United States v. Irving

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4744
ANGELO MARCELLUS IRVING,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 02-4745
MARCUS JOHNSON, a/k/a Pep, a/k/a
Little Marcus,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4749
COREY MURCHISON, a/k/a Popeye,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CR-01-304)

Submitted: April 18, 2003

Decided: June 3, 2003
2 UNITED STATES v. IRVING
Before MOTZ, KING, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

COUNSEL

David Lassiter, Jr., JEFFERSON & LASSITER, Richmond, Virginia;
William H. Sooy, Richmond, Virginia; David R. Lett, Richmond, Vir-
ginia, for Appellants. Paul J. McNulty, United States Attorney, Peter
S. Duffey, Assistant United States Attorney, Robert E. Trono, Assis-
tant United States Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

OPINION

PER CURIAM:

Angelo Marcellus Irving and Marcus Johnson were convicted by a
jury of violating the Racketeer Influenced and Corrupt Organizations
Act ("RICO") and conspiracy to distribute crack cocaine. Their co-
defendant, Corey Murchison, was convicted of conspiracy to distrib-
ute crack cocaine. After considering the issues raised on appeal, we
affirm.

I.

First, Irving asserts that the evidence was insufficient to convict
him of the RICO offense, 18 U.S.C. § 1962 (2000), as a member of
the Fulton Hill Hustlers ("FHH"). Irving contends that the Govern-
ment failed to prove that an enterprise existed, that he knowingly par-
 UNITED STATES v. IRVING 3
ticipated in the enterprise, and that he committed the predicate acts of
murder, attempted murder, and conspiracy to distribute crack cocaine.

The substantive RICO statute provides as follows:

It shall be unlawful for any person employed by or associ-
ated with any enterprise engaged in, or the activities of
which affect, interstate or foreign commerce, to conduct or
participate, directly or indirectly, in the conduct of such
enterprise’s affairs through a pattern of racketeering activity
or collection of unlawful debts.

18 U.S.C. § 1962(c). An "enterprise" is a "group of persons associated
together for a common purpose of engaging in a course of conduct,"
which may be proved "by evidence of an ongoing organization, for-
mal or informal, and by evidence that the various associates function
as a continuing unit." United States v. Turkette, 452 U.S. 576, 583
(1981). We have noted that a RICO enterprise is characterized by
"continuity, unity, shared purpose and identifiable structure." United
States v. Fiel, 35 F.3d 997, 1003 (4th Cir. 1994).

After viewing the record in the light most favorable to the Govern-
ment, we find that substantial evidence supports the conclusion that
a racketeering enterprise existed. Although Irving argues that the
members of FHH had no common purpose and each acted for himself,
the Government presented numerous witnesses who testified that the
common purpose of FHH was dealing crack cocaine, a goal that was
pursued on a daily basis for many years. In addition, the Government
presented evidence regarding the supply of cocaine to FHH and the
procedures by which FHH sold cocaine on the streets of Fulton Hill
and supported each other in that regard. Further, the evidence showed
that FHH members committed various robberies, attempted murders,
and murders in order to intimidate rivals, punish traitors, and collect
drug money. This evidence was sufficient for a reasonable factfinder
to conclude that FHH constituted an ongoing organization with a defi-
nite structure and the shared purpose of enriching the members of the
enterprise and preserving the power of the enterprise.

Moreover, the evidence also supports the conclusion that Irving
was associated with FHH. The Government introduced evidence that
4 UNITED STATES v. IRVING
Irving sold cocaine daily with FHH for many years. In addition, the
evidence showed that Irving carried a firearm; that he and Murchison
attempted to murder Vincent Allen who owed them both money for
drugs; that he killed Walter Broaddus, who was from a competing
drug organization, to enhance his position with FHH; and that he and
other members of FHH participated in a revenge-driven shoot-out
with another drug organization. This evidence was sufficient for a
reasonable factfinder to conclude that Irving had an ongoing associa-
tion with FHH.

Finally, concerning the sufficiency of the evidence regarding the
predicate acts, Irving argues that the numerous cooperating witnesses
were not worthy of belief. However, determinations of credibility are
within the sole province of the jury and are not susceptible to judicial
review. United States v. Burgos, 94 F.3d 849, 862-63 (4th Cir. 1996).

II.

Appellants argue that out-of-court statements made by various
FHH members should have been excluded as hearsay. Quincy Burrell
testified that John Fitzgerald and Daco Edwards told him about a turf-
related shoot-out involving Murchison and Johnson and the murder of
Marcus Turner by Johnson and Edwards. Appellants contend that the
district court failed to require that independent evidence establish the
existence of the conspiracy before admitting the statements.

Rule 801(d)(2)(E) provides that statements by a co-conspirator,
made during the course of and in furtherance of the conspiracy, are
not hearsay. Accordingly, when the Government shows by a prepon-
derance of the evidence that a conspiracy existed of which the defen-
dant was a member, and that the co-conspirator’s statements were
made in furtherance of the conspiracy, the statements are admissible.
United States v. Neal, 78 F.3d 901, 904-05 (4th Cir. 1996). To admit
a co-conspirator’s out-of-court statement, the Government must dem-
onstrate the existence of the conspiracy by evidence extrinsic to the
hearsay statements. United States v. Stroupe, 538 F.2d 1063, 1065
(4th Cir. 1976). We review the district court’s decision to admit such
testimony for an abuse of discretion. Neal, 78 F.3d at 905.

Prior to the admission of the statements at issue, Burrell testified
that FHH was a gang which he joined in 1992. He stated that each of
 UNITED STATES v. IRVING 5
the Defendants was a member along with Edwards and Fitzgerald and
that FHH sold crack on a daily basis. He testified regarding FHH
symbols, turf protection, police lookouts, initiations, and enforcement
procedures. This evidence amply supported admission of the co-
conspirators’ statements by a preponderance of the evidence.

However, Appellants contend that Burrell’s testimony was not
extrinsic evidence, as required by the Rule. Appellants’ argument
evinces a misunderstanding of the rule. While corroboration is
required for the admission of co-conspirator statements, direct testi-
mony at trial is extrinsic to the out-of-court statements, even if the
testimony is given by co-conspirators. United States v. Portela, 167
F.3d 687, 703 (1st Cir. 1999). Thus, the district court correctly admit-
ted the disputed statements.

III.

Murchison challenges his firearm enhancement, arguing that he
was unaware and had no reason to conclude that his co-conspirators
used firearms. The district court’s decision that a weapon enhance-
ment applies is a factual finding reviewed for clear error. United
States v. Harris, 128 F.3d 850, 852 (4th Cir. 1997). Here, Vincent
Allen testified at trial that, at a point when he owed FHH money for
crack, Murchison and two other FHH members accosted him, hit him
with a gun Murchison was carrying, and shot at him. We find that the
district court did not err in applying the enhancement in this case.

IV.

For the reasons discussed, we affirm Appellants’ convictions and
sentences. We deny Irving’s motion to stay the case. We dispense
with oral argument, because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED