Petition for Writ of Certiorari — Martin L. Hunt and Xavier Greene, Petitioners v. United States
Supreme Court briefAug 13, 2024
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No. ______
IN THE
Supreme Court of the United States
_________________________________
MARTIN HUNT
XAVIER GREENE,
Petitioners,
v.
UNITED STATES OF AMERICA,
Respondent.
________________________________
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Fourth Circuit
________________________________
APPENDIX
____________________________
JAMES WYDA
Federal Public Defender
District of Maryland
JOHN G. BAKER
Federal Public Defender
Western District of North Carolina
PARESH S. PATEL
Assistant Federal Public Defender
6411 Ivy Lane, Suite 710
Greenbelt, Maryland 20770
Telephone: (301) 344-0600
Email: paresh_patel@fd.org
JOSHUA B. CARPENTER*
Assistant Federal Public Defender
1 Page Ave., Suite 210
Asheville, North Carolina 28704
Telephone: (828) 232-9992
Email: joshua_carpenter@fd.org
Counsel for Petitioner Martin Hunt
Counsel for Petitioner Xavier Greene
*Counsel of Record
TABLE OF CONTENTS
Appendix A:
Opinion by the United States Court of Appeals for the
Fourth Circuit (Apr. 16, 2024) ..............................................App. 1
Appendix B:
Second Superseding Indictment (June 12, 2019) ...............App. 50
Appendix C:
District Court Memorandum Order (Aug. 8, 2019) ..........App. 105
Appendix D:
Hunt Jury Verdict (Dec. 10, 2019) ....................................App. 126
Appendix E:
Greene Jury Verdict (Dec. 10, 2019) ................................App. 131
Appendix F:
Hunt District Court Sentencing Transcript
(May 6, 2021) .....................................................................App. 135
Appendix G:
Greene District Court Sentencing Transcript
(July 1, 2021) .....................................................................App. 177
Appendix H:
Judgment of Conviction in the United States District Court
for the Eastern District of Virginia (May 7, 2021) ...........App. 227
Appendix I:
Judgment of Conviction in the United States District Court
for the Eastern District of Virginia (May 7, 2021) ...........App. 234
Appendix J:
Fourth Circuit Order Denying Petition for Rehearing
(May 17, 2024) ...................................................................App. 240
Appendix K:
Virginia Code § 18.2-26 .....................................................App. 241
Appendix L:
Virginia Code § 18.2-32 .....................................................App. 242
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-4231
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MARTIN L. HUNT, a/k/a O.G. Martin,
Defendant – Appellant.
No. 21-4300
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DESHAUN RICHARDSON, a/k/a Day Day,
Defendant – Appellant.
App. 1
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No. 21-4334
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ERIC NIXON, a/k/a Young Nix, a/k/a Lil Nix,
Defendant – Appellant.
No. 21-4349
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
XAVIER GREENE, a/k/a BJ,
Defendant – Appellant.
No. 21-4355
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RAYMOND PALMER, a/k/a Ray Dog,
2
App. 2
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Defendant – Appellant.
No. 21-4358
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RYAN TAYBRON, a/k/a 22, a/k/a Ryan Savage,
Defendant – Appellant.
No. 21-4509
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
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
3
App. 3
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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.
4
App. 4
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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.
I.
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.
5
App. 5
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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.
A.
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
6
App. 6
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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.
B.
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.
7
App. 7
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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
8
App. 8
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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).
C.
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.
9
App. 9
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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.
D.
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
10
App. 10
.
.
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
1
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.
11
App. 11
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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,
12
App. 12
.
.
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
A.
“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
2
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.
13
App. 13
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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
14
App. 14
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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
15
App. 15
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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).
At
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–
16
App. 16
.
.
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).
3
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.
17
App. 17
.
.
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.
B.
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).
4
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).
19
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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
5
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.
20
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.
.
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.”).
C.
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
6
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.
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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)).
A.
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
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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
23
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.
.
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).
7
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.
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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
25
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.
.
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.
8
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).
26
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.
.
B.
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
9
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.
10
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)
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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.
28
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.
.
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
11
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.
29
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.
.
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
V.
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.
12
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))).
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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)).
A.
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.
1.
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
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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.
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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.
2.
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.
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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))).
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B.
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.
1.
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.
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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.
36
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.
.
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
13
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).
37
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.
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
2.
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
14
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.
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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
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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
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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
41
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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
15
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.
42
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.
.
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
16
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.
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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
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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
45
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.
.
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
17
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).
46
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.
.
(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,
18
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).
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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.
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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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1
1
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
NEWPORT NEWS DIVISION
2
3
4
UNITED STATES OF AMERICA,
5
Plaintiff,
6
v.
7
MARTIN HUNT,
8
Defendant.
)
)
)
)
)
)
)
)
)
Criminal Action No.:
4:17cr52
9
10
TRANSCRIPT OF PROCEEDINGS
(Sentencing)
11
12
Norfolk, Virginia
May 6, 2021
13
14
BEFORE:
THE HONORABLE MARK S. DAVIS
United States District Judge
15
16
17
18
19
20
Appearances:
OFFICE OF THE UNITED STATES ATTORNEY
By: AMY E. CROSS
HOWARD J. ZLOTNICK
BRIAN JAMES SAMUELS
Counsel for the United States
23
RULOFF, SWAIN, HADDAD, MORECOCK, TALBERT & WOODWARD,
P.C.
By: LAWRENCE H. WOODWARD, JR.
-- and -BISCHOFF MARTINGAYLE, PC
By: EMILY MEYERS MUNN
Counsel for Martin Hunt
24
The Defendant appearing in person.
21
22
25
Paul L. McManus, RMR, FCRR Official Court Reporter
App. 135
.
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.
2
1
P R O C E E D I N G S
2
3
(Commenced at 10:12 a.m. as follows:)
4
5
6
COURTROOM DEPUTY CLERK:
States of America v. Martin L. Hunt.
7
8
9
10
In Case No. 4:17cr52, United
Ms. Cross, Mr. Samuels, is the government ready to
proceed?
MS. CROSS:
The government is ready.
Good morning,
Your Honor.
11
MR. SAMUELS:
12
THE COURT:
13
COURTROOM DEPUTY CLERK:
Good morning, Your Honor.
Good morning, Counsel.
Mr. Woodward and Ms. Munn, is
14
the defendant ready to proceed?
15
MR. WOODWARD:
16
THE COURT:
17
Madam Clerk, would you also administer the oath?
18
(Defendant placed under oath.)
19
THE COURT:
All right.
20
All right.
You all can have a seat.
21
So on December 10 of 2019, Mr. Hunt was found guilty
22
by a jury of the following 11 counts of the second superseding
23
indictment:
We're ready, Your Honor.
Good morning.
Good morning, counsel.
Thank you.
24
One count of racketeering conspiracy in violation of
25
Title 18 of the United States Code, Section 1962(d); two counts
Paul L. McManus, RMR, FCRR Official Court Reporter
App. 136
.
Case 4:17-cr-00052-MSD-RJK Document 911 Filed 08/19/21 Page 3 of 42 PageID# 12167
.
3
1
of murder in aid of racketeering activity in violation of Title
2
18 of the United States Code, Section 1959(a)(1);
3
One count of attempt and conspiracy to commit murder
4
in aid of racketeering, in violation of Title 18 of the United
5
States Code, Section 1959(a)(5);
6
Two counts of attempted murder in aid of racketeering,
7
in violation of Title 18 of the United States Code,
8
Section 1959(a)(5);
9
Two counts of using a firearm resulting in death, in
10
violation of Title 18 United States Code, Section 924(c)(1) and
11
(j).
12
And three counts of possession or discharge of a
13
firearm in furtherance of a crime of violence, in violation of
14
Title 18 of the United States Section 924(c)(1).
15
16
17
So that's what the Court has before it in terms of the
presentence report that was also prepared in the case.
Now, in preparation for this sentencing hearing today,
18
the Court has, of course, reviewed the presentence report that
19
I'm holding up, and I've reviewed the position statements that
20
were filed by each of the parties.
21
In addition, this morning I was provided with a letter
22
written by Mr. Hunt dated June 10 of 2020.
23
of that in preparation for today.
And so I've read all
24
Mr. Woodward, with respect to this letter, has it been
25
filed on the docket or do you want me to file it as a court-only
Paul L. McManus, RMR, FCRR Official Court Reporter
App. 137
.
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.
4
1
letter on our docket?
How do you want me to address it?
2
MR. WOODWARD:
3
THE COURT:
4
MR. WOODWARD:
Do you want me --
For this you can stay there.
Judge, I think I would like you to
5
attach it as a court-only document and also attach it and have
6
it go forward with his presentence report.
7
I would tell the Court, Mr. Hunt, as you can see,
8
wrote that letter almost a year ago during one of the prior
9
times we almost had this sentencing before it was continued for
10
COVID, and I was only able to get it from him -- or only got it
11
from him this morning, is why I just dropped it off, I think
12
right about nine o'clock or so.
13
THE COURT:
14
MR. WOODWARD:
15
All right.
Thank you.
I provided a copy to the United States
Attorney and to Mr. Noll.
16
THE COURT:
17
Then Madam Clerk, would you go ahead and make it a
All right.
Thank you, Mr. Woodward.
18
court-only document then on the docket?
19
we'll attach it to the presentence report as well without
20
objection.
21
And also Officer Noll,
All right.
I think the next thing we need to address with the
22
government is whether there has been notification of victims in
23
the case according to the Crime Victim Act.
24
25
MS. CROSS:
Your Honor, yes.
All of the victims have
been notified of today's date as part of the Victim Notification
Paul L. McManus, RMR, FCRR Official Court Reporter
App. 138
.
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.
5
1
System.
Unfortunately some of those victims have changed their
2
numbers.
But everything that we have attempted to do has given
3
those victims an opportunity to be here and be heard.
4
THE COURT:
5
So let's move on to the presentence report itself.
6
All right.
Thank you, Ms. Cross.
couple things that I noted.
7
Of course we were originally going to be here last
8
year for sentencing, and so the presentence report is dated
9
September 3, 2020.
10
May 6th, 2021 on Page 1.
11
So I will change that without objection to
Then I believe that would make on Page 2, 24 now?
12
years old?
13
sure that's accurately stated.
14
A
24
So I'll change that without objection also to make
So Mr. Woodward, have you reviewed the presentence
15
report with its addenda and did you have enough time to review
16
it with Mr. Hunt?
17
MR. WOODWARD:
Yes, Your Honor.
I will tell the Court
18
that, obviously the length of time, but Ms. Munn and I, both
19
together and individually, numerous times preparing before we
20
would get to the (inaudible).
21
COURT REPORTER:
Mr. Woodward?
22
you turn your microphone on?
23
THE COURT:
24
MR. WOODWARD:
25
Mr. Woodward?
Would
Yes, if you would -Yes Your Honor, we've reviewed it, both
myself and Ms. Munn, multiple times with Mr. Hunt in preparation
Paul L. McManus, RMR, FCRR Official Court Reporter
App. 139
.
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.
6
1
for the sentencing, the other dates and this date.
2
THE COURT:
3
Ms. Munn, you can sit and just speak right into that
4
5
All right.
Thank you.
microphone while you're there so we can hear you.
MS. MUNN:
Yes, sir.
I agree.
We both met with Mr.
6
Hunt individually and together, and we believe he's prepared for
7
the sentencing today.
8
THE COURT:
9
10
I just wanted to give you the opportunity
to respond.
There is one other issue in the presentence report
11
that I noted, and the probation officer mentioned to me that you
12
all -- there may have been some discussion about this at one
13
point, and it has to do with the criminal history category and
14
some of the points.
15
observation that the conduct set forth in Paragraphs 104 and 105
16
of the presentence report was the same conduct used by the
17
United States as evidence against Mr. Hunt.
18
Document 696 at Page 1.
19
from the parties before it makes any formal ruling, upon review
20
of the Court's 404(b) ruling in this case early on prior to
21
trial, as well as the Court's notes from the trial, it appears
22
that the two criminal history points attributed to Mr. Hunt in
23
Paragraph 104 should not be attributed because that conduct
24
should be deemed part of the instant offense under 4A1.2(a)(1)
25
defining a prior sentence for the purpose of calculating a
So the defendant's position paper makes the
That's in their
While the Court will, of course, hear
Paul L. McManus, RMR, FCRR Official Court Reporter
App. 140
.
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.
7
1
defendant's criminal history under the guidelines as "Any
2
sentence previously imposed upon adjudication of guilt for
3
conduct not part of the instant offense."
4
And in the Court's pretrial order addressing various
5
Rule 404(b) motions in limine that was issued on
6
October 21, 2019 and is on the docket as No. 499, the Court held
7
as follows.
8
"With respect to the May 8, 2015 police stop, based on
9
the arguments and proffers made in the party's filings,
10
Defendant Hunt's motion challenging the admissibility of the
11
May 8, 2015 event which the government asserts involves gun
12
possession and admissions linking the gun to gang activity is
13
denied, as Hunt appears to challenge the reliability of the
14
evidence purportedly establishing his firearm possession on such
15
date and fails to undercut its admissibility as intrinsic."
16
So according to the Court's recollection, the witness
17
for the government, Agent Quinones, testified during the second
18
week of trial that he stopped Martin Hunt for trespassing in the
19
Marshall Courts area and Hunt ultimately fled from him, and
20
Officer Rosario, who was there to help, they chased after
21
Mr. Hunt and caught him and ultimately found a concealed firearm
22
on Mr. Hunt.
23
indicated that the firearm was "for protection from the Vill and
24
Newsome Park boys," which Agent Quinones recognized as rival
25
gangs in the South Precinct.
Mr. Hunt was given his Miranda warnings and
Paul L. McManus, RMR, FCRR Official Court Reporter
App. 141
.
Case 4:17-cr-00052-MSD-RJK Document 911 Filed 08/19/21 Page 8 of 42 PageID# 12172
.
8
1
The Court, of course, is aware that any change
2
reducing defendant's criminal history category will not change
3
the sentence recommended by the guidelines or calculated by the
4
guidelines; however, properly calculating the guidelines is
5
always the Court's first step.
6
Here, because the entire basis for the admissibility
7
of Mr. Hunt's arrest and firearm possession was the government's
8
assertion that such evidence was intrinsic to the RICO
9
conspiracy charged in this case, it would certainly appear to
10
the Court that such offense would qualify as relevant conduct,
11
although as I said, I will hear from counsel before I make a
12
ruling on the issue.
13
So I'll just ask it this way:
14
agreement with the Court's view on this?
15
MS. CROSS:
Yes, Your Honor.
16
THE COURT:
All right.
17
MR. WOODWARD:
18
THE COURT:
Is the government in
Is there any objection?
No, Your Honor.
Okay.
So we will change the criminal
19
history category from a II to a I, and I'll ask that the
20
probation officer make sure that the presentence report
21
accurately reflects that.
22
All right.
Now, Mr. Woodward, you -- again, you can
23
stay seated and just pull that microphone up to you and make
24
sure it's on and speak right into it when you're there.
25
MR. WOODWARD:
Thank you.
Paul L. McManus, RMR, FCRR Official Court Reporter
App. 142
.
Case 4:17-cr-00052-MSD-RJK Document 911 Filed 08/19/21 Page 9 of 42 PageID# 12173
.
9
1
THE COURT:
So I know that of course there is a
2
general objection in the case because Mr. Hunt, of course,
3
maintains his innocence in the matter, so I understand there's a
4
general objection to the offense conduct that is in the
5
presentence report.
6
filed, are there any other errors in the report that you need to
7
bring to my attention?
8
MR. WOODWARD:
Other than the objections that you've
No, Your Honor.
I think that the --
9
our position as set forth in our paper that, you know, obviously
10
we are contesting all of that, but there's no specific issues
11
that I think I need to address unless the Court has some
12
question about something.
