F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
July 6, 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 03-4240
TYRESE SHAROD SMITH, also
known as Seagram,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D. Ct. No. 2:02-CR-289-01-TC)
Tyrese Sharod Smith, Florence, Colorado, filed a pro se brief.
Catherine Conklin (Deirdre A. Gorman, with her on the briefs), Ogden, Utah,
appearing for Appellant.
Diana Hagen, Assistant United States Attorney (Paul M. Warner, United States
Attorney, and Robert A. Lund, Assistant United States Attorney, with her on the
briefs), Office of the United States Attorney for the District of Utah, Salt Lake
City, Utah, appearing for Appellee.
Before TACHA, Chief Circuit Judge, McKAY, and EBEL, Circuit Judges.
TACHA, Chief Circuit Judge.
A jury found Defendant-Appellant Tyrese S. Smith guilty of conspiring to
conduct the affairs of an enterprise through a pattern of racketeering activity in
violation of 18 U.S.C. § 1962(d), murder in aid of racketeering activity in
violation of 18 U.S.C. § 1959(a), and using a firearm during the commission of a
crime of violence in violation of 18 U.S.C. § 924(c). All three convictions stem
from Mr. Smith’s leadership of a Salt Lake City street gang known as the King
Mafia Disciples (“KMD”). On appeal, Mr. Smith, through his trial attorneys,
contests the first two convictions based on the sufficiency of the evidence and the
propriety of the jury instructions. Mr. Smith also raises four additional issues in
a pro se supplemental brief. We take jurisdiction under 28 U.S.C. § 1291 and
AFFIRM.
I. BACKGROUND
The facts involved in this case are complicated and lengthy. Given that
Mr. Smith contests the sufficiency of the evidence against him, we provide much
of the relevant details in the course of our legal analysis. To begin with,
however, we provide a brief overview of this case.
Mr. Smith, along with five others, formed KMD while in juvenile detention
at the Decker Lake Youth Detention Center in the early 1990s. The gang was
modeled on the Chicago “Gangster Disciples,” although the two gangs were
never affiliated. Mr. Smith was the undisputed leader of KMD and often went by
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the self-appointed title “King Seagram” to evidence his leadership role. KMD
had a formal process for initiating new members into the gang, which included
sponsorship by a current member, a probationary period, completion of a
“mission,” and a physical initiation. KMD also had a formal hierarchy of
members who were assigned ranks—Reverend, Minister, Priest, Knight, Bishop,
and Rook—to identify their standing in the gang. KMD was governed by rules
established by Mr. Smith, known as the KMD “bible,” including the requirement
to attend meetings, to maintain a code of silence, and to provide financially for
other KMD members. Members who violated the rules were subject to different
levels of penalties depending on the gravity of the offense. The record also
indicates that KMD held regular meetings at which gang business was discussed
and directives were issued by Mr. Smith, or, during times when he was in prison,
the highest ranking member who was present.
The overall goal of KMD was to be the most powerful gang in Salt Lake
City and to protect its members. These goals were often accomplished through
violent retaliatory attacks on rival gangs, which tended to increase the reputation
and notoriety of KMD, and, in turn, decreased the likelihood that KMD members
would be similarly attacked. Indeed, KMD’s philosophy concerning retaliation
was that KMD members should respond with twice the violence to rival gang
members’ attacks against them.
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Another purpose of KMD was to provide financial assistance to its
members and their families. To do this, KMD distributed marijuana on the streets
and also controlled the marijuana trade in the Utah State Prison. Home invasion
robberies were another way KMD members made money. The gang generally
targeted drug dealers’ homes because a drug dealer is unlikely to call the police
and because they could steal drugs as well as cash. The homes of drug dealers
also frequently contained guns, which KMD would also steal and use to commit
other crimes. Through drug trafficking and robberies, KMD members would
contribute money to those members needing help—including the wives and
children of incarcerated KMD members.
Members of KMD were constantly moving in and out of the Utah
penological system. Mr. Smith, in fact, was incarcerated in 1994 for his
participation in a drive-by shooting. He was paroled in October 1995, but he
violated his parole two months later and was returned to state prison. He was
then sentenced for the murder of Joey Miera, which was committed by KMD
members upon an order that he issued while incarcerated on the drive-by shooting
charge. Despite these periods of incarceration, Mr. Smith retained control of
KMD, issuing rules and orders—often on a daily basis—from his prison cell.
In 2002, while Mr. Smith was serving time for the murder of Mr. Miera, a
federal grand jury returned a three-count indictment charging Mr. Smith with
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conspiring to conduct the affairs of an enterprise through a pattern of racketeering
activity in violation of 18 U.S.C. § 1962(d) (“RICO conspiracy”), murder in aid
of racketeering activity in violation of 18 U.S.C. § 1959(a), and using a firearm
during the commission of a crime of violence in violation of 18 U.S.C. § 924(c).
Numerous other KMD members were named as coconspirators in the § 1962(d)
charge, but, because the others pleaded guilty or testified against him, Mr. Smith
was tried individually. The Government introduced evidence of numerous so-
called “predicate acts” to support this RICO conspiracy, including: three separate
instances of conspiracies to commit murders and attempted murders of rival gang
members, conspiracy to commit arson and attempted arson of a rival gang
member’s home, conspiracy to commit murder and the murder of a rival gang
member, conspiracy to commit robbery, and conspiracy to commit aggravated
robbery.
Prior to trial, Mr. Smith twice asked the District Court to discharge his
court-appointed attorneys and allow him to represent himself. The District Court
both times denied Mr. Smith’s request to proceed pro se but allowed Mr. Smith to
submit his own oral and written motions directly to the court. The case then went
to trial, and the jury convicted Mr. Smith on all three counts. The District Court
sentenced him to two life terms plus ten years’ imprisonment.
After the jury found Mr. Smith guilty on all three counts, he, through
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counsel, timely appealed his convictions under 18 U.S.C. § 1962(d) and 18 U.S.C.
§ 1959(a). With respect to the first conviction, he argues both that the evidence
was insufficient to convict him and that the jury was improperly instructed on the
elements of the crime. As to the second conviction, he argues that the
Government’s evidence was insufficient to support a conviction. After Mr.
Smith’s attorneys filed his opening appellate brief, Mr. Smith moved this Court
to discharge them and replace them with new counsel. We denied this motion but
allowed Mr. Smith to file a pro se supplemental brief raising any additional issue
he desired. In that brief, Mr. Smith raises four arguments that we address in the
last section of this opinion.
II. SUFFICIENCY OF THE EVIDENCE CHALLENGE TO THE
CONSPIRACY TO VIOLATE RICO CONVICTION
Mr. Smith first argues that the Government’s evidence at trial was
insufficient to support a conviction under 18 U.S.C. § 1962(d). In evaluating the
sufficiency of the evidence, we review the record de novo. United States v.
Nelson, 383 F.3d 1227, 1229 (10th Cir. 2004). There is sufficient evidence to
uphold a conviction if a reasonable jury could find the defendant guilty beyond a
reasonable doubt. Id. In making this determination, we review the direct and
circumstantial evidence, along with all reasonable inferences therefrom, in the
light most favorable to the Government. Id.
Mr. Smith was convicted of violating 18 U.S.C. § 1962(d), which makes it
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“unlawful for any person to conspire to violate” 18 U.S.C. § 1962(c). Because
this conspiracy provision lacks an overt act requirement, a defendant can be
convicted under § 1962(d) upon proof that the defendant knew about or agreed to
facilitate the commission of acts sufficient to establish a § 1962(c) violation. See
Salinas v. United States, 522 U.S. 52, 63–66 (1997).
In Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985), the Supreme Court
held that “[a] violation of § 1962(c) . . . requires (1) conduct (2) of an enterprise
(3) through a pattern (4) of racketeering activity.” Id. at 496 (internal note
omitted). 1 To clarify what conduct is necessary to prove a violation of § 1962(c),
some courts have expanded this test to incorporate additional elements of the
statute. See, e.g., Moss v. Morgan Stanley, Inc., 719 F.2d 5, 17 (2d Cir. 1983).
We adopt this approach to establishing a violation of § 1962(c), and because a
defendant violates § 1962(d) by conspiring to violate § 1962(c), we hold that in
order to convict a defendant for violating § 1962(d), the Government must prove
beyond a reasonable doubt that the defendant: (1) by knowing about and agreeing
to facilitate the commission of two or more acts (2) constituting a pattern (3) of
racketeering activity (4) participates in (5) an enterprise (6) the activities of
1
These requirements are taken directly from the text of the statute, which
makes it unlawful for “any person employed by or associated 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.” 18 U.S.C. § 1962(c).
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which affect interstate or foreign commerce.
With this in mind, we turn to Mr. Smith’s arguments on appeal. He
contends that the Government failed to present sufficient evidence: (1) of the
existence of a RICO enterprise; (2) of a pattern to the racketeering activity; (3) of
a nexus between the enterprise and the racketeering activity; (4) that he agreed to
facilitate the commission of the racketeering activity; and (5) that the enterprise,
if any, was engaged in, or its activities affected, interstate commerce. 2
A. Enterprise
The jury concluded that Mr. Smith participated in the affairs of KMD,
which it further found to be an “enterprise” under RICO. On appeal, Mr. Smith
does not deny his involvement with the gang but simply argues that the
Government failed to prove that KMD was an enterprise.
A RICO enterprise “includes any individual, partnership, corporation,
association, or other legal entity, and any union or group of individuals
associated in fact although not a legal entity.” 18 U.S.C. § 1961(4). In United
States v. Turkette, 452 U.S. 576, 583 (1981), the Supreme Court held that a RICO
enterprise “is proved by evidence of an ongoing organization, formal or informal,
and by evidence that the various associates function as a continuing unit.” The
2
Because Mr. Smith’s interstate-commerce argument with respect to the
sufficiency of the evidence is interwoven with his interstate-commerce argument
with respect to the jury instructions, we address it in Part III.A. below.
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Court also emphasized that the concepts of an enterprise and a pattern of
racketeering activity are distinct, stating that “[w]hile the proof used to establish
these separate elements may in particular cases coalesce, proof of one does not
necessarily establish the other.” Id.
Many of our sister circuits have had occasion to flesh out the Turkette
definition of “enterprise.” See, e.g., United States v. Darden, 70 F.3d 1507, 1520
(8th Cir. 1995). While this Court has never specifically adopted a scheme for
analyzing the enterprise element of a RICO claim, in United States v. Sanders,
928 F.2d 940, 943 (10th Cir. 1991), we took direction from the Third Circuit’s
decision in United States v. Riccobene, 709 F.2d 214, 222 (3d Cir. 1983),
abrogation on other grounds recognized by United States v. Vastola, 989 F.2d
1318, 1330 (3rd Cir. 1993).
Guided by Sanders, we now adopt the Riccobene framework and hold that
the Government establishes an enterprise when it proves three elements. First,
the Government must prove the existence of “an ongoing organization with a
decision-making framework or mechanism for controlling the group.” Sanders,
928 F.2d at 943. See United States v. Walters, 269 F.3d 1207, 1211 (10th Cir.
2001). Second, the Government must prove “that various associates function as a
continuing unit.” Sanders, 928 F.2d at 944. Finally, the Government must prove
that the enterprise exists “separate and apart from the pattern of racketeering
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activity.” Id.
Mr. Smith does not challenge the first element on appeal; thus we do not
consider it. We turn now to the second and third elements.
1. Continuing Unit
The second element that the Government must prove to establish that KMD
was an enterprise under RICO is that its “various associates function[ed] as a
continuing unit.” Turkette, 452 U.S. at 583. This element may be established
even if some individuals left KMD and were replaced by new members at a later
date. Riccobene, 709 F.2d at 223. Thus, the central feature of this element is
simply that each KMD member played a role in the gang that is both consistent
with KMD’s organizational structure and furthered the gang’s activities. Id.
The Government presented a wealth of evidence on this point to the jury.
Of particular importance, w hile in prison, Mr. Smith committed certain rules to
writing in a “bible” that set forth the structure and bylaws of KMD. The bible
recites how KMD was formed, explains how new members are initiated into the
gang, gives a code of conduct, states the types of violations and punishments
members would receive for breaking any “law of King Seag” (a reference to Mr.
Smith), and describes the hierarchy within the gang. Testimony showed that the
bible was distributed to KMD members. The Government also presented evidence
that Mr. Smith held the rank of Reverend, the highest KMD rank, and that he was
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the undisputed leader of KMD. The Government also presented evidence that
next highest rank of “Minister” included four founding members of
KMD—Robert Land, Miguel Flores, Fred Edwards, and Tony Pantelakis—as well
as Collin Carter, a non-founding member of KMD. Ministers were expected to
teach the bible to lower-ranking members, as well as teach them how to commit
crimes in order to secure more power for KMD, fostering KMD’s long-term goal
of being the most powerful Salt Lake City gang and protecting its members
physically and financially. Given this evidence, along with other evidence of
KMD’s structure outlined below, we conclude that the Government presented
sufficient evidence that KMD was a continuing unit.
2. Existence Apart From the Pattern of Racketeering Activity
The third element the Government must prove to establish that KMD was a
RICO enterprise is that the gang existed as “an entity separate and apart from the
pattern of activity in which it engages.” Turkette, 452 U.S. at 583. In other
words, the “enterprise” must not be just a name for the crimes KMD members
committed. See United States v. Rogers, 89 F.3d 1326, 1337 (7th Cir. 1996).
Therefore, to satisfy this element, “it is not necessary to show that the enterprise
has some function wholly unrelated to the racketeering activity, but rather that it
has an existence beyond that which is necessary merely to commit each of the
acts charged as predicate racketeering offenses.” Riccobene, 709 F.2d at 223–24.
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The Government presented substantial evidence to the jury on this point.
In 1992, when Mr. Smith was incarcerated at the Decker Lake Youth Detention
Center, he formed KMD. Seeking to keep the gang organized and tight-knit, Mr.
Smith modeled KMD after the Gangster Disciples, one of the largest and most
powerful street gangs in the United States. Mr. Smith adopted many of the
Gangster Disciples’ symbols for KMD. Both, for example, use the name
“Disciples”; and both use a six-pointed star, a pitchfork, and a crown to represent
membership. In addition, the two founders of the Gangster Disciples were known
as “King Barksdale” and “King Hoover,” and, after founding KMD, Mr. Smith
adopted the name “King Seagram.”
There were five original members of KMD besides Mr. Smith: Mr. Land,
Mr. Flores, Mr. Pantelakis, Mr. Edwards, and Jeremy Hayes. Other members
were brought into the gang by a formalized process. First, a current KMD
member called a “guardian angel” would vouch for and sponsor a new recruit.
The guardian angel would teach the potential member about KMD and set an
example of how to behave. Then, during a 67-day testing period, the recruit
would be assigned a “mission” in order to prove himself. Missions were usually
criminal acts of retaliation against rival gang members. Missions often included
robberies, assaults, and drive-by shootings. If the potential member was either
successful in his mission or silent if he was caught, he would be given a loyalty
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oath and then “jumped in” (i.e., beaten by other KMD members). After the
physical initiation, he would be a member of KMD—subject to Mr. Smith’s final
approval.
KMD held weekly meetings, even when some members were incarcerated.
When Mr. Smith was not incarcerated, he personally conducted the meetings
outside prison. When Mr. Smith was incarcerated, he conducted meetings inside
prison and the highest-ranking non-incarcerated KMD member would conduct the
meetings outside prison. KMD members were required to attend these meetings.
Roll call was taken at each meeting and a member who missed a meeting was
deemed to have committed a “violation.” Mr. Smith decided the appropriate
punishment for a violation, which would often require the member to be beaten by
other KMD members. Mr. Smith also established rules for conducting the
meetings, such as requiring a secretary to take notes. Mr. Smith’s girlfriend,
Melissa Chacon, often acted as secretary. Meetings centered on the status of
KMD, concerns of KMD members in prison, financial problems of KMD
members, conflicts with rival gangs, and plans to obtain money for the benefit of
members and their families. Mr. Smith often issued directives at meetings.
Even during the time Mr. Smith was incarcerated, he remained the leader of
KMD. While in prison, he would call Ms. Chacon regularly and give her orders
such as when to call a meeting, what issues needed to be discussed, and what he
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wanted members to do. Ms. Chacon would then relay these orders to other KMD
members, who followed them without question.
Given this wealth of evidence, coupled with the evidence of the KMD
bible, we easily conclude that there was sufficient evidence to prove that KMD
had an existence as “an entity separate and apart from the pattern of activity in
which it engages.” Turkette, 452 U.S. at 583.
B. Pattern of Racketeering Activity
Mr. Smith next asserts that the Government failed to present sufficient
evidence that he engaged in a pattern of racketeering activity. Racketeering
activity, which is frequently described as a “predicate act” or “predicate acts,”
consists of federal and state crimes identified in 18 U.S.C. § 1961(1). For a
pattern of racketeering activity to exist, it is necessary that at least two predicate
acts were committed within ten years of another. 18 U.S.C. § 1961(5). But a
finding that two predicate acts were committed within this time frame—as is the
case here—is not sufficient to establish a pattern of racketeering activity.
Instead, the Supreme Court has held that the pattern element requires the
Government to show that the predicate acts are (1) “related” and (2) that “they
amount to or pose a threat of continued criminal activity.” H.J., Inc. v.
Northwestern Bell Tel. Co., 492 U.S. 229, 239 (1989).
Mr. Smith does not argue that any of the seven predicate acts found by the
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jury—specifically, three acts of conspiring to commit murder, one act of
conspiracy to commit arson, one act of murder, and two acts of conspiracy to
commit robbery—are not predicate acts under § 1961(1). Indeed, § 1961(1)
defines “racketeering activity” as “any act or threat involving murder, . . . arson,
[or] robbery . . . which is chargeable under State law and punishable by
imprisonment for more than one year.” 18 U.S.C. § 1961(1). Instead, Mr. Smith
contends that there is no pattern to the acts. We disagree.
