION

The defendant shall comply with the standard conditions that have been adopted by this court set forth below:

1) the defendant shall not leave the judicial district without the permission of the court or probation officer;

2) the defendant shall report to the probation officer and shall submit a truthful and complete written report within the

first five days of each month;

3) the defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the

probation officer;

4) the defendant shall support his or her dependents and meet other family responsibilities;

5) the defendant shall work regularly at a lawful occupation, unless excused by the probation officer for schooling,

training, or other acceptable reasons;

6) the defendant shall notify the probation officer at least ten days prior to any change in residence or employment;

7) the defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or

administer any narcotic or other controlled substance or any paraphernalia related to such substances, except as

prescribed by a physician;

8) the defendant shall not frequent places where controlled substances are illegally sold, used, distributed, or

administered;

9) the defendant shall not associate with any persons engaged in criminal activity and shall not associate with any

person convicted of a felony, unless granted permission to do so by the probation officer;

10) the defendant shall permit a probation officer to visit him or her at any time at home or elsewhere and shall permit

confiscation of any contraband observed in plain view of the probation officer;

11) the defendant shall notify the probation officer within seventy-two hours of being arrested or questioned by a law

enforcement officer;

12) the defendant shall not enter into any agreement to act as an informer for a special agent of a law enforcement

agency without the permission of the court;

13) as directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the

defendant's criminal record or personal history or characteristics and shall permit the probation officer to make such

notifications and to confirm the defendant's compliance with such notification requirement.

64a

AO 245B (Rev. 12/03)(VAED rev. 2) Judgment in a Criminal Case

Sheet 3A – Supervised Release

Case Number:

Defendant’s Name:

Page 4 of 6

4:17cr52-009

DOUGLAS, GEOVANNI

SPECIAL CONDITIONS OF SUPERVISION

While on supervised release pursuant to this Judgment, the defendant shall also comply with the following additional

special conditions:

1) The defendant shall pay for the support of his minor child in the amount ordered by any social service agency or

court of competent jurisdiction, and shall register with the Department of Child Support Enforcement in any state

in which he resides.

2) The defendant shall obtain a vocational skill during his period of supervision if not employed full-time.

3) The defendant shall participate in a program approved by the United States Probation Office for substance abuse,

which program may include residential treatment and testing to determine whether the defendant has reverted to

the use of drugs or alcohol, with partial costs to be paid by the defendant, all as directed by the probation officer.

4) The defendant shall waive all rights of confidentiality regarding substance abuse treatment in order to allow the

release of information to the United States Probation Office and authorize communication between the probation

officer and the treatment provider.

5) The defendant shall not have any contact with any known gang members without prior approval of the probation

officer.

65a

AO 245B (Rev. 12/03)(VAED rev. 2) Judgment in a Criminal Case

Sheet 5 – Criminal Monetary Penalties

Case Number:

Defendant’s Name:

Page 5 of 6

4:17cr52-009

DOUGLAS, GEOVANNI

CRIMINAL MONETARY PENALTIES

The defendant must pay the total criminal monetary penalties under the Schedule of Payments on Sheet 6.

Count

Assessment

$100.00

Fine

$0.00

Restitution

$100.00

$0.00

$100.00

$0.00

$300.00

$0.00

TOTALS:

FINES

No fines have been imposed in this case.

66a

$0.00

AO 245B (Rev. 12/03)(VAED rev. 2) Judgment in a Criminal Case

Sheet 6 – Schedule of Payments

Case Number:

Defendant’s Name:

Page 6 of 6

4:17cr52-009

DOUGLAS, GEOVANNI

SCHEDULE OF PAYMENTS

Having assessed the defendant's ability to pay, payment of the total criminal monetary penalties is due as follows:

The special assessment shall be due in full immediately.

Any balance remaining unpaid on the special assessment at the inception of supervision, shall be paid by the defendant in

installments of not less than $50.00 per month, until paid in full. Said payments shall commence 60 days after defendant's

supervision begins.

Any special assessment may be subject to penalties for default and delinquency.

Nothing in the court's order shall prohibit the collection of any judgment, fine, or special assessment by the United States.

