United States v. Toliver

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-5204

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

GARY LYNN TOLIVER, JR., a/k/a BG, a/k/a Lil Gary, a/k/a
Garry Toliver, Jr.,

Defendant - Appellant.

No. 08-5217

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MIKAL MUSTAFA MIX, a/k/a Stash, a/k/a Dirty Boy, a/k/a
Mikail Mix, a/k/a Man Man,

Defendant - Appellant.

Appeals from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (2:08-cr-00022-JBF-JEB-3; 2:08-cr-00022-JBF-JEB-2)

Argued: May 14, 2010 Decided: July 13, 2010

Before GREGORY, AGEE, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.

ARGUED: Rebecca Sue Colaw, REBECCA S. COLAW, PC, Suffolk,
Virginia; Lawrence H. Woodward, Jr., SHUTTLEWORTH, RULOFF,
SWAIN, HADDAD & MORECOCK, PC, Virginia Beach, Virginia, for
Appellants. Richard Daniel Cooke, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Dana J.
Boente, United States Attorney, Alexandria, Virginia, William D.
Muhr, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2
PER CURIAM:

Gary Toliver (“Toliver”) and Mikal Mix (“Mix”) appeal their

convictions for racketeering and various violent crime, gun, and

drug distribution offenses connected to gang activity by the

Bounty Hunter Bloods (“BHB”) in Norfolk, Virginia. On appeal,

they raise, both jointly and individually, a number of claims

concerning their trial. For the reasons that follow, we affirm

both Toliver and Mix’s convictions in their entirety.

I.

This case concerns Toliver’s and Mix’s participation in the

BHB gang in Norfolk, Virginia. The evidence presented at trial

described both the overall structure of the gang and specific

instances of violent conduct or drug and gun distribution

activity involving the defendants.

A.

The BHB was established in Norfolk in the early 1990s by an

Original Gangster of the BHB in New York, Cody. The BHB has a

formal hierarchical command and authority structure with defined

roles. The BHB controlled several neighborhoods of Norfolk, and

each was called a “chapter.” 1 Each chapter was led by a

1
Norview was chapter 1; Coleman Place was chapter 2; Little
Creek was chapter 3; Ballentine was chapter 4; Poplar Hall was
chapter 5, and University Apartments was chapter 7.

3
different BHB member called a general. The general controlled

all BHB activity in his chapter. Each general, in turn, had

other members working underneath him in his chapter called young

gangsters (“YG”) or little homies.

Both Mix and Toliver had prominent roles in the BHB. Mix,

also known as Stash, Man Man, or Dirty Boy, was one of the

founding members of the gang from Mount Vernon, New York and was

the general of the Ocean View area of Norfolk. Toliver, also

known as BG, was the general of Norview. Antonio Fulford, a

codefendant who pleaded guilty and testified for the

prosecution, was the general of Little Creek. Another

cooperating coconspirator, Marlon Reed, was the leader of the

BHB overall, and all of the generals, including Mix and Toliver,

reported to him.

Individuals can become members of the BHB in three ways.

The most common way is to “shoot a 31” whereby the person

looking to join stands in the middle of five BHB members in a

five-pointed star formation. The current members then beat the

inductee for thirty-one seconds. Individuals can also be

blessed in by current members of the gang. Finally, women,

called rubies, can be “sexed in,” by having sexual intercourse

with five members of the gang. Marlon Reed estimated that at

the time he was arrested along with Mix and Toliver, the BHB had

4
between 300 and 400 members, mostly teenagers but with some

members as young as nine.

Members of the gang from all chapters would meet every two

to three months. During these meetings, the generals would

report what was happening in their chapter, violations of gang

rules would be cured by having the offending member shoot a 31,

and members would be encouraged to “represent their flag” by

letting others know they were part of the BHB. Toliver led most

of these larger meetings, and Mix would also participate.

Within each chapter, the members of the BHB made money

through home invasions, robberies, and sales of narcotics.

Additionally, members were expected to “put in work,” to do an

act of violence, such as a robbery or shooting, to represent the

BHB. Rubies often put in work by attracting a robbery victim

and leading him to a group of waiting gang members. If a YG or

little homie refused to put in work, they would be disciplined

by having to shoot a 31 again. If members seriously dishonored

the gang, they could be killed.

The BHB has its own language and lingo that members use

between themselves. For example, members avoid using words that

begin with the letter “C” and instead change it to a “B” because

the letter “C” is associated with the Crips, a rival gang. The

BHB greet each other with the phrase “what’s poppin” or with the

call “blllaat.” Additionally, members are required to learn

5
oaths to be sworn to the gang. Generals would test YGs or

little homies on their knowledge of the gang by walking up to

them and “G Checking” them, asking them a question about gang

protocol, which also served to make sure that someone was not

“false flagging” and pretending to be a member of the gang. The

BHB’s symbol is a five-pointed star. Each point on the star has

a meaning: body, unity, love, lust, and soul. The BHB wear red

as an identifying color and put a red bandana in their right

back pocket. They use hand symbols such as “ck,” meaning Crip

killer, and a five-pointed star. All of these identifying

characteristics serve to brand the gang, both within its

membership and to rival gangs and the public.