1. Relatedness
Predicate acts are related if they “have the same or similar purposes,
results, participants, victims, or methods of commission, or otherwise are
interrelated by distinguishing characteristics and are not isolated events.” H.J.,
492 U.S. at 240 (internal quotation omitted). Mr. Smith argues that there is
insufficient evidence to find the acts related because the actors only acted out of
personal reasons, not because KMD wished to retaliate against other gangs as
urged by the Government. We reject Mr. Smith’s argument because a jury could
have concluded that at least the first five predicate acts were related insofar as
they had a similar purpose. In other words, there was sufficient evidence
showing that all five crimes were violent acts of retaliation committed by KMD
members against rival gangs (or people believed to be members of rival gangs)
for the purpose of maintaining KMD’s reputation.
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The first predicate act involves conspiracy to commit murder and attempted
murder of a rival gang member in December 1992. On appeal, Mr. Smith
contends that the shooters in this instance were retaliating for personal reasons.
The Government, however, put on the following contradictory testimony: After a
KMD member was assaulted by a rival gang, Mr. Smith held a meeting and told
other KMD members that they needed to retaliate. Mr. Land and Mr. Flores were
at the meeting. Mr. Smith gave the two men a handgun, told them he wanted the
retaliation to take place at one of the rival gang’s homes and drove them there,
dropping them off about a block away from the target. Mr. Land and Mr. Flores
walked up to the house and fired five shots inside. Flying glass hit a child and a
sixteen-year-old girl was shot. Mr. Land and Mr. Flores then ran back to the car
where Mr. Smith was waiting for them. This testimony constitutes sufficient
evidence for a reasonable jury to find that this crime was done by KMD as an act
of retaliation.
The second predicate act concerns another conspiracy to commit murder
and attempted murder of rival gang members in May 1993. Here, Mr. Smith
argues that the shooting was only a “spontaneous fit of temper,” not an act of
retaliation by KMD. Again, however, the Government submitted substantial
evidence that the conduct was retaliatory in nature. The Ponchito Crip Gang
(“PCG”), one of KMD’s rivals, was moving into KMD territory. Mr. Smith told
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KMD members that PCG could not be allowed to do so and should be driven out
of the area. On May 19, 1993, a PCG member named Adan Ramirez was standing
outside his home with his friend Roman Mendoza. The home was considered to
be in KMD territory, but on the sidewalk in front of the home someone had
written “PCG.” Mr. Smith, along with other KMD members dressed in KMD’s
signature color of purple, walked past the house several times staring at Mr.
Ramirez and Mr. Mendoza. Mr. Mendoza made an obscene hand gesture toward
the KMD members, after which two KMD members ran after Mr. Ramirez and
Mr. Mendoza with shotguns. The KMD members fired at the men but only struck
the house. Again, a reasonable jury could conclude that this was an act of
retaliation by KMD.
The next predicate act involves yet a third conspiracy to commit murder
and attempted murder of a rival gang member—this time, in February 1994. Mr.
Smith contends that this act was an instance of personal revenge unrelated to
membership in KMD. Again, the Government offered contrary evidence. In
early 1994, fifteen members of the rival Park Village Compton Crips (“PVCC”)
severely beat several KMD members, including Bryan Caldwell and Mr.
Pantelakis. Mr. Caldwell and Mr. Pantelakis knew that if they did not retaliate,
KMD and its members would lose prestige with other gangs and incarcerated
KMD members would similarly lose prestige in prison. Therefore, the two men
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borrowed a shotgun and planned to retaliate on February 4, 1994. Mr. Caldwell
was supposed to pick up Mr. Pantelakis at his home after which the two intended
to search for a PVCC member to shoot. Mr. Pantelakis, however, got tired of
waiting for Mr. Caldwell and decided to take the bus. At this time, Mr.
Pantelakis was under police surveillance in connection with a burglary, and a
warrant for his arrest had already been issued. Police officers who had been
watching Mr. Pantelakis saw him board the bus, stopped it, arrested Mr.
Pantelakis, and seized a gun. Mr. Pantelakis then told the police that he was on
his way to shoot someone in retaliation for a beating that had occurred the week
before. While no witness testified that this predicate act took place because Mr.
Pantelakis felt constrained by the KMD bible, which requires retaliation, the jury
could have inferred simply from the bible’s existence that any failure to retaliate
for an attack on a KMD member would have damaged KMD’s reputation and
invited future attacks due to KMD’s perceived weakness.
The fourth predicate act references a conspiracy to commit arson and
attempted arson in February 1996. The Government presented the following
evidence: On February 15, 1996, members of the rival Avenues gang shot KMD
member Davin Trujillo. He was paralyzed by the attack. Mr. Lopez and Mr.
Carter, who were with Mr. Trujillo when he was shot, identified the shooter as
Adam Archuleta. At this time, Mr. Smith was in the Utah State Prison.
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That night and over the next few days, Mr. Smith called Ms. Chacon from
prison to discuss the shooting. These phone conversations were recorded by the
Utah State Prison and submitted into evidence. In those phone calls, Mr. Smith
instructed Ms. Chacon to tell Mr. Lopez, Mr. Flores, and Mr. Carter that they
needed to retaliate against the Avenues. Mr. Smith said that he wanted the three
KMD members and Ms. Chacon to spend the night in the same house. Ms.
Chacon was to wake the KMD members at 5:30 A . M . the next day, February 16,
and the three men were to break into a home belonging to Avenues members and
shoot members of the rival gang at approximately 6:00 A . M . They were to use Mr.
Smith’s nine-millimeter handgun and Ms. Chacon’s .380 Beretta, and they were to
leave the guns about a block away after the shooting.
The next day, however, no retaliation took place. Mr. Smith told Ms.