Since this judgment imposes a period of imprisonment, payment of criminal monetary penalties, including the special

assessment, shall be due during the period of imprisonment. All criminal monetary penalty payments, including the

special assessment, are to be made to the Clerk, United States District Court, except those payments made through the

Bureau of Prisons’ Inmate Financial Responsibility Program.

The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.

Payments shall be applied in the following order: (1) assessment (2) restitution principal (3) restitution interest (4) fine

principal (5) fine interest (6) community restitution (7) penalties and (8) costs, including cost of prosecution and court

costs.

67a

APPENDIX C

UNJ:TED STATES DiSTRiCT COURT

EASTERN DiSTRiCT OF ViRGiNJ:A

.,..._.....

F.....

1 Liiiiiii,

E....

D ----.· '�t

AUG - 8 2Dl9

Newport News Division

CLERK, U.S. DISTRICT COURT

NORFOLK VA

trm:TED STATES OF AMERICA

Criminal No. 4:17cr52

MARTiN L. RON'I', et al.,

Defendants.

MEMORANDUM ORDER

This matter is before the Court on various pre-trial motions

filed

Defendants

Martin

Hunt,

Xavier

Greene,

Deshaun

Richardson, Eric Nixon, Geovanni Douglas, Raymond Palmer, and Sade

Taybron.

Much of the relief requested in the pending motions was

originally sought by a single Defendant, but subsequent to the

filing of such motion, one or more of the remaining Defendants

filed a "motion to adopt."

The numerous requests to "adopt"

motions filed by other Defendants named in the case are all GRANTED

as to adoption.

The relief requested in each motion filed by a

single Defendant, as well as the relief requested by Defendants

subsequently deemed to have adopted/joined in a previously filed

motion, are addressed below. 1

The instant Order addresses the motions that the Government responded to

in its consolidated brief in opposition, ECF No. 295, which is nearly one

hundred pages long. There are multiple additional motions pending in this

case that will be addressed by separate order.

68a

A. Motions to Dismiss§ 924(c) Counts

Multiple Defendants have moved to dismiss criminal counts

charging firearm crimes in violation of 18

U.S.C.

§ 924(c).

Defendants correctly argue that: (1) the residual clause contained

in 18

U.S.C.

§ 924(c)(3)(B) is unconstitutionally vague;

and

(2) this Court must apply a "categorical approach" to determine

whether the "crime of violence" referenced in the disputed § 924(c)

counts satisfies

§ 924(c)(3)(A).

the

"force clause"

set forth in

U.S.C.

United States v. Davis, 139 S. Ct. 2319 (2019).

Although Defendants propose the correct legal framework, for

the reasons stated in the Government's consolidated brief in

opposition, Defendants' arguments, seeking dismissal of several

§ 924(c) counts for failure to charge a "crime of violence" that

satisfies the force clause, all lack merit.

ECF No. 295, at 10-

30. In short, Defendants' primary attack fails because both VICAR

murder and VICAR attempted murder are "force clause" crimes of

violence covered by

Court:

(1) applies the

924(c)(3)(A) regardless of

whether the

"generic, federal definition"

approach

espoused by the Government; or (2) considers the elements of "VICAR

murder, as cross-referenced to Virginia law," consistent with the

approach recently followed both by the Fourth Circuit and the

undersigned judge in a recent RICO/VICAR case.

v. Mathis, -- F.3d

See United States

No. 16-4633, 2019 WL 3437626, at *15 (4th

Cir. July 31, 2019) (applying a state-specific approach for a VICAR

69a

murder count and concluding that "the crime of first-degree murder

under Virginia law qualifies categorically as a crime of violence

under the force clause"); United States v. Simmons, No. 2:16cr130,

2018 WL 6012368, at *2-3 (E.D. Va. Nov. 16, 2018)

("[An]

analysis

of Virginia law leads to the conclusion that VICAR murder, as

cross-referenced to Virginia law, is itself a 'crime of violence'

under§ 924(c)(3) (A)," as is "VICAR attempted murder.").

As to Defendants' argument challenging whether VICAR assault

with a dangerous weapon satisfies the force clause, the Government

correctly argues that: (1) such issue is only relevant to Defendant

Palmer as he is the only Defendant charged in Counts Ten (the

assault count) and Eleven (the use of a firearm in furtherance of

assault count); and (2) none of the Defendants' filings address

the elements of the Virginia statute cross-referenced in Count Ten

(Va. Code§ 18.2-51), and a review of such statute reveals that it

satisfies the § 924(c)(3)(A) force cause because it includes a

"mens rea element, requiring the specific intent to kill or

seriously injure the victim." United States v. James, 718 F. App'x

201, 204 (4th Cir. 2018); see United States v. Battle, 927 F.3d

160, 166 (4th Cir. 2019) (explaining that "the requisite mens rea

is crucial in the force analysis," and that "a crime requiring the

'intentional causation' of injury requires the use of physical

force") (citing united States v. Castleman, 572 U.S. 157, 170

(2014)).

70a

the

Defendants'

final

argument

challenging

the

propriety of the RICO conspiracy count serving as the predicate

crime of violence, Defendants appear correct that a RICO conspiracy

is not a

"force

clause" crime

violence,

and

the Court

anticipates that its jury instructions will reflect Defendants'

position on this issue.

United States v.

See Simmons, 2018 WL 6012368, at *4;

Simms, 914 F. 3d 229, 233-34 (4th Cir. 2019)

(finding that "conspiracy to commit Hobbs Act robbery does not

categorically

qualify

crime

violence"

under

the

924(c) (3)(A) force clause because "the Government must prove

only that the defendant agreed with another to commit actions that,

if realized, would violate the Hobbs Act," and such agreement "does

not invariably require the actual, attempted, or threatened use of

physical force") (emphasis added).

However, because none of the

§ 924(c) counts charged in this case rely exclusively on such

predicate conspiracy crime, there is no basis for dismissal of any

pending§ 924(c) count.

For these reasons, the following motions

are DENIED: ECF Nos. 248, 252, 262, 264, 274, 275.

B. Motions to Exclude Toolmark Evidence

Multiple Defendants have moved to exclude evidence regarding

the forensic examination and findings of bullets and cartridge

casings that were recovered from alleged crime scenes.

This Court

recently addressed this same issue, in detail, in United States v.

Simmons, following a Daubert hearing that was conducted by the

71a

After the hearing, the Magistrate

Magistrate Judge in that case.

Judge issued a report recommending that this Court "decline[]

Defendants'

tradition

invitation

favoring

depart

admissibility"

examination testimony.

from

th[e]

firearms

long-standing

and

toolmark

United States v. Simmons, No. 2:16cr130,

2018 WL 1882827, at *9 (E.D. Va. Jan. 12, 2018).

After objections

to such ruling were filed, this Court made the de novo finding

that the challenged evidence was admissible, with limitations to

be imposed at trial to ensure that the testifying expert did not

overstate the degree of certainty appropriate in this field of

forensic science.

United States v. Simmons, No. 2:16cr130, 2018

WL 658693, at *2 (E.D. Va. Feb. 1, 2018).

Here,

the Court has fully considered the same arguments

advanced by Defendants, as well as the detailed opposition by the

Government, the latter of which includes: (1) representations that

Defendants

have

already

analysis,

background

been

notes,

provided

and

other

with

certificates

ballistics

discovery

materials; (2) an analysis of the five Daubert factors, including

information on prior testing of the field/science, error rates,

peer review/publications of the science, standards in the field

that were adhered to in this case, etc.; and (3) citations to case

law universally concluding that expert testimony in this field is

admissible.

For the reasons stated in detail in the Government's

brief, ECF No. 295, at 31-58, and for those recently explained by

72a

this Court, Simmons, 2018 WL 658693, at *1-3; Simmons, 2018 WL

1882827, at *l-9, the Court finds that Defendants fail at this

time to establish that the firearm and toolmark evidence should be

excluded, or that a pre-trial Daubert hearing is warranted, 2

their attack on this entire field of forensics at best illustrates:

(1) a viable avenue to challenge the weight such evidence should

be given by the factfinder; and (2)

Government's

representations

and

that consistent with the

DOJ

Guidance

federal

prosecutors, care should be taken at trial to ensure that the

Government's expert witnesses do not overstate their degree of

certainty

regarding

source

identification

(i.e./

purported

"matches" )

Counsel for the Defendants that filed a motion attacking this

type of forensic evidence are encouraged to confer with counsel

for the Government in an attempt to reach a stipulation in advance

of trial as to the acceptable phrasing of the Government's expert's

findings.