13
my position paper was what you just ruled on about the concealed
14
weapon event.
15
The only specific thing I raised in
THE COURT:
Okay.
17
MS. MUNN:
Yes, sir.
18
THE COURT:
Now Mr. Hunt, you have a microphone that's
16
And Ms. Munn, I take it you agree
with that?
19
right there also, and although, Counsel, I will have you all
20
come up to the podium later, for the moment we're going to do
21
this right from the table.
22
23
So Mr. Hunt, have you had a chance to review the
presentence report that was prepared in the case?
24
THE DEFENDANT:
25
THE COURT:
Yes, Your Honor.
All right.
And did you have enough time
Paul L. McManus, RMR, FCRR Official Court Reporter
App. 143
.
Case 4:17-cr-00052-MSD-RJK Document 911 Filed 08/19/21 Page 10 of 42 PageID# 12174
.
10
1
to review that report with your attorneys?
2
THE DEFENDANT:
3
THE COURT:
Yes, sir.
And other than the objections that have
4
been filed by your attorneys, did you see any other errors in
5
the presentence report that you need to bring to my attention?
6
THE DEFENDANT:
7
THE COURT:
No, sir.
Do you believe that this presentence
8
report fully covers your background?
9
THE DEFENDANT:
10
THE COURT:
11
THE DEFENDANT:
12
THE COURT:
Yes, sir.
All right.
Thank you, Mr. Hunt.
You're welcome.
As I mentioned, the defense has broadly
13
objected to the offense conduct and the guideline calculation
14
that's predicated on that conduct, and I am prepared to address
15
that general objection, but I do want to give you the
16
opportunity, Mr. Woodward, to -- or Ms. Munn -- to make any
17
comments you have about that up at the podium if you want to.
18
But if you wish to rely on your written objection, I'm prepared
19
to address it.
20
MR. WOODWARD:
Your Honor, we would want to just rely
21
on our written objection.
22
jury, and there's no reason to reiterate the various arguments
23
that were made to the jury.
24
to use in terms of today's proceeding, and we understand that.
25
THE COURT:
Obviously the case was tried to a
Their verdict is what the Court has
All right.
Thank you.
Paul L. McManus, RMR, FCRR Official Court Reporter
App. 144
.
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.
11
1
Ms. Munn, are you in agreement?
2
THE DEFENDANT:
3
THE COURT:
4
Yes, sir, that's correct.
All right.
So let me go on then to
address this objection.
5
Mr. Hunt has broadly challenged the offense conduct
6
and the resulting guideline calculations, noting that he
7
maintains his innocence and maintains all prior objections made
8
at trial.
9
proving by a preponderance of the evidence the facts that
10
establish that a defendant was involved in specific conduct.
11
However, once the government has provided evidence sufficient to
12
justify inclusion of such conduct in the presentence report, a
13
defendant's mere objection to the finding in the presentence
14
report is not sufficient, as the defendant has an affirmative
15
duty to make a showing that the information in the presentence
16
report is unreliable, and articulate the reasons why the facts
17
contained there are untrue or inaccurate.
18
affirmative showing that the information in the presentence
19
report is inaccurate, the Court is free to adopt the findings in
20
the presentence report without more specific inquiry or
21
explanation.
The government, of course, bears the burden of
Without an
22
In determining whether information included in the
23
presentence report is reliable, the Fourth Circuit Court of
24
Appeals gives due regard to the opportunity of the district
25
court to judge the credibility of the witnesses at trial.
Paul L. McManus, RMR, FCRR Official Court Reporter
App. 145
.
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.
12
1
Fourth Circuit unpublished precedent indicates that when there
2
is a witness credibility issue as to drug weights or other
3
sentencing factors, the Court should not rely on the jury's
4
implicit decisions appearing to credit the testimony of a trial
5
witness, but rather the Court should make its own credibility
6
findings.
7
Here, based on the evidence in the presentence report
8
which is supported by the trial record in the case, the Court is
9
prepared to make a ruling; however, Mr. Woodward and Ms. Munn,
10
I'm certainly aware that a defendant always has a right, if he
11
wishes, to testify regarding any objections, and defense
12
counsel, when faced with that issue, has to have a conversation
13
with their client and make sure that the relevant risks and
14
rewards have been discussed.
15
you the opportunity to make any comment that you want to on
16
that.
17
MR. WOODWARD:
And so I do want to at least give
Yes, Your Honor.
Both Ms. Munn and I,
18
myself again, as recently as this morning, have explained to
19
Mr. Hunt that he could testify under oath and be subject to
20
cross-examination if he were to desire.
21
consistently throughout this process that he does not desire to
22
do that, and we've explained how that would weigh into any
23
appeal that would be filed.
24
he's fully aware of his rights.
25
letter, but does not want to testify under oath and be subject
He's indicated to us
I would represent to the Court that
He wants the Court to have his
Paul L. McManus, RMR, FCRR Official Court Reporter
App. 146
.
Case 4:17-cr-00052-MSD-RJK Document 911 Filed 08/19/21 Page 13 of 42 PageID# 12177
.
13
1
to cross-examination.
2
THE COURT:
3
Mr. Hunt, has Mr. Woodward accurately stated that?
4
THE DEFENDANT:
5
THE COURT:
6
So obviously the Court sat through the trial of this
All right.
Yes, sir.
All right.
Thank you, Mr. Hunt.
7
case.
8
weeks in total, with some Fridays off, I think, and based on all
9
the evidence in the presentence report -- which, again, is
10
supported by the trial record, in my estimation -- I overrule
11
the blanket objection to the presentence report offense conduct
12
paragraphs.
13
It was multiple weeks -- perhaps seven -- six or seven
Notably, as set forth in the Fourth Circuit's decision
14
in United States v. Terry and subsequent Fourth Circuit cases,
15
Mr. Hunt has not made a showing demonstrating that the
16
information in the presentence report is unreliable or
17
inaccurate.
18
trial evidence and its independent credibility determinations
19
support the inclusion of the factual information that is set
20
forth in the presentence report in this case.
21
To the contrary, the Court's recollection of the
Now, I believe that addresses all of the objections
22
that have been made in the case.
23
will adopt the factual statements contained in the presentence
24
report as its findings of fact in this case with those few
25
amendments that I just, that I already mentioned about the date,
That being the case, the Court
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14
1
2
age and the criminal history category.
Now, in this matter, because the government elected
3
not to seek the death penalty, the statutory maximum punishment
4
for each of the counts for which death may have otherwise been
5
available is a term of life imprisonment.
6
ranges as provided by statute.
7
established by Congress and the president for the offenses of
8
conviction are as follows:
9
So let's review these
The specific statutory range
Count 1, RICO conspiracy, a maximum of life
10
imprisonment; Counts 6 and 8 VICAR murder, mandatory life
11
imprisonment; Counts 7 and 9, firearm discharge resulting in
12
death, 10 years to life; Count 12, VICAR attempt and conspiracy
13
to commit murder, not more than 10 years; Count 13, firearm
14
possession in furtherance, that's five years to life; Counts 30
15
and 32, VICAR attempted murder, that's not more than 10 years;
16
and Counts 31 and 33, firearm discharge in furtherance, and
17
that's 10 years to life.
18
Now, pursuant to statute, the sentences for Counts
19
13, 31 and 33, all 924(c) offenses involving possession or
20
discharge of a firearm in furtherance of a crime of violence,
21
must be served consecutively to each other and to the sentence
22
imposed on the other counts.
23
Additionally, pursuant to the Fourth Circuit's
24
interpretation of the interplay between 924(c) and 924(j) which
25
is set forth in United States v. Bran, the sentences imposed on
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1
the two 924(j) counts, which are Counts 7 and 9, must be served
2
consecutively to each other and to the sentences imposed on all
3
other counts.
4
Recognizing the defendant's preserved objections to
5
the offense conduct and the presentence report upon which I've
6
ruled, does everyone agree that I've accurately stated those
7
statutory ranges and provisions?
8
MS. CROSS:
The United States agrees, Your Honor.
9
THE COURT:
All right.
10
MR. WOODWARD:
11
THE COURT:
And Ms. Munn?
12
MS. MUNN:
Yes, sir.
13
THE COURT:
All right.
I'll ask, first, Ms. Cross.
Mr. Woodward?
Yes, sir.
Now moving on to supervised
14
release.
15
the two VICAR murder counts and all of the 924(c) counts,
16
including the two 924(j) offenses have a maximum of five years
17
of supervised release.
18
maximum of three years of supervised release.
As for supervised release, the RICO conspiracy Count,
The remaining VICAR counts have a
19
Ms. Cross, have I accurately stated that?
20
MS. CROSS:
Yes, Your Honor.
21
THE COURT:
Mr. Woodward?
22
MR. WOODWARD:
23
THE COURT:
Ms. Munn?
24
MS. MUNN:
Yes, sir.
25
THE COURT:
All right.
Yes, sir.
Then having reviewed the
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1
statutory punishment in this matter, the Court moves on to the
2
guidelines that have been calculated based on the advisory
3
guidelines promulgated by the United States Sentencing
4
Commission.
5
It appears that application of the advisory guidelines
6
results in an offense level of 43 and a criminal history
7
category of I, and the resulting advisory guideline range
8
applicable to all counts, other than the three 924(c) counts, is
9
life imprisonment.
10
Additionally, as we just discussed, the sentence
11
imposed for the two 924(j) counts must be served consecutively
12
to the sentence imposed on all other counts.
13
924(c) counts, the advisory guideline range is 10 years
14
consecutive for the two discharge counts, those are Counts 31
15
and 33, and five years consecutive for the possession count,
16
that's Count 13.
17
range is life imprisonment plus two consecutive terms of life
18
imprisonment plus 25 years consecutive.
19
As for the three
Accordingly, in total, the advisory guideline
Again, recognizing defendant's preserved objections to
20
the offense conduct on which I've already ruled, based on the
21
Court's ruling adopting the offense conduct in the presentence
22
report, does the government agree that I've accurately stated
23
that advisory guideline range?
24
MS. CROSS:
Yes, Your Honor.
25
THE COURT:
Mr. Woodward?
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1
MR. WOODWARD:
2
THE COURT:
Ms. Munn?
3
MS. MUNN:
Yes, sir.
4
THE COURT:
All right.
5
Now we move on to the issue of any evidence or other
Yes, sir.
Thank you.
6
materials to be presented today.
7
evidence or other materials it wishes to present?
8
MS. CROSS:
Does the government have any
Your Honor, we do have one family member
9
who has asked to address the Court as to victim impact.
10
name is Marie Lyttle.
11
Lyttle, the mother of Domingo Davis, that she has asked to be
12
read to the Court this morning.
13
THE COURT:
Her
We also have a statement by Yvonne
Okay.
Now, Ms. Cross, is it your
14
preference to have Ms. Marie Lyttle come to the podium and speak
15
from there?
16
MS. CROSS:
Yes, Your Honor.
17
THE COURT:
All right.
18
letter, is that something you're going to read?
19
20
And then with respect to the
MS. CROSS:
Yes, Your Honor.
I will approach the
podium and read it into the record.
21
THE COURT:
All right.
23
MS. CROSS:
She is, Your Honor.
24
THE COURT:
Ms. Lyttle, if you wish to make a
22
25
So Ms. Lyttle, is she in the
courtroom?
statement, you're welcome to come to the podium and make the
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1
statement right there.
Yes, ma'am, right up here where this
2
podium is in the middle.
We'll be happy it hear from you.
3
Thank you.
4
MS. MARIE LYTTLE:
Domingo was my nephew, and he died
5
that night by a bunch of clowns who was jealous.
6
could see why after I came to court a couple of times.
7
wasn't the perfect young man either, but he was ours, and
8
everywhere he went, someone loved him.
9
school or have his moments where he get into trouble, but he was
10
never around here killing people or shooting people or injuring
11
people.
12
didn't deserve it, and lost it for all the wrong reasons.
And at least I
Domingo
He didn't always go to
He wore his heart on his sleeve for too many people who
13
I just wish that he could have spoke to my nephew that
14
night and asked him to fight, instead of try to kill him.
15
you let your gun talk for you, and it backfired, you right up in
16
here.
17
ever be:
18
gang says.
19
that every day you are thinking of all the things that you have
20
done out here and the lives that you affected and get what you
21
get in return 10-times fold, and when you're ready to take your
22
last breath, I hope Jada and Domingo comes and takes you.
But
So now you're dealing with a gang bigger than yours will
The government.
So now you can go and do what that
And now you represent them like you did.
23
Thank you.
24
THE COURT:
All right.
25
All right.
Ms. Cross?
I hope
Thank you, Ms. Lyttle.
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1
MS. CROSS:
Thank you, Your Honor.
2
THE COURT:
You may step to the podium.
3
MS. CROSS:
Your Honor, this was written by Yvonne
4
Lyttle, that's L-y-t-t-l-e, and submitted to the United States
5
yesterday.
6
THE COURT:
Mr. Hunt, will you put your mask back on?
8
All right.
Go ahead.
9
MS. CROSS:
Thank you, Judge.
10
"Good morning.
7
Thank you.
I want to first thank everyone that
11
helped our family get justice.
12
you guys' hard work and long hours.
13
couldn't spend with your families, and from the bottom of my
14
heart and our family, we are grateful.
15
We all really appreciate all of
I know it was time you guys
"Martin, I want you to know that Domingo was loved by
16
so many people.
17
loving with a big heart.
18
He loved his family and his friends.
19
wasn't perfect.
20
miss my son so much.
21
part in killing my son, you didn't just kill my son, you also
22
left us as a family devastated and heartbroken.
Our lives
23
haven't, and I'm sure will never be, the same.
I want you to
24
know the heartache and pain you have caused me.
Since Domingo's
25
death, it is a feeling of me losing my breath and never catching
Domingo was our heart.
He was smart, funny and
To know my Domingo was to love him.
Yes, my son had flaws.
But he was perfect for me.
He
My whole heart, I
April 6th, 2015, when you chose to take
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1
it again.
2
pain runs deep in my soul.
3
that took part in killing my son.
4
forgive you.
5
suffer every day of your life and that it's a living hell every
6
day for you in prison.
When I lost my son, a part of my heart died.
I hate every last one of you animals
I will never in my life
I would rather burn in hell forever.
That is Ms. Lyttle's statement, Judge.
8
THE COURT:
for me?
I hope you
I hope you never get out of prison."
7
9
The
All right.
Ms. Cross, would you wipe down
Would you wipe down the podium for me?
10
MS. CROSS:
Yes.
11
THE COURT:
Thank you.
12
So those are the victim statements in the matter.
13
14
15
Absolutely, Judge.
Court has it.
I take it there's no other evidence from the
government?
16
MS. CROSS:
No other evidence, Your Honor.
17
THE COURT:
Mr. Woodward, do you have any evidence
18
that you wish to present?
19
MR. WOODWARD:
20
considering my client's letter.
21
or any other evidence.
No, Your Honor, other than the Court
He doesn't have any family here
22
THE COURT:
23
Well, why don't we move on to argument then.
24
25
The
All right.
Thank you.
Ms. Cross, will you be doing that?
MS. CROSS:
I will, Your Honor.
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1
THE COURT:
All right.
2
MS. CROSS:
Thank you, Judge.
3
Judge, the United States understands that the
Happy to hear from you.
4
sentencing here today, Mr. Hunt faces those mandatory terms of
5
life imprisonment for his activities in the 36th Street Bang
6
Squad.
7
criminal street gang, it predated the activities we're going to
8
talk about today.
9
Martin Hunt was a member of the 36th Street Bang Squad long
10
before early 2015.
11
in time, specifically four months of 2015 that irrevocably
12
changed the lives of four people and their families, all for the
13
sake of a gang war, retaliating, one-upping, revenge to get
14
respect, demanding that respect through the use of force,
15
taunting, social media, and the attempt or the taking of each
16
other's lives.
17
And although we know that his membership in the hybrid
We know from the evidence at trial that
But today we're going to look at a snapshot
In just four months between March of 2015 and June of
18
2015, Martin Hunt not only had firearms, but he used or was
19
prepared to use them.
20
before Your Honor, that he gave his brother, his little brother,
21
a gun to protect himself out in the street.
22
didn't trust the members of the 36th Street Bang Squad.
23
firearm was a Bryco 9mm.
24
Martin Hunt a gun, Martin Hunt used that gun.
25
on Wickham Avenue to shoot at persons he deemed enemies.
March of 2015, Raquille Jackson testified
He told you he
That
Within days of Raquille Jackson giving
He used that gun
His
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1
ops.
2
streets of Newport News.
3
his head and buttocks; Phillips Drew to his face, his buttocks
4
and his ankle.
5
hospital with life-threatening injuries and remained in the
6
hospital for over a month, with Arthur Jones battling a skull
7
fracture and extensive injury to his brain and Phillip Drew
8
having a fractured tibia and bowel injuries and severe
9
endocranial bleeding, while still in the hospital undergoing
10
multiple surgeries to save their life and quality of life,
11
Martin Hunt didn't stop.
12
He left Arthur Jones and Phillip Drew laying in the
Arthur Jones had a gunshot wound to
While those two young men were taken off to the
You see, Arthur Jones and Phillip Drew didn't leave a
13
hospital before April 6th of 2015, and on April 6th of 2015,
14
Martin Hunt, along with other members of the 36th Street Bang
15
Squad, armed themselves yet again.
16
then ambushed persons that they deemed their enemies, members of
17
the Walker Village Murder Gang.
18
planning and searching, there was no hesitation when the group
19
of four men, including Martin Hunt, walked across that house --
20
walked across from that house on 25th Street in Newport News
21
with a group of people standing outside the house.
22
didn't hesitate to fire.
23
had used on Arthur Jones and Phillip Drew.
24
decision because the gang had been disrespected.
25
Domingo Davis had come out and shot at one of their members, so
They planned, conspired and
And unfortunately, all that
Martin Hunt
Again, firing that Bryco 9mm that he
He made that
Allegedly
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1
2
they were going to make it right in their eyes.
That shooting left Domingo Davis with a gunshot wound
3
to his chest and Jada Richardson, 13 years old, attending a
4
get-together at the house, with a gunshot wound to her head.
5
Neither of them even survived for the paramedic to get there.
6
Martin Hunt fled.
He fled and discussed what he had
7
done with the other members of the 36th Street Bang Squad, and
8
he actually gave that Bryco 9mm back to his brother who
9
discarded it for him.
10
But that wasn't the end of Martin Hunt having guns.
11
As the Court has spoken about this morning, a month later, in
12
May, he's caught with yet another gun, a gun that he had gotten
13
again from his brother, a Glock.
14
Courts, the 36th Street Bang Squad territory, said he needed to
15
protect himself from Newsome Park and The Vill.
16
He ran from police in Marshall
The Court can recall the Facebook messages, the
17
thousands of pages that were gone through.
18
for this gang war in those pages.
There wasn't remorse
This was a way of life.
19
While those patients, while Domingo Davis's family and
20
Jada Richardson's families were mourning the deaths of their son
21
and daughter, Martin Hunt again assembles with the 36th Street
22
Bang Squad, and this time arms himself and goes to a public high
23
school to look for a gang rival to kill him.
He sits in a car
24
with a revolver that's loaded, and they wait.
And Martin Hunt
25
discusses that they're going to off Jeremiah Smith.
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1
They couldn't get to him outside the school, so they
2
followed a public school bus, two cars deep, with the intent of
3
murdering Jeremiah Smith.
4
Shaquone Ford testified before Your Honor that they got caught
5
at a stop light.
6
Ford to run that stop light.
7
that gun out that he had and to try to get out of the car to run
8
across traffic to get to the bus.
9
But they got caught at a stop light.
And Martin Hunt was mad.
He wanted Shaquone
He even went so far as to pull
He was encouraged to stay in.
Because of that red light, Jeremiah Smith and other
10
children from that bus were able to exit and get into the
11
complex.
12
in a totally separate part of Newport News, Martin Hunt was
13
found with that revolver, and he did go to prison in the state
14
system for the next two years.
Thankfully that night, because of a shots-fired call
15
But what is interesting, Judge, is in each of these
16
cases, it wasn't just the ops, it wasn't just the people that
17
Martin Hunt felt disrespected 36 that was impacted by his
18
decisions, by his pulling a gun, it was the community that
19
surrounded these people.
20
riddled with bullets.
21
where evidence was found when there's a shootout outside of a
22
Chinese restaurant.
23
It was the neighbors whose houses were
It was the restaurants down the street
The United States recognizes that the defendant will
24
spend of right rest of his life in prison, and we understand
25
that that can do absolutely nothing for these family members or
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1
Arthur Jones or Phillip Drew, whose physical capabilities have
2
been changed forever.
3
life, for this gang warfare that's so high that will prevent
4
them from continuing to do it, until the promise of such a
5
substantial penalty, we can't end the violence in our streets.
6
But until there's a consequence for gang
This case is a tragedy.
This young man is 24 years
7
old, and he will spend the rest of his life in prison for
8
decisions he made coming off of what I'm sure defense counsel
9
will tell you was a tragic youth, a youth without stability,
10
without a male role model.
11
carnage from each of his decisions, this defendant considered --
12
continued to arm himself, gun after gun after gun, and
13
victimized the community around him.
14
nothing in it, can be enough to permit that.
15
But at some point, after seeing the
And no tragic childhood,
Judge, we understand that this sentence today will not
16
make the victims whole, but we hope that it can deter Mr. Hunt
17
and it can deter others who may take part in these types of
18
gangs and this type of gang warfare in our streets.
19
Thank you, sir.
20
THE COURT:
21
and wipe down?
Thank you, Ms. Cross.
If you'll go ahead
Appreciate it.
22
MS. CROSS:
The new normal, Judge.
23
THE COURT:
Yes, it is.
24
All right.
Thank you, Ms. Cross.
25
Mr. Woodward?
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1
MR. WOODWARD:
2
May it please the Court, Counsel.
3
Your Honor, there's not a lot that can be said about
Thank you, Judge.
4
Mr. Hunt's background.
The Court doesn't have a lot of
5
discretion here today.
I've been doing this for a fairly long
6
time, and Mr. Hunt's background, living in cars and being
7
homeless from the time he was four or five years old and
8
everything that's in his letter and in the presentence report,
9
if it's not one -- if it's not the worst I've ever seen, it's
10
one of the worst.
11
The offenses that he was convicted of that Ms. Cross
12
just talked about occurred only weeks after he had turned 18
13
years old.
14
this happened, he was 18.
15
Now, he's 24 as we sit here today, but when all of
And the one thing that they said that I agree with,
16
Your Honor, all of this is a tragedy.
17
that was hurt.
18
people that shot at Mr. Hunt didn't hit him, or Ms. Munn and I
19
would probably have been representing them.
20
Tragedy for everybody
It's a tragedy for Mr. Hunt.
You know, the
And it's interesting, we stand here and we have --
21
there's no way to really put it into words, the pain and anger
22
of the families.
23
on.
24
particularly struck me sort of in a personal way because Domingo
25
Davis's father was shot down in Newport News back in the late
I get it.
The tragedy, how long this has been
This case, like a lot of my cases, but this one
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1
'90s and I represented the man that killed his father.
2
father was a young man at the time.
3
his late teens, early 20s.
4
Domingo Davis, who was the victim in this case, had to be a very
5
young child, maybe a few weeks, few months, I don't know
6
exactly.
7
The truth -- we deal with a legal concept, not a moral concept.
8
As the Court saw, the interplay between all these gang
9
members -- and the jury believed them to enough of a degree to
10
convict Mr. Hunt, I get that.
11
agree on becomes the truth for us.
12
or a moral truth, that's a legal concept.