B.

In addition to being part of the overall command structure

of the BHB, Toliver and Mix were involved in several violent

incidents perpetrated by BHB members between March 2004 and

November 2007.

1.

On March 5, 2004, a dance for teenagers was held at the VFW

in Ocean View. Many members of the BHB and Crips attended.

Tension between the gang members rose during the dance, so the

attendees were sent outside by the organizers, and the dance

ended. Once outside, a fight started, and a member of the BHB

called Mix and told him to bring guns to the VFW. Mix then

6
drove to the VFW and passed out four or five guns to the BHB

members who were there. They started shooting into the crowd

and one girl, who was uninvolved in the fight, was grazed in the

head, requiring emergency care.

2.

On May 1, 2004, Samuel Oteng and Harold Gladden, two naval

officers, rented a room at the Tides Inn in Norfolk, Virginia so

that they could hold a going away party. Upon checking in, they

noticed some women at the hotel and greeted them. The women,

unbeknownst to the sailors, were members of the BHB. Oteng and

Gladden invited the women to come to the party later that night,

but they never showed. After the party had broken up around

2:00 a.m. and the guests had left, Gladden and Oteng were

confronted by three men carrying guns outside their hotel room.

One of the men grabbed Oteng’s gold chain off his neck and then

attempted to force him into the room. To avoid being trapped in

the room with armed individuals, Oteng offered to let the men

search his car for money, and the men took his keys and drove

the car away. Oteng ran after them to see where the men were

taking the car. As he was doing so, a shot was fired. One of

the female members of the BHB present at the hotel that night

testified that Mix fired the shot and was one of the men who

threatened the sailors that evening.

7
 3.

In April 2006, Marlon Reed, the leader of the BHB, heard

that Rich Porter, a drug dealer, accused him of false flagging.

In response, Reed ordered Toliver to get Porter and bring him to

Reed’s house in Coleman Place. Toliver drove to Porter’s house,

showed him a 9mm handgun, and demanded he get in the car.

Toliver then drove Porter to Reed’s house where Reed

interrogated him about the rumors he was spreading. Ultimately,

Reed let Porter go.

4.

In spring 2007, two men broke into Andre Parham’s house and

demanded money from him. Parham was a drug dealer with whom the

BHB did business. The men hit Parham and burned him on his back

with an iron before departing. Later that evening, the men came

back and started pounding on his door. Parham responded by

shooting through the door. On August 20, 2007, Parham was again

the victim of a home invasion. He became unconscious after the

men entered his home and beat him. He was again burned with an

iron and cut on his arm. Marlon Reed testified that Toliver was

present at that home invasion with other members of the BHB and

stole heroin and guns.

5.

In July 2007, Timothy Minter, Jamal Ashe, and James

Robertson, Minter’s cousin, were all spending time together in

8
Norfolk where Minter and Ashe were stationed with the Navy. One

night, after dinner, they met two women in front of the pizza

parlor where they ate. The women did not have a car, so they

offered to drive the women home. Robertson asked for their

phone numbers, but the women preferred to take his number from

him.

Later, on July 27th, Robertson received a call from one of

the women inviting him to hang out. He accepted and drove with

Minter and Ashe to 16th Bay in Norfolk where the girls had

indicated they would be. When Robertson, Minter, and Ashe

pulled into the parking lot, they saw seven girls as well as one

man.

After Robertson, Minter, and Ashe exited the car, and began

speaking with the group, ten men ran out from an alley and

approached them holding guns. The men demanded money and

started beating Robertson, Minter, and Ashe and stripped off

their clothes. One of the women began to get nervous because of

the level of beating, and she shouted “police” to get the

attackers to scatter. Ashe and Minter were able to run away to

safety, but Robertson was already unconscious. Minter and Ashe

both suffered significant contusions and abrasions from the

beating. Robertson never regained consciousness and died of

acute brain injury due to blunt force trauma from being beaten

in the head with a shotgun.

9
 Through investigation and canvassing after the incident,

the police found the vehicles involved in the robbery and murder

and tracked them to a hotel room. There, they arrested six

suspects, all members of the BHB, including the women who called

Robertson. In interviews with the suspects, the police

determined that Curtis Newby, also known as CK or Crip Killer,

was the individual who had beaten Robertson. Skylar Hayward, a

member of the BHB and one of the girls Robertson met earlier,

stated that Curtis Newby, also a BHB member, told the girls to

call Robertson because he wanted to rob him.

When Marlon Reed saw a report on television about the

murder, he called Mix and told him what had happened. Mix told

him that CK had beaten a man to death with a shotgun that Mix

owned. He said that he was going to take CK to New York to hide

out with Cody in Mount Vernon.

6.

Also on July 27, 2007, Marlon Reed accompanied Toliver and

several other BHB members to Club Reign on Granby Street in

Norfolk. After the club let out, Reed, along with the others,

passed out copies of a CD he had made of rap about the BHB to

patrons leaving the club. When a car occupied by two men

refused to take a CD, the situation escalated, ending when

Antonio Fulford shot both of the occupants of the car as they

attempted to flee, one in the leg, one in the hand. To leave

10
the scene of the shooting, all of the BHB members jumped in

their car with Toliver driving. Responding to reports that a

white truck had fled the scene, a Norfolk police officer

attempted to pull over the car that Toliver was driving.

Instead of stopping, Toliver fled, and the resulting high speed

chase ended when he crashed on an exit ramp.

7.

In October 2007, Gregory Lee, a gun and drug dealer with

whom the BHB did business, had an argument with Toliver after

Toliver shorted Lee $400 on a gun deal. At that time, Lee

called Toliver a young punk. On November 15, 2007, at 9:00

a.m., Lee heard pounding on his door and someone yell “DEA

search warrant.” When he opened the door, two men ran in the

house, pistol whipped him, handcuffed him, duct-taped him to the

toilet, and hit him with a baseball bat. The men also stole

$8,162 in cash from him. The men told Lee “we may be wearing

black, but we are red inside,” which he took to mean that they

were BHB members. They also told Lee that “the young punk sent

us.”

C.

Mix and Toliver were also involved in a wide variety of

drug trafficking activity. Because the instances of such

conduct involved a large number of witnesses and occasions, we

summarize the evidence in bullet form.

11
• 2002 - Angel Hines begins buying cocaine from Mix,
purchasing eighteen ounces from him about every two
weeks for two years.

• 2002 – Joyce Wright observes Mix with a quarter ounce
of cocaine and a gun in his car.

• March 2003 – Marlon Reed was supposed to sell Mix
seven ounces of crack, and Mix wanted to trade for
three guns. Reed would not accept the deal so Mix
paid him $250 for the seven ounces.

• Spring 2004 – Mix gives Marlon Reed $5,500 to buy half
a kilo of cocaine.

• January 2006 – Gregory Lee starts buying heroin from
Toliver and buys an increasing amount from him daily
until November 2007.

• 2006 – Reed supplies Mix with 2.25 ounces of crack
twice a week for several months.

• 2006 – Reed supplies Toliver with nine ounces of
cocaine every two days.

• Mid-2006 – Toliver asks Gregory Lee to purchase
firearms for him, and Lee sells him twenty firearms
total.

• November 2006 – Jamal Ruiz starts buying cocaine from
Toliver and continues to purchase it through August
2007.

• January 2007 – Toliver buys 3.5 grams of heroin from
Lahmel Evans and shows him a handgun while doing so.

• Spring 2007 – Toliver gives Reed $75,000 to purchase
three kilos of cocaine.

• Spring 2007 – Gregory Lee receivs raw heroin from
Toliver and works to put it in gel caps.

• July 4, 2007 – Skylar Hayward buys marijuana from
Toliver and sees him in possession of crack.

12
 • October 2007 – Gregory Lee buys a quarter ounce of
crack from Toliver, who carried a gun with him.

D.

In February 2008, Toliver and Mix, along with Marlon Reed,

and Antonio Fulford, were indicted for the above-described

criminal activity. On May 7, 2008, the government filed a

seventy-six count superseding indictment. While Fulford and

Reed chose to plead guilty, Mix and Toliver proceeded to jury

trial, which began on August 18, 2008, and continued for eight

days. After the government had concluded its case-in-chief, it

requested a dismissal of several counts of the indictment. 2 The

remaining counts were sent to the jury, which deliberated for

three days before arriving at a verdict. The jury found Toliver

guilty of all counts for which he was tried. The jury found Mix

guilty of all of the offenses except as to Counts Four

(possession of a firearm in furtherance of a violent crime),

Five (assault with a dangerous weapon in aid of racketeering

activity), Six (assault with a dangerous weapon in aid of

racketeering activity) and Seven (possession of a firearm in

furtherance of a violent crime), which related to the incidents

at the VFW dance and the Tides Inn. At sentencing, Toliver was

2
Counts 23, 24, 30-36, 39-42, 44, 49, 50-53, and 55-57 were
dismissed.

13
sentenced to life plus 2,484 months. Mix was sentenced to life

plus 480 months. This timely appeal followed.

II.

On appeal, Toliver and Mix raise issues concerning joinder,

jury selection, photographic evidence of Toliver’s tattoos, and

sufficiency of the evidence. We address each in turn and find

all of their arguments unavailing.

A.

Toliver first raises the issue of prejudicial joinder. He

argues that he was prejudiced by his joint trial with Mix and

Elizabeth Horne 3 because the allegations against the other

defendants necessarily “spilled over” in the minds of the jury

considering his guilt and influenced their verdict.

Additionally, Toliver argues that the sheer volume of the

evidence, including the murder Mix was charged with, confused

the jury and prejudiced them against him. We find, however,

that no specific trial right of Toliver’s was impaired by the

joinder, and thus the defendants were properly joined.

3
Horne was tried on several specific counts related to the
home invasion of Andre Parham, her brother. She was acquitted
of all charges.

14
 1.

The district court’s denial of a motion for severance is

reviewed for abuse of discretion. United States v. Jones, 356

F.3d 529, 535 (4th Cir. 2004). This Court will reverse only if

“the trial court’s decision to deny severance deprives the

defendants of a fair trial and results in a miscarriage of

justice.” United States v. Harris, 498 F.3d 278, 291 (4th Cir.

2007) (citation omitted).

2.

Federal Rule of Criminal Procedure 8 governs joinder of

defendants in the same action. It provides that “the indictment

or information may charge 2 or more defendants if they are

alleged to have participated in the same act or transaction, or

in the same series of acts or transactions, constituting an

offense or offenses.” Fed. R. Crim. P. 8(b). Even if properly

joined in the indictment, the defendants must be tried

separately when the joinder “appears to prejudice a defendant or

the government.” Fed. R. Crim. P. 14. Therefore, if a

defendant moves to sever his trial, he must show the requisite

prejudice. The Supreme Court has held that to show prejudice as

a result of joinder, the defendant must show that “there is a

serious risk that a joint trial would compromise a specific

trial right of one of the defendants, or prevent the jury from

making a reliable judgment about guilt or innocence.” Zafiro v.

15
United States, 506 U.S. 534, 539 (1993) (emphasis added). Thus,

“a defendant is not entitled to severance merely because

separate trials would more likely result in acquittal, or

because the evidence against one defendant is not as strong as

that against the other.” United States v. Strickland, 245 F.3d

368, 384 (4th Cir. 2001) (citation and internal quotation marks

omitted).

3.

This Court has never held that jury confusion requires

severance of defendants properly joined in an indictment. See

United States v. Mandel, 591 F.2d 1347, 1371 (4th Cir. 1979)

(“Severance will not be granted when the claim is based on the

disparity of evidence adduced against individual defendants

without a strong showing of prejudice.”). Indeed, this Court

has enforced the Supreme Court’s decision in Zafiro, that the

defendant must show a specific trial right that would be

infringed by the joinder, and has found no abuse of discretion

when the defendant merely pleads jury confusion between

defendants.

Taking into account how this precedent weighs against his

claim, Toliver intimates that joinder with Mix would violate

Bruton v. United States, 391 U.S. 123, 129-31 (1968), which held

that admission of the confession of a defendant at trial was

prejudicial error when that confession implicated the

16
codefendant. However, Bruton and the Sixth Amendment do not

support such an expansive argument. General concerns about

prejudice when being tried with another defendant who has

committed bad acts does not rise to the level of a Bruton

problem when those acts do not implicate the defendant. Here,

Mix’s connection with the robbery and murder of James Robertson

did nothing to implicate Toliver because he was not mentioned at

all in connection with the incident.

Therefore, because we do not find, and Toliver does not

argue, any specific trial right of his which was impaired by the

joinder, the district court did not abuse its discretion in

denying his motion for severance.

B.

Toliver and Mix jointly raise the second issue on appeal

concerning the dismissal of empanelled jurors. In this case, as

described more fully below, two African-American female jurors

were dismissed after the jury had been empanelled because of

disqualifying conflicts they disclosed after they had been sworn

in. The defendants argue that the district court erred in

denying their motion for a mistrial because they were denied the

use of voir dire by the jurors’ incomplete answers.

Additionally, they argue that striking two jurors at the

beginning of the trial reinforced the “pervasive ambiance of

fear” surrounding the trial and prejudiced them. We hold that

17
the district court properly dismissed the jurors and replaced

them with substitutes that had been empanelled for that specific

purpose.

1.

As the defendants contemporaneously objected to the

dismissal of the two jurors and substitution of the alternates,

the district court’s decision is reviewed for abuse of

discretion. United States v. Hayden, 85 F.3d 153, 156-57 (4th

Cir. 1996). To establish that a new trial is warranted, the

objecting party must establish first that the substitution was

in error, and second that prejudice resulted from the

substitution. United States v. Nelson, 102 F.3d 1344, 1349 (4th

Cir. 1996). To determine prejudice, we have held that the

district court should consider three general factors: (1) the

closeness of the case; (2) the centrality of the issue affected

by the error; and (3) the steps taken by the district court to

mitigate that error. United States v. Callanan, 450 F.2d 145,

151 (4th Cir. 1971).

2.

On the first day of the trial, jury selection began in the

morning and continued until approximately 2:00 p.m., at which

time the jury with two alternates was empanelled and sworn in.

The court then recessed for lunch. One juror, during the lunch

hour, notified the deputy that she recognized Toliver because

18
his uncle attended her church and she went to school with his

father. When questioned by the court, she stated that she had

not said anything earlier because it did not occur to her that

it was the same Toliver, and she could not see him. She was

then dismissed for cause after she indicated that she could not

be fair because she felt “empathy” for the defendant. The

dismissed juror was an African-American woman; her replacement

was a white man.

After the first day of trial was completed and before the

second day began, the court received a note from another female

African-American juror. The juror stated that she found out

from her brother the night before that he was assaulted in New

York by a gang six years earlier, and she could no longer be

impartial because remembering the incident brought up strong

emotions. When questioned, she told the court that she had not

talked to her family about the case, but her relatives figured

out which jury she was on, and her brother called her from New

York and told her about the incident. She also was dismissed

and replaced with a white male juror.

The defendants moved for a mistrial on the basis of the

substitution of the jurors for members of another gender and

race. They also moved for a mistrial on the suspicion of juror

intimidation given the circumstances. The court found that

19
there was no intimidation involved and that substitution was

proper at this stage of the proceedings.

3.

Substitution of jurors at trial is regulated by Federal

Rule of Criminal Procedure 24(c). It provides that alternate

jurors are to “replace any jurors who are unable to perform or

who are disqualified from performing their duties.” Fed. R

Crim. P. 24(c)(1). A court replacing an empanelled juror with

an alternate must have both a legally relevant reason and a

factual basis for doing so. Hayden, 85 F.3d at 157. The court

must also consider reasonable alternatives available to it

instead of dismissing the juror and substituting an alternate,

given the importance attached to keeping the original jury

together if possible. Nelson, 102 F.3d at 1349.

However, this Court has concluded that the “right to have

the selected jury render the verdict is not absolute and is

subject to the inevitable vagaries of the many trial

participants’ complex lives.” Id. at 1350. Thus, both in

Hayden and Nelson, we affirmed a district court’s decision to

dismiss jurors after jeopardy had already attached. In Hayden,

the court dismissed a juror when a government witness, after he

testified, alerted the court that he and the juror knew each

other. Although the jurors had been questioned during voir dire

about whether they knew any of the witnesses, the juror did not

20
recognize the witness’s name because he only knew him by a

nickname. The court dismissed the juror, and the defendant

objected on the grounds that the juror dismissed was the only

African-American on the jury. Hayden, 85 F.3d at 156-57. This

Court held that the dismissal was proper because the juror was

biased, and the district judge explained the dismissal to the

jury. Id.

Additionally, in Nelson, the district court dismissed two

jurors after the trial had begun because they had previously-set

travel plans during the trial. The district court considered

other alternatives, such as letting the jurors deliberate for a

day and then continuing the trial during the period of the

jurors’ vacations, but concluded that it was most important to

have the jury deliberate on consecutive days and not to feel

rushed in their verdict. Nelson, 102 F.3d at 1349. The

defendant objected and argued that because the two jurors who

were dismissed were African-American and were replaced with

white jurors, a heightened standard for replacing jurors should

be employed. We held, however, that “[i]n the absence of any

evidence or allegation that the court acted because of race in

replacing jurors with alternates, we find no basis to conclude

that the court’s discretion should be exercised differently when

it is considering for racially neutral reasons the replacement

of black jurors with white alternates.” Id. at 1350.

21
 4.

Despite our precedent in Nelson and Hayden, Toliver and Mix

argue that this case is distinct because the conflict did not

arise after the trial had begun, but rather existed before the

jury was even empanelled. They thus argue that they were denied

voir dire.

However, the district court certainly had legal cause and a

factual basis for dismissing the jurors as required by our

precedent. It is without question that an outright statement by

a juror that he cannot be impartial is a legally relevant reason

for dismissing him. United States v. Capers, 61 F.3d 1100, 1105

(4th Cir. 1995). Further, the facts in this case do not support

a departure from this Court’s precedent which held that the same

level of scrutiny should be applied, no matter the race of the

dismissed juror. Indeed, in Hayden, the juror did not

immediately recognize the name of a witness, so it was only

after the trial had begun that the conflict was apparent. We

held that dismissal of the juror and replacement with a white

alternate was proper when there was a valid basis for removing

the biased juror. Thus, we believe that Hayden controls the

outcome of this case.

Additionally, this case is distinguishable from United

States v. Rucker, 557 F.2d 1046 (4th Cir. 1977), the case relied

upon by the defendants for their voir dire argument. In that

22
case, two jurors did not fully answer a question on their jury

questionnaire as to whether any mental or physical impairment

would prevent them from serving on the jury. The defendant

requested that the court question the jurors on their incomplete

answers, and the judge denied that request. We held that when

presented with a potential question of whether a venireman is

fit to serve on the jury, it is reversible error for the

district court to fail to question the juror, as it denies the

defendant the power of voir dire. Id. at 1047. This case has

little in common with Rucker, however, because voir dire of the

jurors here was complete. Indeed, the jurors were already

qualified in this case and empanelled. Voir dire rights only

exist in the pre-qualification stage of the trial, and the

dismissals here demonstrated no bias by the district court. In

fact the district court had no choice but to dismiss the jurors

here when they stated that they could no longer be impartial.

Finally, it bears mentioning that while the defendants

allege that there was a “pervasive ambiance of fear” surrounding

the trial, there is no evidence in the record as to any

intimidation in the case. 4 Therefore, the district court did not

4
The defendants reference a newspaper article concerning
juror intimidation in the case, but that article is not part of
the record and the district court made no findings about
intimidation.

23
abuse its discretion in denying the defendants’ motion for a

mistrial and properly dismissed the two impartial jurors.

C.

The third issue on appeal is raised by Toliver and concerns

photographic evidence of his tattoos which was admitted for the

purpose of showing that he was a member of the BHB. Toliver

argues that the admission of that evidence violated the Fifth

and Sixth Amendments. We find each of these arguments without

merit.

1.

Evidentiary rulings of the district court are reviewed for

abuse of discretion if the defendant preserves his objection at

trial. United States v. Basham, 561 F.3d 302, 325 (4th Cir.