If such stipulation cannot be reached, such issue can

A Daubert hearing is unnecessary in this case because the thrust of

Defendants' attack challenges the entire forensic discipline, as contrasted

with a case-specific challenge asserting that the testimony/evidence to be

offered in this case is somehow less scientifically reliable than the

testimony offered in similar cases. The only substantive brief in support

of exclusion submitted in this case was filed by the same counsel that

participated in Simmons, and the arguments advanced in this case precisely

track the arguments previously litigated in Simmons. If Defendants identify

a viable case-specific challenge to the admissibility of the Government's

evidence that could not have been identified at the time the instant motions

were filed because Defendants lacked discovery materials that were

subsequently provided, the Court will consider a request during trial for

an expeditious and targeted inquiry into such matter outside the presence

of the jury.

73a

be resolved through a targeted supplemental motion in limine that

presents each parties' proposal, as well as citations in support.

For the reasons set forth above, the following motions are DENXED:

ECF Nos. 250, 253, 263, 268, 271, 276.

c. Motions for Additional Peremptory Strikes

Three Defendants have moved the Court for additional pre

emptory

challenges

exercise

during

jury

selection.

The

Government asserts that the awarding of additional strikes is both

premature and unwarranted.

Based on the discretion provided to

the Court by Federal Rule of Criminal Procedure 24(b), the Court

anticipates granting such motion at a later date based on the

nature of the charges, the anticipated evidence, and the number of

Defendants that appear likely to proceed to

joint trial.

However, the Court takes such matter under advisement at this time

as it is premature to determine how many strikes to afford each

Defendant, and/or the Government, until it is known with certainty

how many Defendants will proceed to a joint trial.

The following

motions are therefore TAKEN UNDER ADVISEMENT: ECF Nos. 256, 272,

280. 3

D. Motion for Use of Jury Questionnaire

Defendant Richardson has moved the Court to use a jury

questionnaire to aid in selecting a trial jury.

The Government

The Court notes that all Defendants that proceed to trial will be given

the same consideration on this issue, and no additional motions are necessary

by the Defendants that have not raised such issue.

74a

acknowledges the Court's broad discretion on this issue, Kasi v.

Angelone, 300 F.3d 487, 509 (4th Cir. 2002), but opposes the use

of a questionnaire,

questionnaire.

arguing

that there is

"no need"

for a

Having considered the arguments advanced by the

parties, as well as the nature of the charges, the expected length

of the trial, the fact that the death penalty is not being pursued,

as well as other relevant factors, the Court, in its discretion,

denies the motion requesting a written jury questionnaire, finding

that the questioning performed by the Court through its live voir

dire process will effectively ensure that an impartial jury is

empaneled.

See Robert E. Larsen, Navigating the Federal Trial

§ 5:40 (2019 ed.) (providing citations to case law from within,

and outside,

this Circuit,

and noting:

"The decision to use a

written jury questionnaire rests in the sound discretion of the

trial judge. 11) • 4

Accordingly, Richardson's motion is DENJ:ED.

ECF

No. 258.

E. Motions to Bar Symbols

Defendants Richardson and Douglas have moved the Court to

issue a pre-trial Order banning victims' family members and friends

from wearing in the Courtroom any symbols/tokens to either express

support for a victim or to

"denigrate the defendants.

Counsel for all parties will have the opportunity to propose questions to

be asked by the Court to the panel of prospective jurors, and will also be

permitted to ask follow-up questions to prospective jurors that are

subjected to individual voir dire by the Court. Fed R. Crim. P. 24{a} (2).

75a

response, the Government agrees that "no state action" should

jeopardize the Defendants' right to a fair trial, and that the

Government states that it will ensure that its trial witnesses do

not wear "memorial clothing or buttons" while testifying.

The

Government, however, argues that the Court should not issue a

premature blanket order restricting the conduct of members of the

public.

Having considered the case law cited in the parties' briefs,

the

Court

agrees

with

the

Government

that,

based

the

Government's representations regarding its planned efforts to

avoid participating in any questionable behavior, and the absence

of any evidence of the public's intent to engage in inappropriate

conduct, there is no valid justification to issue a prospective

"bright line prohibition" restricting the conduct of the public.

In the Court's view, it should be an unremarkable fact that an

immediate family member of a deceased victim is experiencing grief,

and a minimalist display of grief not intended to draw attention

to a trial spectator is unlikely to pose any threat to the fairness

of judicial proceedings.

Such conclusion assumes, of course, that

there is not a coordinated effort to use the courtroom as a forum

to visually promote a case-related viewpoint, and further assumes

that no member of the public utilizes "memorial clothing" or a

large button in a manner that is the equivalent of carrying a sign

into the courtroom in an effort to convey a message to the jury or

76a

any of the trial participants.

Furthermore, it should go without

saying that conduct that "denigrates the defendants," or seeks to

suggest their guilt, is far more troubling then the expression of

grief, and it will not be permitted in the courtroom.

Consistent with the Government's arguments, the Court denies

the pending motions as grounded in conjecture, although Defendants

retain the right to raise this issue at trial based on the actual

behavior of members of the public, who will be ordered to modify

their conduct should they behave inappropriately, to include any

behavior that creates a substantial risk of interference with the

Defendants' rights to a fair jury trial.

While the motions are

denied at this time, to the extent that the Government has advance

notice that victims' family members, or any other persons, intend

to use the courtroom as a forum to draw attention to a visual

"message" related to the trial, particularly one that denigrates

or suggests the guilt of any Defendant, it would be prudent for

the Government to share the Court's written comments on this issue

with such individuals prior to trial and to explain to them why

all interested persons, including those who might subjectively

believe that one or more of the Defendants standing trial are

guilty, should be motivated to avoid any conduct that could

undermine the integrity of the trial.

While the undersigned judge

could not have greater respect for the public's right to attend

the trial and the protections afforded by the First Amendment, the

77a

courtroom gallery is not the appropriate forum to express a

viewpoint regarding the guilt of the Defendants standing trial,

and the Court will take swift and appropriate action at trial

should the need arise.

The following motions are therefore DENIED

without prejudice: ECF Nos. 260, 278.

F. Motion to Preclude Evidence of Incarceration

Defendant

Richardson

has

moved

the

Court

preclude

testimony or other evidence revealing that he was incarcerated

from June 2015 until February of 2016 serving a sentence for

The Government

assault and battery on a law enforcement officer.

indicates in its response that it does not intend to introduce

such evidence at trial, but may ultimately introduce evidence that,

while

Defendant

Richardson

was

incarcerated

the

charges, he made relevant statements to other inmates.

instant

Defendant

Richardson asserts in his reply brief that he is unaware of the

nature of these alleged statements or their relevance as the

Government has not yet produced the contents of the purported

jailhouse

statements.

He nevertheless expresses

his

likely

objection to the admission of evidence revealing his more recent

incarceration.

Based on the Government's representations, the pending motion

is moot as the Government does not intend to introduce the disputed

evidence.

Should the Government seek to change its position based

78a

on trial developments, the onus will be on the Government to take

the matter up with the Court outside the presence of the jury.

To the extent that the Government has outlined its intent to

introduce

testimony

that

will

reveal

that

Richardson

was

incarcerated on the current charges, at least for a time, counsel

for Mr. Richardson and the Government are instructed to confer

after the statements at issue have been produced by the Government,

because only then can the relevance, probative value, and potential

for unfair prejudice be properly evaluated.

Should Richardson's

counsel

inadmissible

believe

that

such

evidence

after

conferring with counsel for the Government, they should file a

supplemental motion in limine outlining why such evidence should

be excluded.

Richardson's motion is therefore DENIED as moot, ECF No. 265,

although such denial is without prejudice to the parties' right to

re-raise this issue at a later date.

G. Motions to Sever

Multiple Defendants have moved the Court to sever their cases

for trial.

For the reasons stated in the Government's consolidated

brief in opposition, ECF No. 295, at 72-80, and for those set forth

in this Court's recent analysis of this issue in United States v.

Simmons, No. 2:16cr130, 2017 WL 6388956, at *3-8 {E.D. Va. Dec.

14, 2017), the Court finds that the severance motions filed by

Defendant

Richardson,

Douglas,

and

79a

Greene

lack

merit.