13
we can all agree on is that the Court -- the laws give the Court
14
essentially no discretion.
15
out that, you know, we need to have sentences that are so severe
16
that will stop this.
17
this a long time -- not that I don't understand what Ms. Cross
18
said -- but that's not -- that's a fool's errand.
19
up more young men, particularly African-American young men, from
20
these neighborhoods for life, and life, and life, and life, and
21
not one thing changes.
22
I don't like feeling helpless.
23
people who do this kind of work are Type-A personalities or
24
take-charge people or like to be in control, and whenever I do
25
this, it just feels helpless.
His
I don't know -- he was in
And you fast-forward, at that point
But our system is a tool.
It's an imperfect tool.
In our system, whatever 12 jurors
Now, that's not a religious
But one thing I think
And I hear Ms. Cross when she cries
And I think, Your Honor, from having done
We've locked
And that's the real tragedy, is that I,
I don't think anyone does.
Most
Because what -- you know,
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1
Mr. Hunt will live with this the rest of his life, these folks
2
back there will live with it the rest of their lives, and the
3
really sad part of it is, Your Honor, is that nothing, nothing
4
will change.
5
And you know, if we ever found a way to really fix it,
6
it would be great, but that's not the case.
7
sometimes we stand before the Court and you have a defendant
8
before you who did something or was convicted of something way
9
less serious as this, and you can see some hope.
10
well, this person will get a sentence and they'll go do this and
11
they will learn something and they will get some education and
12
they'll maybe come out the other end of the system something
13
better.
14
know, these kinds of cases, there is no hope.
And you know,
You can say,
They'll affect some kind of positive change.
And you
15
You know, I think since this happened I've probably
16
either been appointed or retained on five or six more similar
17
cases from the same area of Newport News.
18
shooting at each other, somebody misses, somebody comes back and
19
somebody hits -- and so it really, it, it really, it really is a
20
tragedy, Your Honor.
21
People in the streets
And we're all helpless to fix it.
And I don't mean to be not advocating for my client,
22
but the Court has no discretion in terms of the sentence.
23
mean, when you have a case like this, there's nothing you or me
24
or anybody in this room can do for Mr. Hunt at this point.
25
We'll continue his legal battle, but certainly there's nothing
I
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1
anybody can do for any of the victims, whatever happens.
2
we understand that, Your Honor, and I just wanted to make those
3
comments.
And so
4
I saw what the family members had to say.
5
completely understandable that they would be angry.
6
know, I can only hope for them at some point the stuff that was
7
said about hatred and I would rather roast in hell than forgive
8
you, I hope they can get past that.
9
them do it.
10
of its own kind.
11
It's
And you
I won't be there to help
But that would be a terrible -- but that's a prison
There's a John Prine song that has a line in it that
12
says anger becomes its own prison.
13
peoples' sake that they get past that and hope Mr. Hunt,
14
whatever the future is for him, can find a way to do something
15
productive.
And I hope for those
16
Thank Your Honor.
17
THE COURT:
18
Ms. Munn, did you have anything further?
19
THE DEFENDANT:
20
THE COURT:
21
MR. WOODWARD:
22
Thank you, Mr. Woodward.
No thank you, Judge.
All right.
Do you want me to just wipe down or do
you want me to --
23
THE COURT:
24
need to do from the table now.
25
All right.
I think we'll wipe down.
We'll do what we
Thank you, Counsel.
Paul L. McManus, RMR, FCRR Official Court Reporter
App. 163
.
Case 4:17-cr-00052-MSD-RJK Document 911 Filed 08/19/21 Page 30 of 42 PageID# 12194
.
30
1
Mr. Hunt, you have written me this letter, which I,
2
again, as I said earlier, I read that this morning, but you do
3
have the right to make a statement.
4
want to, this is your last opportunity to do that before
5
sentencing, and you're welcome to do it right there from your
6
seat if you wish to do so.
Don't have you, but if you
Do you wish to make any statement?
7
THE DEFENDANT:
8
THE COURT:
9
Mr. Woodward, is there any reason sentence should not
No, sir.
All right.
10
be imposed at this time?
11
MR. WOODWARD:
12
THE COURT:
Thank you, Mr. Hunt.
No, Your Honor.
All right.
So before sentencing the
13
defendant, I will review some of the statutory sentencing
14
factors which are designed to ensure that the sentence imposed
15
is sufficient but not greater than necessary to comply with the
16
purposes of sentencing.
I don't need to recite them all, but
17
I've considered them all.
And as counsel have stated here,
18
there's little discretion for the Court in this matter to
19
exercise, but I have considered all of the defendant's and the
20
government's arguments with respect to the sentence the Court
21
should impose in the case.
22
trial, like all of you did.
23
And I, of course, sat through the
The Court has considered the nature and circumstances
24
of the offense which the government and the defense have just
25
talked about, this period of time where these shootings took
Paul L. McManus, RMR, FCRR Official Court Reporter
App. 164
.
Case 4:17-cr-00052-MSD-RJK Document 911 Filed 08/19/21 Page 31 of 42 PageID# 12195
.
31
1
place, where these decisions were made that resulted in the
2
taking of life, of lives, and where lives were altered forever,
3
both the lives of the victim's families and those victims that
4
passed and those that remain with lifelong injuries.
5
The Court is also required to consider the defendant's
6
history and circumstances.
7
about that, and they are reviewed, of course, in the presentence
8
report in some detail and in the letter that was provided to the
9
Court, and the Court has certainly reflected on those
10
characteristics and those circumstances and the defendant's
11
criminal history.
12
And Mr. Woodward has talked much
As Mr. Woodward points out, the defendant was newly 18
13
at the time of these events, and sadly the victims that lost
14
their lives were younger than that.
15
there is no one answer, I think, to explain it all.
16
decisions were made, the acts were done, and in our system of
17
justice punishment is forthcoming.
18
And it is a tragedy, and
But the
The Court is required to consider the need for the
19
sentence to reflect the seriousness of the offense.
20
time I have one of these cases and I think about the seriousness
21
of the offense, I not only think about these victims and the
22
lives that are forever changed, but having sat through that
23
trial and heard the testimony about this neighborhood in Newport
24
News where these things occurred, one can't help but reflect on
25
the life in that neighborhood and what it must be like.
And every
And
Paul L. McManus, RMR, FCRR Official Court Reporter
App. 165
.
Case 4:17-cr-00052-MSD-RJK Document 911 Filed 08/19/21 Page 32 of 42 PageID# 12196
.
32
1
that takes you to the next factor, promoting respect for the law
2
in providing a just punishment and affording adequate
3
deterrence.
4
I don't know the degree to which these sentences will
5
deter people from becoming involved in gangs or deter them from
6
engaging in this kind of deadly activity.
7
does.
8
circumstances and decisions that bring us here today, and it's
9
unfortunately something that I'm sure will continue for some
10
time.
I hope it certainly
But as I said earlier, this is a complicated set of
11
The Court has to consider a sentence that protects the
12
public.
13
be like to be in that neighborhood where these things occurred,
14
how challenging that must be.
As I said earlier, my mind often goes to what it must
15
The Court is required to provide defendant with any
16
needed education or treatment also, to consider the kinds of
17
sentences available and the sentencing range established, and
18
the need to avoid unwarranted sentence disparities.
19
considered all those things, of course.
20
little discretion in this case.
21
I've
But the Court has
So having considered all the statutory sentencing
22
factors and the guidelines, the Court is now prepared to impose
23
sentence in this case.
24
Woodward, you all can remain seated right there as the Court
25
does so.
And you can remain there.
Mr. Hunt, Mr.
Paul L. McManus, RMR, FCRR Official Court Reporter
App. 166
.
Case 4:17-cr-00052-MSD-RJK Document 911 Filed 08/19/21 Page 33 of 42 PageID# 12197
.
33
1
Pursuant to the Sentencing Reform Act of 1984, it is
2
the judgment of the Court that the defendant, Martin L. Hunt, is
3
hereby committed to the custody of the United States Bureau of
4
Prisons to be imprisoned for a term of life plus two consecutive
5
life terms, plus 300 months consecutive.