2009). When a district court commits an error of law, it has

abused its discretion. Id. at 326. If a defendant does not

make a contemporaneous objection, the admission of such evidence

will be reviewed for plain error. This Court will only notice

the error if the defendant can show (1) an error occurred, (2)

the error was plain, (3) the error affected his substantial

rights, and (4) the error “seriously affect[s] the fairness,

integrity, or public reputation of judicial proceedings.”

United States v. Olano, 507 U.S. 725, 736 (1993) (quoting United

States v. Atkinson, 297 U.S. 157, 160 (1936)) (internal

quotation marks omitted).

24
 2.

On February 12, 2008, four days after his arrest, Toliver

was required to allow the police to photograph his numerous

tattoos. Those photographs were admitted into evidence, not for

identification purposes, but rather as substantive evidence of

his affiliation with the BHB. In particular, these photographs

showed the following tattoos: the capital letters B.H.B. on the

right side of his neck; the letter B with a five pointed crown

on it on his right shoulder; the word GARRY burned into his

flesh to form a scar; the words “known by many, loved by few,

respected by all” on his leg; the word LOVE on his right arm

with the word LOYALTY on his left; and the word WAR on his right

hand with the word VIEW on his left.

Each of the photographs was authenticated by the officer

who took the pictures, State Police Special Agent Smith, a

member of the drug enforcement unit. The government further

offered Special Agent Smith as an expert, and he was qualified

as such, in the area of the symbols, colors, customs, and

protocols of the BHB. After the picture of each tattoo was

authenticated by Special Agent Smith, the government asked him

what meaning the tattoo had for the BHB. Special Agent Smith

responded, for example, that the LOVE and LOYALTY tattoos on

Toliver’s arms were two of the five prongs of the BHB creed, and

the five pointed crown over the B stood for the five-pointed

25
star that was the symbol of the Bloods. Special Agent Smith’s

analysis of the meaning of each tattoo was based on his

specialized training on the BHB gang.

3.

Toliver’s first argument concerning the photographs of his

tattoos is that compelling him to be photographed violated his

Fifth Amendment privilege against self-incrimination. We,

however, find that Toliver’s tattoos are a physical trait,

similar to his voice or handwriting, and therefore do not

constitute testimony within the meaning of the Fifth Amendment.

The Fifth Amendment provides that no person “shall be

compelled in any criminal case to be a witness against himself.”

U.S. Const. amend. V. In general, the Fifth Amendment protects

the accused from compelled verbal statements, but can also apply

to compelled physical acts which constitute communications. It

is well settled, however, that the protections of the Fifth

Amendment do not apply to physical characteristics such as the

giving of a blood sample, voice sample, or handwriting exemplar.

Pennsylvania v. Muniz, 496 U.S. 582, 595-98 (1990); United

States v. Dionisio, 410 U.S. 1, 7 (1973); Gilbert v. California,

388 U.S. 263, 266-67 (1967). The key distinction as to whether

the Fifth Amendment applies is whether the incriminating

communications, verbal or physical, are testimonial in nature.

United States v. Hubbell, 530 U.S. 27, 34 (2000).

26
 Toliver likens this case to the situation in Hubbell where

the Supreme Court held that the mere act of producing documents,

in some cases, may be incriminating. Id. at 36. In that case,

the production itself communicated a “statement[] of fact”; it

proved that the documents existed, were authentic, and were in

the custody of the producer. Id. at 36 (citation and internal

quotation marks omitted). There, the Supreme Court held that

the physical production was a violation of the Fifth Amendment

because the preparation of the produced documents was the only

means through which the government obtained the evidence which

led to the indictment. Id. at 42-43.

This case, however, is more akin to the physical trait

cases. Tattoos which are openly visible on the body are

physical traits, as are voice, appearance, and handwriting. See

United States v. Bay, 762 F.2d 1314, 1315-16 (9th Cir. 1984)

(holding that a defendant need not take the stand to be able to

show the jury the tattoos on his hands which were an openly

visible physical characteristic). Cf. United States v.

Williams, 461 F.3d 441, 446-47 (4th Cir. 2006) (holding that a

demonstration by the defendant that he could not physically wear

the fanny pack as alleged by the police is not testimonial

evidence). Here, except for the GARRY scar tattoo, the location

of which is unknown, it is clear that all of Toliver’s tattoos

were openly visible on his body. Indeed, most of them,

27
including BHB on his neck, WAR and VIEW on his hands, the slogan

on his leg, and LOVE and LOYALTY on his arms, were easily

visible when he was wearing a tee-shirt. Only the B with the

five point crown would have been covered up, and it would become

easily visible were he to wear a tank top or take off his shirt.

Thus, though the tattoos incriminated him because he had branded

BHB slogans and symbols all over his body, they were an open

physical characteristic outside the protections of the Fifth

Amendment. Unlike in Hubbell, here the act of production was

nothing more than merely allowing a cursory examination of

Toliver’s body as opposed to painstakingly combing through

records in order to deliver the government its case.

Therefore, we find no merit to Toliver’s Fifth Amendment

challenge.

4.