Chacon that if Mr. Lopez, Mr. Flores, and Mr. Carter did not retaliate, then they
would be “cancelled” (i.e., kicked out of KMD). Ms. Chacon, the three men, and
two members of an associate gang then met to discuss retaliation against the
Avenues. They decided to firebomb a house they believed to be occupied by Mr.
Archuleta. On February 18, the men filled some beer bottles with gasoline and
stuck pieces of rags in them as wicks. They lit the bottles on fire and threw them
into the house. The gang members, however, were mistaken about the home’s
occupants. The family living there had no connection to the Avenues.
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Mr. Smith argues on appeal that the disconnect between the shooting he
ordered and the firebombing that was committed proves a lack of relatedness.
This argument, however, is without merit because—even by Mr. Smith’s
account—the firebombing was related to KMD’s desire to retaliate against a rival
gang.
The fifth predicate act references a conspiracy to murder a rival gang
member and the commission of a murder in February 1996. These crimes
represent KMD’s continued attempt to retaliate against the Avenues. Three days
after the firebombing, Mr. Smith again spoke with Mr. Lopez, Mr. Flores, and Mr.
Carter while they were at Ms. Chacon’s house. Angered with their actions, Mr.
Smith again threatened to “cancel” those KMD members. Mr. Carter and Mr.
Lopez begged for another chance. Mr. Smith outlined the same plan he had in
mind originally: the three were to break into an Avenues home and shoot its
occupants at 6:00 A . M . the following morning. On February 22, the three KMD
members drove to the house where they believed Mr. Archuleta lived. Seeing an
open window and a man sleeping on the floor a few feet beside it, Mr. Flores
stuck a 12-gauge shotgun through the window and shot the man twice in the head.
The man, Joey Miera, was killed by the shots. Mr. Miera, however, was neither a
member of, nor associated with, the Avenues. On appeal, Mr. Smith does not
argue that this murder is unrelated to any other predicate act.
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Based upon this record, a reasonable jury could conclude that all five
crimes were violent acts of retaliation committed by KMD members against rival
gangs (or people believed to be members of rival gangs) for the purpose of
maintaining KMD’s reputation, which were conducted upon Mr. Smith’s direct or
indirect orders. Therefore, we conclude there was sufficient evidence for the jury
to determine that at least these five predicate acts were related.
2. Continuity
Predicate acts must also “amount to or pose a threat of continued criminal
activity” in order to establish a pattern of racketeering activity. H.J., 492 U.S. at
239. “‘Continuity’ is both a closed- and open-ended concept, referring either to a
closed period of repeated conduct, or to past conduct that by its nature projects
into the future with a threat of repetition.” Id. at 241. Proving continuity may be
done in several ways; there is no bright-line rule. Id. Indeed, whether this
requirement is met “depends on the specific facts of each case.” Id. at 242.
We look to two especially relevant factors when performing continuity
analyses. Resolution Trust Corp. v. Stone, 998 F.2d 1534, 1543 (10th Cir. 1993).
First, “we consider the duration of the related predicate acts.” Id. Related
predicate acts that span only a few weeks or months, and that do not pose a future
threat of criminal conduct, do not meet this test. H.J., 492 U.S. at 242. Second,
we consider “the extensiveness of the RICO enterprise’s scheme.” Resolution
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Trust Corp., 998 F.2d at 1543. The extensiveness of the enterprise’s scheme is
determined by considering several sub-factors: “the number of victims, the
number of the racketeering acts, the variety of racketeering acts, whether the
injuries caused were distinct, the complexity and size of the scheme, and the
nature or character of the enterprise or unlawful activity.” Id. at 1543–44
(internal citations omitted).
Mr. Smith simply argues, without discussing Resolution Trust, that the
evidence at trial did not support a finding that there was an ongoing threat of
criminal activity. But this type of continuity—the “open-ended” variety—is not
the only type of continuous activity recognized by both this Court and the
Supreme Court. The continuity requirement may also be found when there is a
closed period of related conduct; in that case, there need not be a threat of future
activity. Therefore, based on an analysis of the Resolution Trust factors, we
conclude that there was sufficient evidence for the jury to find that at least the
first five predicate acts demonstrated a period of closed-ended continuity.
Because we previously concluded that there was sufficient evidence for the jury
to find that at least the first five predicate acts were related, the Government
presented sufficient evidence for a jury to find a pattern of racketeering activity
under RICO.
C. Nexus Between the Enterprise and the Racketeering Activity
-22-
Next, Mr. Smith asserts that there is insufficient evidence of a nexus
between KMD and the predicate acts. In a RICO prosecution, the Government
must prove a relationship between the racketeering activity and the enterprise.
United States v. Killip, 819 F.2d 1542, 1549 (10th Cir. 1987). A nexus between
the racketeering activity and the enterprise is established when there is “a relation
between the predicate offenses and the affairs of the enterprise.” Id. In this case,
the requisite relationship may be proved by demonstrating that KMD facilitated
the commission of the predicate acts. See id.
Mr. Smith argues, as he also does with respect to the “relatedness” element
above, that each person who committed a predicate act did so for personal
reasons unrelated to his membership in KMD. As we previously explained, there
was sufficient evidence for the jury to conclude that each of the first five
predicate acts were acts of retaliation ordered, directly or indirectly, by Mr. Smith
in his capacity as leader of KMD. That evidence, therefore, is also sufficient to
establish a nexus between the predicate acts and KMD.
D. Conspiracy to Violate RICO
Section 1962(d) prohibits a person from conspiring to violate § 1962(c).
The conspiracy element of § 1962(d) requires the Government to demonstrate
only that the defendant knew about and agreed to facilitate the commission
of—rather than personally committed or agreed to commit—at least two of the
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predicate acts constituting a pattern of racketeering activity that were proven at
trial. See Salinas, 522 U.S. at 66. In this case, the jury found seven predicate
acts, each of which was committed by a member of KMD other than Mr. Smith,
and we concluded that at least the first five constituted a pattern of racketeering
activity: two shootings at the homes of rival gang members, the attempted
shooting of a rival gang member by Mr. Pantelakis, the firebombing, and the
murder of Mr. Miera. Therefore, to decide whether there was sufficient evidence
to convict Mr. Smith of conspiring to violate § 1962(c), we must first determine
whether there was sufficient evidence for a jury to find that Mr. Smith knew
about and agreed to facilitate the commission of at least two of those five
predicate acts.
There is no question that Mr. Smith ordered the murder of Mr. Miera, as he
admits to it. Mr. Smith argues, however, that the most the Government proved at
trial was that he knew about the remaining predicate acts, as opposed to proving
that he agreed to facilitate their commission. We disagree.
There was sufficient evidence that Mr. Smith agreed to facilitate the
commission of all five predicate acts. With respect to the first predicate act, the
walk-up shooting, testimony at trial established that Mr. Smith ordered the
shooting, chose the target of the shooting, supplied the gun, and drove the
shooters to the location of the target. As to the second predicate act, there was
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evidence that Mr. Smith indicated at a KMD meeting that the rival gang needed
to be driven from KMD’s neighborhood. The retaliation in the fourth predicate,
like the murder of Mr. Miera, was expressly ordered by Mr. Smith. While he had
wanted a shooting, rather than a firebombing, to be the type of retaliation, there
is no question that he had ordered some type of violent retaliation. The fact that
the event that ultimately took place—throwing gasoline-filled beer bottles and lit
rags into a house—was somewhat different than what he had originally ordered,
entering the house and shooting its occupants, does not undermine the jury’s
conclusion that he agreed that a retaliatory act should occur.
Finally, with respect to the third predicate act, the attempted shooting of a
rival PVCC member by Mr. Pantelakis, the Government did not offer direct
evidence of an express agreement by Mr. Smith. A conspiratorial agreement,
however, “need not be express so long as its existence can plausibly be inferred
from the defendant[’s] words and actions and the interdependence of activities
and persons involved.” United States v. Cianci, 378 F.3d 71, 90 (1st Cir. 2004)
(internal quotations omitted). Here, the Government established that KMD
routinely retaliated against rival gang members for acts of violence committed
against its own members, that Mr. Smith often expressly ordered acts of
retaliation, and that the purpose of retaliating was to maintain the reputation of
KMD which in turn protected individual members. Although Mr. Smith was
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incarcerated when Mr. Pantelakis was arrested with the shotgun, there was
sufficient evidence for the jury to find that Mr. Smith had a tacit agreement
between himself and members of KMD that they would retaliate in response to
attacks on KMD members. Therefore, we conclude that the Government
presented sufficient evidence that Mr. Smith agreed to facilitate the first five
predicate acts.
III. JURY INSTRUCTIONS
Besides arguing that the evidence at trial was insufficient to support his
conviction under 18 U.S.C. § 1962(d), Mr. Smith also contends that the District
Court improperly instructed the jury. Jury instructions are reviewed “to
determine whether, as a whole, the instructions correctly state the governing law
and provide the jury with an ample understanding of the issues and applicable
standards.” United States v. Fredette, 315 F.3d 1235, 1240 (10th Cir. 2003)
(internal quotation marks omitted).
A. Effect on Interstate Commerce
The District Court instructed the jury that “the government must prove
beyond a reasonable doubt . . . that the enterprise was engaged in, or its activities
had an effect upon, interstate commerce.” Another instruction stated that the
purchase and sale of controlled substances produced or cultivated outside of Utah
or the use of firearms or ammunition manufactured outside of Utah may be
-26-
sufficient to prove the interstate commerce element of § 1962(c). Mr. Smith
maintains that the District Court erred by not instructing the jury that it must find
the activities of KMD substantially affected interstate commerce under United
States v. Lopez, 514 U.S. 549 (1995) and United States v. Morrison, 529 U.S.
598 (2000).
Mr. Smith, however, did not make this objection at trial. We therefore
review the District Court’s use of the instruction for plain error. United States v.
Lott, 310 F.3d 1231, 1241 (10th Cir. 2002). Thus, Mr. Smith must demonstrate
that the jury instruction (1) is erroneous; (2) is plainly so; and (3) that the error
affects substantial rights; if he satisfies these criteria, we may exercise discretion
to correct the error only if it “seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id. (alterations omitted).
Under plain-error review, an error is “plain” if it is “obvious or clear, i.e.,
if it is contrary to well-settled law.” United States v. Edgar, 348 F.3d 867, 871
(10th Cir. 2003). Whether § 1962(c) should be interpreted to require a
substantial effect on interstate commerce is an open question in this circuit. We
note, however, that neither the Supreme Court nor any courts of appeals have
held that the effect must be substantial, and a number of our sister circuits have
held that a de minimis effect on interstate commerce is sufficient to satisfy this
statutory requirement. See United States v. Shyrock, 342 F.3d 948, 984 (9th Cir.
-27-
2003) (holding that the district court properly instructed the jury that § 1962(c)’s
jurisdictional element was satisfied if the jury found “a de minimis affect [sic] on
interstate commerce”); United States v. Marino, 277 F.3d 11, 35 (1st Cir. 2002)
(holding that “the government does not need to show that the RICO enterprise’s
effect on interstate commerce is substantial”); United States v. Riddle, 249 F.3d
529, 537 (6th Cir. 2001) (holding that a “RICO enterprise’s necessary
relationship to interstate commerce" is “de minimis”); United States v. Miller,
116 F.3d 641, 674 (2d Cir. 1997) (holding that “the government need only prove
that the individual subject transaction has a de minimis effect on interstate
commerce” in order to satisfy § 1962(c)). As these decisions make clear, the
District Court’s instruction was not contrary to well-settled law, and therefore
even if the District Court erred, the error is not plain. As such, Mr. Smith’s
argument does not satisfy plain-error review.
We also find no merit in Mr. Smith’s argument that the evidence was
insufficient to establish the requisite effect on interstate commerce. To begin,
this argument is also subject to plain-error review because Mr. Smith did not
raise this issue in his motion for judgment of acquittal. See United States v.
Kimler, 335 F.3d 1132, 1141 (10th Cir. 2003) (applying plain-error review
because “[when] a Rule 29 motion [for a judgment of acquittal] has been made
on specific grounds, ‘all grounds not specified in the motion are waived’”)
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(quoting United States v. Chance, 306 F.3d 356, 369 (6th Cir. 2002)). Mr.
Smith’s sufficiency of the evidence argument is predicated on the view that the
jury needed to find a substantial effect on interstate commerce. Because we
reject this argument, and because the jury made findings sufficient to support a
de minimis impact on interstate commerce, the District Court did not plainly err
in affirming a jury verdict that was based, in part, on this instruction.
B. Whether Interstate Commerce Must Have Been Contemplated by the RICO
Conspiracy
Mr. Smith further argues that the jury should have been instructed that “the
Government must prove that the defendant’s agreement contemplated or that the
defendant had a reasonable basis to foresee that the affairs of the enterprise
would affect interstate commerce.”
The District Court’s refusal to issue a particular jury instruction is
reviewed for an abuse of discretion. United States v. Edwards, 69 F.3d 419, 433
(10th Cir. 1995). The District Court did not abuse its discretion here. The
phrase “engaged in, or the activities of which affect, interstate or foreign
commerce” is a jurisdictional, rather than substantive, element of 18 U.S.C.
§ 1962(c). We have held that “knowledge of such jurisdictional facts is not
generally an element of the required intent under federal statutes.” United States
v. Speir, 564 F.2d 934, 938 (10th Cir. 1977) (citing United States v. Feola, 420
U.S. 671, 684–85 (1975)); see also United States v. Gumbs, 283 F.3d 128, 136
-29-
(3d Cir. 2002); United States v. Rosa, 17 F.3d 1531, 1543 (2d Cir. 1994). We
hold, then, that the Government was not required to prove Mr. Smith knew or
should have known that KMD was engaged in, or its activities affected, interstate
commerce. The District Court, therefore, did not abuse its discretion in refusing
to instruct the jury on this point.
C. Variance
Mr. Smith next contends that his conviction was obtained on the theory
that all members of KMD were members of a single conspiracy even though the
proof at trial disclosed only multiple conspiracies, and that the rule of variance
prohibits this practice under United States v. Johanson, 56 F.3d 347, 350 (2d Cir.
1995). A “simple variance” occurs when the charging terms in the jury
instructions reflect the charges in the indictment, but the evidence at trial proves
materially different facts from those alleged in the indictment. Hunter v. New
Mexico, 916 F.2d 595, 598 (10th Cir. 1990); see also Edwards, 69 F.3d at 432
(holding that when “a single conspiracy is charged in the indictment, and the
government proves only multiple conspiracies, a defendant who suffers
substantial prejudice must have his conviction reversed”). Mr. Smith, however,
did not raise this issue in his motion for acquittal notwithstanding the verdict. As
such, we review it only for plain error, see Kimler, 335 F.3d at 1141, and hold
that there was no variance.
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To begin, Mr. Smith’s reliance on Johanson is misplaced. In that case, Mr.
Johanson was indicted for, and convicted of, conspiring to commit credit card
fraud with four other men—Mr. Louros, Mr. Ferrante, Mr. Barwick, and Mr.
Degel. Johanson, 56 F.3d at 350. Mr. Barwick pleaded guilty, but the remaining
defendants were tried together. Id. The evidence at trial established that “several
credit card fraud conspiracies existed—one between Barwick, Ferrante, and
Degel; one between Barwick and Johanson; and a third between Johanson and
Barwick.” Id. at 351. There was no evidence, however, that linked all four
defendants to a single, overarching conspiracy. Id. Indeed, the Government
failed to put on any evidence that Mr. Johanson even knew Mr. Ferrante or Mr.
Degel, or that they shared a common goal. Id. Therefore, the Second Circuit
held that “[b]ecause the indictment charges a single conspiracy to commit credit
card fraud, but the evidence shows multiple conspiracies to commit credit card
fraud, there is a variance between the allegation in the indictment and the proof
at trial.” Id.
In this case, however, there is no question that Mr. Smith personally knew
and worked in conjunction with the other members of KMD named as RICO
coconspirators in order to further the reputation and power of KMD through
criminal conduct. Indeed, this type of relationship, which we have characterized
as “interdependence,” is the key issue in determining whether a single conspiracy
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exists. See Edwards, 69 F.3d at 432 (“Interdependence exists where each
coconspirators’ activities constituted essential and integral steps toward the
realization of a common, illicit goal.”) (internal quotations omitted).
We therefore disagree with Mr. Smith’s contention that because the
participants in the predicate acts varied from act to act, as did their motivation
and the methods of the acts’ commission, there could not have been any
interdependence among the coconspirators and therefore no single, overarching
conspiracy. First, we have already held that there was sufficient evidence for a
jury to conclude that the purpose underlying at least five predicate acts was the
same—to retaliate violently against rival gang members in order to maintain the
power and prestige of KMD. Second, we agree with the First Circuit that:
The government need not show that each conspirator knew of or had
contact with all other members. Nor need it show that the
conspirators knew all of the details of the conspiracy or participated
in every act in furtherance of the conspiracy. Changes in the cast of
characters do not preclude a finding of a single overarching
conspiracy.
United States v. Soto-Beniquez, 356 F.3d 1, 19 (1st Cir. 2004) (internal citations
omitted). In this case, then, we hold that there was no variance between the
single conspiracy alleged in the indictment and the Government’s evidence at
trial.
D. Nexus Between KMD and the Racketeering Activity
Mr. Smith argues that the jury was prevented from acquitting him because
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the District Court refused to instruct the jury that the enterprise was conducted
through the pattern of racketeering activity and to define the term “through.”
The District Court’s refusal to issue a particular jury instruction is reviewed for
an abuse of discretion. Edwards, 69 F.3d at 433. Moreover, if “the charge as a
whole adequately states the law, the refusal to give a particular instruction is not
an abuse of discretion.” United States v. Suntar Roofing, Inc., 897 F.2d 469, 473
(10th Cir. 1990).