6
life on Count 1, Count 6 and Count 8, and 120 months on
7
Count 12, Count 30 and Count 32; all such sentences on
8
Counts 1, 6, 8, 12, 30 and 32 to be served concurrently.
9
The term consists of
In addition to such concurrent terms, the following
10
terms are imposed to run consecutively to each other and to all
11
other counts:
12
months on Count 13, 120 months on Count 31, and 120 months on
13
Count 33.
14
15
A term of life on Count 7, life on Count 9, 60
Mr. Hunt is remanded to the custody of the United
States Marshal to serve these sentences.
16
If Mr. Hunt is released at some point, upon release
17
from imprisonment, he shall be placed on supervised release for
18
a term of five years.
19
concurrent on each of the following counts:
20
1, 6, 7, 8, 9, 13, 31 and 33; and terms of three years
21
concurrent on each of the follow counts:
This term consists of five years
Counts
Counts 12, 30 and 32.
22
Moreover, if Mr. Hunt is released, within 72 hours of
23
release from custody of the Bureau of Prisons, he shall report
24
in person to the probation office in the district where he is
25
released.
Paul L. McManus, RMR, FCRR Official Court Reporter
App. 167
.
Case 4:17-cr-00052-MSD-RJK Document 911 Filed 08/19/21 Page 34 of 42 PageID# 12198
.
34
1
He shall refrain from any unlawful use of a controlled
2
substance and submit to one drug test within 15 days of
3
commencement on supervised release, and at least two periodic
4
drug tests thereafter, as directed by the probation officer.
5
While on supervision, Mr. Hunt shall not commit
6
another federal, state or local crime, and shall not unlawfully
7
possess a controlled substance, and shall not possess a firearm
8
or a destructive device.
9
Mr. Hunt shall comply with the standard conditions
10
that have been adopted by this court and are incorporated in
11
this judgment.
12
13
In addition, Mr. Hunt shall comply with the following
conditions:
14
He shall obtain a GED diploma or a vocational skill
15
during his period of supervision if not employed full-time.
16
shall participate in a program approved by the probation office
17
for mental health treatment, the costs of the program to be paid
18
by him to the extent he's capable as directed by the probation
19
officer.
20
He
He shall waive all rights of confidentiality regarding
21
mental health treatment in order to allow the release of
22
information to the United States Probation Office and authorize
23
communication between the probation officer and the treatment
24
provider.
25
The Court, of course, does this so that if the
Paul L. McManus, RMR, FCRR Official Court Reporter
App. 168
.
Case 4:17-cr-00052-MSD-RJK Document 911 Filed 08/19/21 Page 35 of 42 PageID# 12199
.
35
1
defendant starts having difficulty in mental health treatment,
2
that the probation officer can be made aware of it and come
3
alongside him to try to be of assistance.
4
Furthermore, the defendant shall not have any contact
5
with any known gang members without prior approval from the
6
probation office, and that's obvious from the discussion we've
7
had here about the gang activities resulting in these charges
8
and convictions.
9
The Court has considered the amount of losses
10
sustained by the victims as a result of this offense, the
11
defendant's zero net worth and the lack of liquid assets, his
12
lifestyle and financial needs as reflected in the presentence
13
report, his earning potential, and the lack of dependents
14
relying on his support.
15
capable of paying a fine, but is capable of making full
16
restitution as mandated by statute.
The Court finds the defendant is not
17
Therefore, he shall pay a special assessment of $100
18
on Count 1, 100 on Count 6, 100 on Count 7, 100 on Count 8, 100
19
on Count 9, 100 on Count 12, 100 on Count 13 and Count 30 and
20
Count 31 and Count 32 and Count 33, which I believe would be a
21
total, Madam Clerk, of $1,100.
22
23
24
25
Restitution shall be paid on Count 6 in the amount of
$5,395.10 to Y.L., there being no objection thereto.
The defendant is jointly and severally liable for
restitution with the following co-defendants:
Paul L. McManus, RMR, FCRR Official Court Reporter
App. 169
.
Case 4:17-cr-00052-MSD-RJK Document 911 Filed 08/19/21 Page 36 of 42 PageID# 12200
.
36
1
Corey Sweetenburg in Case No. 4:17cr52, Xavier Greene
2
in 4:17cr52, and to the extent any restitution is ordered,
3
Deshaun Richardson also in 4:17cr52.
4
No fine is imposed in the case.
5
The special assessment and restitution shall be due in
6
full immediately.
7
assessment and restitution at the beginning of supervision shall
8
be paid by the defendant in installments of not less than fifty
9
dollars a month until paid in full.
10
commence 60 days after supervision begins, if the defendant is
11
released.
12
be subject to penalties for default and delinquency.
13
the Court's order shall prohibit the collection of any judgment
14
or fine by the United States.
Any balance remaining unpaid on the special
Said payments shall
Any special assessment and restitution payments may
Nothing in
15
Since this judgment imposes a period of imprisonment,
16
payment of criminal monetary penalties shall be due during the
17
period of imprisonment.
18
are to be made to the Clerk, U.S. District Court, except those
19
made through the Bureau of Prisons Inmate Financial
20
Responsibility Program.
All criminal monetary penalty payments
21
The defendant shall notify the U.S. Attorney for this
22
district within thirty days of any change of name, residence or
23
mailing address until all fines -- or restitution, excuse me,
24
and costs and special assessments imposed by the judgment are
25
fully paid.
Paul L. McManus, RMR, FCRR Official Court Reporter
App. 170
.
Case 4:17-cr-00052-MSD-RJK Document 911 Filed 08/19/21 Page 37 of 42 PageID# 12201
.
37
1
2
Now the Court would like to make some additional
sentencing comments.
3
The sentence imposed today, of course, is a guideline
4
sentence, but more importantly, it is the appropriate sentence
5
after giving careful consideration to each of the 3553(a)
6
factors, exercising the discretion that the Court is given under
7
the statutes at issue.
8
imprisonment cannot really be in excess of life; however, the
9
applicable firearm statutes call for consecutive sentences for
10
each 924(c) offense and, in this Circuit, for each 924(j)
11
offense.
In practical terms, a term of
12
In considering the proper sentence to impose on these
13
consecutive firearm offenses, this Court considers the conduct
14
underlying such offenses, including the shooting deaths of two
15
victims, as well as principles of deterrence and just
16
punishment.
17
While this Court has determined that, in the context
18
of this case, the statutory mandatory minimum for each of the
19
three 924(c) offenses is sufficient to comply with the purposes
20
set forth in 3553(a), the Court finds that the two 924(j)
21
offenses are vastly aggravated firearm offenses that are far
22
more serious than a typical 924(c) offense, and therefore, on
23
this record, regardless of any statutory minimums or the precise
24
guideline recommendations, the 924(j) offenses require a far
25
more serious sentence than the 10-year terms of imprisonment
Paul L. McManus, RMR, FCRR Official Court Reporter
App. 171
.
Case 4:17-cr-00052-MSD-RJK Document 911 Filed 08/19/21 Page 38 of 42 PageID# 12202
.
38
1
imposed for the two 924(c) offenses involving discharging a
2
firearm.
3
Such finding is consistent with Congress's decision to
4
make 924(j) an aggravated offense with the maximum punishment of
5
death; therefore, regardless of the minimum punishment provided
6
by statute or recommended by the guidelines, the sentence of
7
life for each 924(j) offense is appropriate in this case based
8
on the nature of the gang-motivated murder of Domingo Davis and
9
the collateral murder of Jada Richardson, the 13-year-old victim
10
with no real connection to any gang-related disputes of which
11
the Court is aware.
12
In considering the 3553(a) statutory sentencing
13
factors, the Court has considered the entirety of Mr. Hunt's
14
offense conduct, his personal background, and the sentences
15
required on the other counts of conviction.
16
17
With those additional comments having taken place, the
Court will now discuss Mr. Hunt's appellate rights.