Toliver’s second argument concerning his tattoos is that

Special Agent Smith’s testimony violated the Confrontation

Clause of the Sixth Amendment. He contends that Special Agent

Smith based his expert opinion on testimonial statements by

other gang members, thus importing those testimonial statements

into the trial without giving him the opportunity to cross-

examine the declarants. However, our precedent mandates the

conclusion that Special Agent Smith’s testimony was not a

violation of the Sixth Amendment.

28
 The question of when expert testimony violates the

Confrontation Clause is well-settled in the Fourth Circuit. As

we recently stated: “An expert witness’s reliance on evidence

that Crawford would bar if offered directly only becomes a

problem where the witness is used as little more than a conduit

or transmitter for testimonial hearsay, rather than as a true

expert whose considered opinion sheds light on some specialized

factual situation.” United States v. Johnson, 587 F.3d 625, 635

(4th Cir. 2009). If, on the other hand, the expert is “applying

his training and experience to the sources before him and

reaching an independent judgment, there will typically be no

Crawford problem. The expert’s opinion will be an original

product that can be tested through cross-examination.” Id. In

Johnson, this Court held that when experts testified as to the

meaning behind intercepted phone calls concerning the sale of

narcotics, their testimony did not violate the Confrontation

Clause because the experts used their own considered judgments

along with their training and information from informants. Id.

at 636.

Here, although Toliver alleges that Special Agent Smith

relied on testimonial statements by gang members, there is no

such evidence in the record. Rather, the only evidence is that

Special Agent Smith relied on his formal training to interpret

the tattoos. Furthermore, even if he had relied on such

29
testimonial statements, Special Agent Smith’s testimony was

certainly more than a parroting of the statements of others.

Instead, he considered the tattoos on Toliver’s body and offered

his independent opinion as to what each meant. Thus, his

testimony poses no problem under the Confrontation Clause.

5.

Toliver’s final argument concerning the admission of the

testimony and photos of his tattoos is that they violated both

Federal Rule of Evidence 404(b) and the Due Process Clause of

the Constitution because they constituted character evidence.

He argues that because the photographs were not introduced for

identification purposes, they necessarily had the purpose of

convincing the jury that Toliver was a bad person, predisposed

to participating in the crimes alleged. 5 We find no violation of

the Due Process Clause because evidence of the tattoos was

properly admitted as evidence of his participation in the BHB,

an element of the crime with which he was charged.

Rule 404 provides that “evidence of a person’s character or

trait of character is not admissible for the purpose of proving

action in conformity therewith on a particular occasion.” Fed.

5
Toliver also argues that the tattoos were used as improper
impeachment evidence, but that argument certainly must fail
because the evidence was introduced during the prosecution’s
case-in-chief, and he never testified.

30
R. Evid. 404(a). That same evidence may, however, be used for

purposes other than showing the defendant’s character, such as

motive, intent, or identification, so long as the probative

value of the evidence is not substantially outweighed by the

danger of unfair prejudice to the defendant. Fed. R. Evid.

404(b); Fed. R. Evid. 403.

Toliver was charged under the RICO statute, and thus the

government was required to prove that he was “employed by or

associated with any enterprise” affecting its purpose through

racketeering activity. 18 U.S.C. § 1962(c) (2006) (emphasis

added). The Supreme Court has held that an “enterprise” under

the statute includes “a group of persons associated together for

a common purpose of engaging in a course of conduct.” United

States v. Turkette, 452 U.S. 576, 583 (1981); see also Boyle v.

United States, 129 S. Ct. 2237, 2245-46 (2009) (holding that an

enterprise under RICO need not have a business-like structure

and can have a rather informal organization). For an individual

to be convicted of a RICO offense, therefore, the government

must prove both that an enterprise exists and that the defendant

participated in the enterprise through racketeering activity.

The enterprise alleged in this case was the BHB, a criminal

gang dedicated to the sale of narcotics and pecuniary gain

through robberies and home invasions. The evidence offered by

the government regarding how individuals were inducted into the

31
gang, its hierarchical structure, and the type of racketeering

activity engaged in by its members was offered as proof of the

existence of the enterprise. Thus, the government was required

to prove that Toliver participated in the BHB and its

racketeering activities. Given that the government was required

to show Toliver’s membership in the BHB as one of the elements

of the substantive crime, the presence of the gang tattoos all

over his body tended to show Toliver was a member, and the

evidence was properly admitted to show that membership.

Additionally, this Court has held that “the Rule 404(b)

inquiry applies only to evidence of other acts that are

‘extrinsic to the one charged.’” Basham, 561 F.3d 302, 326 (4th

Cir. 2009) (quoting United States v. Chin, 83 F.3d 83, 87 (4th

Cir. 1996)). “Evidence of uncharged conduct is not ‘other

crimes’ evidence subject to Rule 404 if the uncharged conduct

‘arose out of the same series of transactions as the charged

offense, or if [evidence of the uncharged conduct] is necessary

to complete the story of the crime on trial.’” United States v.

Siegel, 536 F.3d 306, 316 (4th Cir. 2008) (quoting United States

v. Kennedy, 32 F.3d 876, 885 (4th Cir. 1994)). Therefore, even

if Toliver’s tattoos were considered evidence “extrinsic” to the

charged crime of RICO, the photos would be admissible because

the fact that Toliver had branded himself with BHB symbols

32
arises out of the same series of transactions, namely

participation in a criminal enterprise, the BHB.