The

remaining three motions to sever (ECF Nos. 290, 293, 320), two of

which are not addressed in the Government's consolidated response,

will be addressed at a later date by separate order.

In summary, these three Defendants are all properly joined

under Rule 8 based on their alleged participation in the same RICO

conspiracy,

rendering a joint trial

"highly favored"

for the

obvious reasons of efficiency and judicial economy. United States

v. Dinkins,

691 F.3d 358,

quotation marks omitted).

368

(4th Cir. 2012)

(citation and

Defendants fail to demonstrate that

discretionary severance under Rule 14 (a) is needed to avoid a

"serious risk" that specific trial rights will be compromised

and/or that the jury will be unable to make a reliable judgment of

guilt or innocence.

Id. (citation and quotation marks omitted).

All three Defendants are charged with at least two counts of

VICAR murder or VICAR attempted murder involving gang-related

shootings, and none of the Defendants have made a "strong showing

of prejudice" grounded in their contention that they will be denied

a fair trial based on the evidence to be presented against a co

defendant. United States v. Mir, 525 F.3d 351, 357 (4th Cir. 2008)

(citation omitted).

Notably, none of the three Defendants can be

said to have "markedly different degrees of culpability."

United

States v. Dinkins, 691 F. 3d 358, 368 (4th Cir. 2012) (citation

omitted).

To the contrary, even Defendant Douglas, who is not

charged with murder, is not a minor participant charged only with

80a

a non-violent offense tangentially related to the RICO enterprise,

but rather, is charged with personally shooting at, and attempting

to kill, rival gang members on two discrete occasions, with the

absence of a murder charge the result of the fact that no victim

was killed during the shootings allegedly committed by Douglas.

In addition to the above, because each discrete crime scene

will involve event-specific trial testimony and event-specific

forensic

evidence,

the

jury

appears

than

capable

compartmentalizing the evidence, not only with respect to each

event, but with respect to each defendant.

Cf. United States v.

Fuller, 498 F. App'x 330, 332 (4th Cir. 2012) (explaining that the

defendant's "concerns about the relative culpability of himself

and about the nature and quantity of the evidence against each

respective defendant simply does not rise to the level of a

miscarriage of justice").

Any risk of prejudice will not only be

countered by limiting instructions at trial, but is also reduced

in light of the fact that the majority of the RICO and VICAR

evidence that will be admitted at the joint trial would likely be

admissible if Richardson, Douglas, or Greene proceeded to a severed

trial.

Accordingly, the following motions are DENZED: ECF Nos.

267, 277, 282.

H. Motions for Early Discovery

Defendants Greene and Douglas have moved the Court to enter

an order requiring the Government to provide early disclosure of

81a

Jencks Act material and Brady/Giglio material,

Greene

requesting

"immediate

production."

with Defendant

Defendant

Douglas

separately argues that the Court should order the Government to

retain (but not disclose at this time) interview-related written

materials (including "rough notes") that may not qualify as Jencks

material but could later prove to be material that must be produced

under Brady/Giglio.

As to the request for early production of Jencks material,

the Government correctly highlights that the controlling statute

only requires the disclosure of witness statements after the

witness testifies at trial, although if such course is followed,

complex

unworkable

criminal

delays

trial

such

light

the

this

one

would

Defendants'

encounter

right

"reasonable opportunity to examine [Jencks material] and prepare

for its use in the trial."

40 (4th Cir. 1983).

United States v. Holmes, 722 F.2d 37,

Here: (1) the agreed discovery orders entered

in this case by Greene and Douglas require disclosure of Jencks

material (and associated Giglio material for that witness) five

business days prior to trial; and (2) while not required by law or

agreement,

the Government has committed to begin voluntarily

providing such materials two months prior to the scheduled trial

date.

Although the Court acknowledges the good faith nature of

Defendants' request based on the complexities of this case, the

82a

Court questions its authority to order immediate production of

Jencks material, United States v. Lewis, 35 F.3d 148, 151 (4th

Cir. 1994),

and even if it has such authority,

finds that

Defendants fail to demonstrate that "immediate production" is

necessary to ensure a fair trial.