18
Mr. Hunt, you have the right to appeal the jury's
19
verdict, as well as the right to appeal your sentence if you
20
believe that it was illegally or incorrectly imposed.
21
wish to pursue an appeal, you must file a notice of appeal
22
within 14 days from the entry of judgment.
23
the notice of appeal on time, you may lose your right to appeal.
24
You have the right to be assisted by an attorney on appeal.
25
will be appointed for you by the Court if you cannot afford to
If you
If you do not file
One
Paul L. McManus, RMR, FCRR Official Court Reporter
App. 172
.
Case 4:17-cr-00052-MSD-RJK Document 911 Filed 08/19/21 Page 39 of 42 PageID# 12203
.
39
1
hire an attorney.
2
without payment of the costs if you make a written request to do
3
so.
4
there will prepare and file the notice of appeal for you.
You may be permitted to file the appeal
Also, if you make a request of the clerk's office, someone
5
There is a consent order of forfeiture that has been
6
provided to me with respect to a 9mm Glock pistol and related
7
magazines and ammunition, the Glock Model 23 caliber .40 S&W
8
pistol with related magazines and ammunition, and a Taurus
9
caliber .45 pistol and related magazines and ammunition.
10
appears to have been signed by counsel for the government,
11
counsel for the defendant and Mr. Hunt, and therefore I will
12
affix my stamp to it.
13
The clerk has reminded me that we don't have a
14
restitution order, if there was one.
15
there to be one.
16
That
I'm not sure if you wanted
I've ordered it.
MR. WOODWARD:
Your Honor, I'll be glad to sign one if
17
it's prepared and presented to me, but I think the Court ordered
18
it, it doesn't require one.
19
20
THE COURT:
I don't think it does.
I thought maybe --
Madam Clerk, did you think there was going to be one?
21
COURTROOM DEPUTY CLERK:
22
THE COURT:
Okay.
Yes, sir.
I think the clerk may have been
23
under the impression there was one coming.
24
need for that in you all's estimation, that's fine.
25
No need?
But if there's no
All right.
Paul L. McManus, RMR, FCRR Official Court Reporter
App. 173
.
Case 4:17-cr-00052-MSD-RJK Document 911 Filed 08/19/21 Page 40 of 42 PageID# 12204
.
40
1
2
Now the Court is going to make some recommendations in
the case.
3
The Court recommends that the sentence be served as
4
close to Tidewater, Virginia, Hampton Roads, however you wish to
5
say it, as possible, as requested.
6
The Court also is going to recommend that Mr. Hunt be
7
evaluated for mental health and emotional health treatment and
8
that he receive any mental health treatment as needed.
9
Ms. Cross, the defendant was found guilty of 11 counts
10
that were charged in the second superseding indictment, and
11
while the original indictment and the superseding indictment are
12
dismissed right now on the electronic case filing system, I do
13
note they were clerk office dismissals, and so I would be happy
14
to entertain a motion from the government to officially move to
15
dismiss the indictments, these indictments on the record.
16
MS. CROSS:
Judge, we so move to dismiss.
17
THE COURT:
All right.
So they are dismissed as
18
already administratively indicated on the Court's Case
19
Management Electronic Case Filing system.
20
21
All right.
Ms. Cross, was there anything else that I
need to address?
22
MS. CROSS:
Nothing else for the government, Your
24
THE COURT:
Mr. Woodward?
25
MR. WOODWARD:
23
Honor.
No, sir.
Paul L. McManus, RMR, FCRR Official Court Reporter
App. 174
.
Case 4:17-cr-00052-MSD-RJK Document 911 Filed 08/19/21 Page 41 of 42 PageID# 12205
.
41
1
THE COURT:
2
THE DEFENDANT:
3
THE COURT:
Okay.
Ms. Munn?
No, sir.
All right.
Well, I know some people are
4
still with us and some people have left the courtroom, but I
5
certainly do wish the families of the victims well.
6
I wish you well, Mr. Hunt.
And it is a great
7
understatement of the day to say that this was just an immense
8
tragedy.
9
(Whereupon, proceedings concluded at 11:30 a.m.)
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Paul L. McManus, RMR, FCRR Official Court Reporter
App. 175
.
.
42
1
CERTIFICATION
2
3
I certify that the foregoing is a true, complete and
4
correct transcript of the proceedings held in the above-entitled
5
matter.
6
7
__________________________________
8
Paul L. McManus, RMR, FCRR
9
___________
10
Date
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Paul L. McManus, RMR, FCRR Official Court Reporter
App. 176
.
Case 4:17-cr-00052-MSD-RJK Document 914 Filed 08/19/21 Page 1 of 50 PageID# 12384
.
1
1
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
NEWPORT NEWS DIVISION
2
3
4
UNITED STATES OF AMERICA,
5
Plaintiff,
6
v.
7
XAVIER GREENE,
8
Defendant.
)
)
)
)
)
)
)
)
)
Criminal Action No.:
4:17cr52
9
10
TRANSCRIPT OF PROCEEDINGS
(Sentencing)
11
12
Norfolk, Virginia
July 1, 2021
13
14
15
BEFORE:
THE HONORABLE MARK S. DAVIS
United States District Judge
16
17
18
19
20
21
22
Appearances:
OFFICE OF THE UNITED STATES ATTORNEY
By: AMY E. CROSS
Counsel for the United States
LAW OFFICE OF AMY L. AUSTIN
By: AMY LEIGH AUSTIN
-- and -DAVID MICHAEL GOOD, P.C.
By: DAVID MICHAEL GOOD
Counsel for Defendant Greene
23
24
The Defendant appearing in person.
25
Paul L. McManus, RMR, FCRR Official Court Reporter
App. 177
.
Case 4:17-cr-00052-MSD-RJK Document 914 Filed 08/19/21 Page 2 of 50 PageID# 12385
.
2
1
P R O C E E D I N G S
2
3
(Commenced at 10:23 a.m. as follows:)
4
5
COURTROOM DEPUTY CLERK:
6
United States of America v. Xavier Greene.
In Case No.4:17cr52, the
7
Ms. Cross, is the government ready to proceed?
8
MS. CROSS:
9
The government is ready.
Your Honor.
10
THE COURT:
11
COURTROOM DEPUTY CLERK:
Good morning, Ms. Cross.
12
the defendant ready to proceed?
13
MR. GOOD:
14
Good morning,
Mr. Good and Ms. Austin, is
Good morning, Your Honor.
Defense is ready
to proceed.
15
THE COURT:
Good morning, Mr. Good.
16
MS. AUSTIN:
Good morning, Your Honor.
17
THE COURT:
Good morning Ms. Austin.
18
All right.
Madam Clerk, let's go ahead and administer
19
the oath to Mr. Greene.
20
(Defendant placed under oath.)
21
THE COURT:
22
history that brings us here.
23
All right.
So let's review some of the
On December 10, 2019, Mr. Greene was found guilty by a
24
jury of the following eight counts of the second superseding
25
indictment:
Paul L. McManus, RMR, FCRR Official Court Reporter
App. 178
.
Case 4:17-cr-00052-MSD-RJK Document 914 Filed 08/19/21 Page 3 of 50 PageID# 12386
.
3
1
One count of racketeering conspiracy, in violation of
2
Title 18 of the U.S. Code, Section 1962(d); three counts of
3
murder in eight of racketeering activity, in violation of Title
4
18 of the United States Code, Section 1959(a)(1); three counts
5
of using a firearm resulting in death, in violation of Title 18
6
of the U.S. Code, Section 924(c)(1) and j;
7
And one count of attempted murder in aid of
8
racketeering, in violation of Title 18 of the United States
9
code, Section 1959(a)(5).
10
Mr. Greene was acquitted by the jury as to one other
11
count, Count 15, which is a 924(c) firearm possession or
12
discharge count associated with the Solo Mart shooting.
13
The Court has reviewed the presentence report that was
14
prepared in this case on March 9 of 2020, along with the addenda
15
that were prepared on April 10, 2020, July 23rd, 2020,
1
This text is long and has been trimmed here. Open the source document for the complete record.
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.