Thus, each of Toliver’s challenges to the photographs and

testimony concerning his tattoos must fail.

D.

The final issue raised by Mix and Toliver on appeal

concerns sufficiency of the evidence. They both challenge their

various drug and gun convictions, and Mix individually

challenges his convictions for assault with a deadly weapon in

aid of racketeering and accessory after the fact. We find that

there was sufficient evidence such that a reasonable jury could

have found all of the essential elements of the crimes charged,

and affirm their convictions.

1.

In reviewing the evidence for sufficiency, this Court must

view the evidence in the light most favorable to the government,

drawing all inferences in the government’s favor, and must

affirm the verdict if any rational trier of fact could have

found the essential elements of the crime charged beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319

(1979); United States v. Stewart, 256 F.3d 231, 249 (4th Cir.

2001) (“In evaluating the sufficiency of the evidence, the jury

verdict must be upheld if there exists substantial evidence,

including circumstantial and direct evidence, to support the

33
verdict, viewing the evidence in the light most favorable to the

government.”).

2.

Toliver and Mix jointly raise a sufficiency of the evidence

challenge to their various drug and gun convictions. Their main

contention is that given the complete lack of any physical

evidence tying them to the crimes, in that no drugs or guns were

introduced into evidence, it would be unconstitutional to uphold

their sentences. However, the testimony at trial supports their

convictions, and we affirm. 6

Given the deference shown to the jury’s verdict upon

appeal, we have held that the uncorroborated testimony of a

single witness may be sufficient to uphold the conviction, even

if that witness has credibility problems. United States v.

Wilson, 115 F.3d 1185, 1190 (4th Cir. 1997) (holding that the

uncorroborated testimony of an informant may be sufficient to

sustain a conviction); United States v. Baker, 985 F.2d 1248,

1255 (4th Cir. 1993) (uncorroborated testimony of an accomplice

6
We are mindful of the defendants’ argument that “Toliver
and Mix were sentenced to the equivalent of several life terms
based on the vague and unreliable testimony . . . [of] snitches
and convicted felons seeking to feather their nest[s] for
sentencing reductions or to stay out of jail entirely due to
immunity agreements,” yet we decline to reverse a jury verdict
which is in fact supported by the testimony at trial. Pet’r Br.
at 57.

34
sufficient to support conviction). Furthermore, we are not to

reweigh the credibility of witnesses upon appeal and are to

assume that the jury found witnesses credible. United States v.

Reavis, 48 F.3d 763, 771 (4th Cir. 1995). Thus, we inquire

whether a reasonable jury, given the testimony before it, could

have found the defendant guilty of the charge.

What the defendants charge is true: the evidence presented

by the government was composed of testimony by coconspirators

who testified as to general dates on which the firearm and drug

offenses occurred. Additionally, it is true that much of the

testimony about the gun and drug offenses had no corroboration,

either from other witnesses or from physical evidence. However,

in reviewing the charges on which the defendants were convicted,

there was testimony at trial which corresponded to each of the

convictions. 7 Thus, the jury could have reasonably found that

the defendants committed the drug offenses with which they were

charged.

7
The defense offered the incarceration records of Toliver
in order to establish that he could not have been dealing drugs
at the time stated by the witness because he was incarcerated
then. Yet, the jury need not have found specific dates on which
the offenses occurred, and we will not disturb its verdict if it
could have rationally found the defendants committed the
offenses.

35
 3.

Mix then individually argues that his conviction for

assault with a deadly weapon in aid of racketeering should be

reversed because the jury found him not guilty of possession of

a firearm in furtherance of a violent crime in relation to the

same offense. His challenge to this conviction is unavailing

for two reasons. First and foremost, the Supreme Court has held

that defendants may not challenge verdicts which appear to be

inconsistent on the basis that the verdict was in error. United

States v. Powell, 469 U.S. 57, 66 (1984). Secondly, there is

not necessarily anything inherently contradictory about the

verdicts, as Mix was charged with aiding and abetting on the

count for which he was convicted and there is no requirement

that the principal be convicted in order for the aider and

abetter to be convicted. United States v. Horton, 921 F.2d 540,

543-44 (4th Cir. 1990). Thus, the jury rationally could have

found that Mix aided and abetted in the assault with a deadly

weapon in furtherance of racketeering without having possessed

or aided in the possession of any firearm.

4.

Mix finally argues that his conviction for accessory after

the fact related to the murder of James Robertson is not

supported by sufficient evidence because of perceived

inconsistencies in the testimony concerning the incident.

36
However, viewing the evidence in the light most favorable to the

government, there was certainly sufficient evidence to find that

Mix aided in helping the killer, Curtis Newby, leave Virginia

and hide out in New York. Marlon Reed testified that Mix told

him that he was taking Newby up to New York to hide out with

Cody in Mount Vernon. Further, the jury heard testimony that,

at the time of trial, Newby had just been extradited from New

York to Virginia. A rational jury thereby could have found that

Mix was an accessory after the fact to the murder.

III.

For the reasons detailed above, both Mix’s and Toliver’s

convictions are

AFFIRMED.

37