Rather, the Government has

proposed a reasonable plan to begin voluntarily producing Jencks

materials two months before trial, and to complete production no

later than the date agreed upon in the discovery orders.5

As to Brady/Giglio material, the Government confirms that it

is aware of,

and is fully complying with,

its Brady/Giglio

obligations, and has already produced large amounts of discovery

(some of which presumably qualifies as Brady/Giglio material).

The Government further asserts that it will continue to comply

with

its

obligations

provide

such

exculpatory

and/or

impeachment materials, and the Government is required by law to do

so "in time for its effective use at trial."

United States v.

Smith Grading & Paving, Inc., 760 F.2d 527, 532 (4th Cir. 1985).

Accordingly, Defendants' motions seeking "immediate" production of

Jencks/Brady/Giglio material are DENJ:ED.

ECF Nos. 270, 281.

5 The Government is reminded that the reason for setting a complex trial

with vast amounts of discovery so many months after the Defendants are

charged is to ensure that all counsel have adequate time to prepare for

trial, and the Government should take seriously its responsibility, even if

grounded only on its oral representations and/or general concepts of

fairness, to produce the bulk of these witness-related materials in the very

near future.

83a

As to Defendant Douglas' related contention seeking an order

compelling the Government's to "preserve" certain investigatory

notes/materials that do not qualify as Jencks material, but could

prove to be Brady/Giglio material depending on trial developments,

the Court ordered additional briefing on such issue.

After

considering

Court

the

Government's

supplemental

brief,

the

DISMISSES as MOOT and alternatively DENIES the request to compel

Government action, agreeing with the Government's contention that,

particularly in this Circuit, it does not have the obligation to

preserve any and all "jottings" or "rough notes" created during

In dismissing/denying the motion, the Court

the investigation.

relies on the Government's representations that: (1) as to written

notes or other materials that are currently maintained in law

enforcement files pursuant to agency practice, counsel for the

Government

will

materials;

(2}

not

ask

any

agency

stop

retaining

such

the Government will both preserve and produce

certain interview reports and memoranda prepared by agents even

though they do not technically qualify as "Jencks" material; and

(3)

the Government "does not object"

to the request that it

preserve written materials associated with witness interviews to

the extent they contain "exculpatory material evidence," and will

comply with its Brady/Giglio obligations "no matter the format of

the information."

ECF No. 344, at 3-4, 6.

84a

i. Motions to Compel Disclosure of Statements

Defendants Greene and Douglas have moved the court to enter

an order requiring the Government to disclose any statement/

confession by any co-defendant that: (1) the Government intends to

offer at trial; and (2) arguably incriminates Defendant Greene or

Douglas.

Defendants contend that they are entitled to such

disclosure at this time so that they can analyze the evidence and

schedule a hearing addressing whether severance is necessary to

avoid a violation of the Confrontation Clause.

See Bruton v.

United States, 391 U.S. 123 (1968).

In response,

the Government acknowledges its obligations

under Bruton and indicates that it does not intend to admit any

unredacted co-defendant testimonial statements that could violate

such rule.

Furthermore,

the Government represents that its

anticipated

evidence

this

arena

will

nontestimonial

statements and co-conspirator statements not covered by Bruton.

Finally, the Government acknowledges that Defendants should be

afforded an opportunity to raise a Bruton challenge at a later

time after additional discovery is provided.

Defendants'

motion

seeking

early

production

witness

statements is therefore moot, and/or premature, as it is predicated

on the Government's assumed intention to introduce statements that

potentially violate Bruton, and the Government has represented

that it has not identified any testimonial statements that it

85a

intends to introduce that potentially violate such rule.

The Court

further highlights the Government's representation that it will

begin producing the relevant witness materials two months prior to

trial (a date that is occurring within the next two weeks), and

that all relevant Jencks materials will be produced "well in

advance of trial" such that Defendants will "be able to determine

whether they need to seek exclusion" of any witness

statements

violative

Bruton.

ECF

No.

295,

85.

Accordingly, the pending motions are DISMISSED as moot and DENIED

premature,

with

such

ruling

being

without

prejudice

Defendants' rights to file a supplemental Bruton motion after

receiving the relevant materials from the Government.

ECF Nos.

273, 279.

J. Motion to Dismiss Indictment - Spelling Error

Defendant Geovanni Douglas has moved for dismissal of the

charges in the superseding indictment on the basis that he was

charged under an incorrectly spelled first name

rather than the correct "Geovanni").

("Giovanni,"

While it appears that the

Government is correct that this Court has authority to correct

such misnomer/typographical error, the grand jury subsequently

returned a second superseding indictment using Douglas' correctly

spelled first name "Geovanni," and the pending motion is therefore

ECF No. 283.

DISMISSED as moot.

had

not

issued

updated

Moreover, even if the grand jury

and

86a

corrected

second

superseding

indictment, such minor spelling error (replacing an "i" for an

"e") does not rise to the level necessary to justify dismissing

the imperfect superseding indictment. Daughtery v. United States,

No. 2:08cv295, 2009 WL 1874105, at *2 (S.D.W. Va. June 29, 2009)

(citing United States v. Denny, 165 F.2d 668, 670 (7th Cir. 1947)).

K. Motion to Dismiss - Speedy Trial

Defendant Geovanni Douglas has moved for dismissal of the

superseding indictment based on an alleged violation of the Speedy

Trial Act.

ECF No. 285.

The Government responded to the merits

of such motion in its consolidated brief in opposition; however,

the

grand

jury

subsequently

returned

second

superseding

indictment against Defendant Douglas, which includes additional

felony charges.

At that time,

the superseding indictment was

dismissed, and Douglas' counsel has subsequently filed an updated

motion seeking dismissal of the Second Superseding Indictment on

Speedy Trial grounds,

with the Government responding to such

motions through a separate brief in opposition.

Accordingly, the

Speedy Trial motion filed at ECF No. 285 is DXSMXSSED as moot, and

the Court will address the substance of Defendant Douglas' updated

Speedy Trial arguments by a separate, but contemporaneous, order.

In summary, the Court has addressed herein the thirty pending

motions ranging from ECF No. 248 to ECF No. 290.

such matters are

taken

under advisement,

To the extent

and to

the extent

additional motions remain pending, such matters will either be

87a

addressed by separate pre-trial order or will be addressed by the

Court at trial.

The Clerk is REQUESTED to send a copy of this Memorandum Order

to all counsel of record.

J:T J:S SO ORDERED.

Norfolk, Virginia

August�' 2019

Mark S. Davis

CHIEF UNITED STATES DISTRICT JUDGE

88a

APPENDIX D

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89a

APPENDIX E

Code of Virginia

§ 18.2-32. First and second degree murder defined; punishment.

Murder, other than aggravated murder, by poison, lying in wait, imprisonment,

starving, or by any willful, deliberate, and premeditated killing, or in the commission

of, or attempt to commit, arson, rape, forcible sodomy, inanimate or animate object

sexual penetration, robbery, burglary or abduction, except as provided in § 18.2-31,

is murder of the first degree, punishable as a Class 2 felony.

All murder other than aggravated murder and murder in the first degree is murder

of the second degree and is punishable by confinement in a state correctional facility

for not less than five nor more than forty years.

Code 1950, § 18.1-21; 1960, c. 358; 1962, c. 42; 1975, cc. 14, 15; 1976, c. 503; 1977, cc.

478, 492; 1981, c. 397; 1993, cc. 463, 490; 1998, c. 281; 2021, Sp. Sess. I, cc. 344, 345.

90a

APPENDIX F

Code of Virginia

§ 18.2-26. Attempts to commit felonies other than Class 1 felony offenses;

how punished.

Except as provided in § 18.2-25, every person who attempts to commit an offense that

is a felony shall be punished as follows:

(1) If the felony attempted is punishable by a maximum punishment of life

imprisonment or a term of years in excess of twenty years, an attempt thereat shall

be punishable as a Class 4 felony.

(2) If the felony attempted is punishable by a maximum punishment of twenty years'

imprisonment, an attempt thereat shall be punishable as a Class 5 felony.

(3) If the felony attempted is punishable by a maximum punishment of less than

twenty years' imprisonment, an attempt thereat shall be punishable as a Class 6

felony.

Code 1950, §§ 18.1-17, 18.1-18; 1960, c. 358; 1975, cc. 14, 15; 1994, c. 639; 2021, Sp.

Sess. I, cc. 344, 345.

91a

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