Here, the jury charges, taken in their entirety, adequately reflect the law.
The District Court first instructed the jury that Mr. Smith was charged with
conspiring to violate § 1962(c), which makes it a crime to “conduct or
participate, directly or indirectly, in the conduct of such enterprise’s affairs
through a pattern of racketeering activity.” The District Court went on to charge
the jury that “[t]he first element that the government must prove beyond a
reasonable doubt is that KMD was an ‘enterprise’ engaged in a pattern of
racketeering activity.” These two instructions sufficiently related to the jury that
they must find a nexus—that is, “a relation”—between the racketeering activity
and the affairs of the enterprise. Killip, 819 F.2d at 1549. The District Court,
therefore, did not abuse its discretion in refusing to issue Mr. Smith’s proposed
instruction.
E. Special Verdict Form
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For a RICO conviction to stand, the jury must have found unanimously that
the defendant committed or agreed to commit at least two predicate acts. See 18
U.S.C. § 1961(5). In Mr. Smith’s trial, the District Court issued a special verdict
form that stated, “Write the numbers of the racketeering acts that you have
unanimously found that Mr. Smith agreed would be committed.” On the blank
line following the instruction, the jury wrote “1, 2, 3, 4, 5, 14, 8.” These
numbers correspond to the walk-up shooting, the shooting at the home of rival
gang members, Mr. Pantelakis’ arrest with a shotgun on his way to retaliate
against PVCC members, the firebombing, the murder of Mr. Miera, and the two
home invasion robberies.
Mr. Smith argues that the District Court erred in using that form instead of
his proposed form. His proposed form named each predicate act along with a
specific “yes” or “no” question as to whether he had committed or agreed to
commit the act. Mr. Smith contends that the District Court’s failure to use his
form led to juror confusion and the possibility that the jury did not make a
unanimous decision as to each predicate act.
We review a special verdict form for abuse of discretion. Webb v. ABF
Freight Sys., Inc., 155 F.3d 1230, 1249 (10th Cir. 1998). The District Court did
not abuse its discretion here. The verdict form stated explicitly that the jury must
be unanimous in its findings. Moreover, the jury instructions also clearly stated
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that the jurors “must all agree unanimously on at least two of the same
racketeering acts” in order to convict Mr. Smith. Hence, Mr. Smith’s contention
is without merit.
IV. SUFFICIENCY OF THE EVIDENCE CHALLENGE TO THE MURDER
IN AID OF RACKETEERING CONVICTION
Mr. Smith was also convicted under 18 U.S.C. § 1959(a), which prohibits a
person from, among other things, committing murder “for the purpose of gaining
entrance to or maintaining or increasing [his] position in an enterprise engaged in
racketeering activity.” 18 U.S.C. § 1959(a). As such, the Government must
prove beyond a reasonable doubt that (1) KMD was an enterprise within the
meaning of RICO; (2) that KMD was engaged in racketeering activity; (3) that
Mr. Smith had a position in KMD; (4) that Mr. Smith conspired to murder Mr.
Miera; and (5) that his general purpose in doing so was to maintain or increase
his position in KMD. See United States v. Concepcion, 983 F.2d 369, 381 (2d
Cir. 1992). Mr. Smith argues that the Government did not present sufficient
evidence that he conspired to murder Mr. Miera to maintain or enhance his
leadership position in KMD, contending that he murdered Mr. Miera only to
avenge the attack on Mr. Trujillo. We disagree.
In evaluating the sufficiency of the evidence, we review the record de novo.
Nelson, 383 F.3d at 1229. There is sufficient evidence to uphold a conviction if a
reasonable jury could find the defendant guilty beyond a reasonable doubt. Id. In
-35-
making this determination, we review the direct and circumstantial evidence,
along with all reasonable inferences therefrom, in the light most favorable to the
Government. Id.
The Government need not establish that Mr. Smith’s sole or principal
motive for conspiring to murder Mr. Miera was to maintain or increase his
position in KMD in order for it to convict Mr. Smith under § 1959(a). See
United States v. Pimentel, 346 F.3d 285, 295 (2d Cir. 2003). Instead, proof that
the crime was “committed as an integral aspect of membership in [KMD]” is
sufficient to establish this element of a § 1959(a) offense. United States v. Thai,
29 F.3d 785, 817 (2d Cir. 1994) (internal quotations omitted). Therefore, we
agree with the Second Circuit that “the motive requirement is satisfied if ‘the jury
could properly infer that the defendant committed his violent crime because he
knew it was expected of him by reason of his membership in the enterprise or
that he committed it in furtherance of that membership.’” United States v.
Dhinsa, 243 F.3d 635, 671 (2d Cir. 2001).
In this case, there was extensive testimony at trial that acts of violence
were a common part of KMD’s culture and that members were expected to
retaliate against acts of violence committed on fellow members. In addition,
there was testimony that members of KMD felt pressure to live up to their KMD
nicknames—and it is undisputed that Mr. Smith was the “King” of KMD. Mr.
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Smith, however, argues that because he was already the leader of KMD, he could
not have ordered the murder to increase his position in the gang. We disagree. A
conviction under § 1959(a) will stand even when the underlying crime was
sanctioned by a high-ranking leader of the RICO enterprise, if the high-ranking
leader was expected to act and any failure to do so would have undermined his
position in the enterprise. See Dhinsa, 243 F.3d at 671–72. We find this to be
the case here. A reasonable jury, therefore, could have concluded that Mr. Smith
ordered the murder of Mr. Miera to maintain or increase his position in KMD.
V. PRO SE SUPPLEMENTAL BRIEF
We allowed Mr. Smith to file a pro se supplemental brief raising additional
issues on appeal. In that brief, Mr. Smith raises four arguments, which we
address below.
A. Recorded Phone Conversations Between Mr. Smith and Ms. Chacon as
Inadmissible Fruit of an Unlawful Arrest
Mr. Smith was arrested in 1993 in conjunction with a drive-by shooting.
He was convicted and sentenced to the Utah State Prison, where he remained until
his parole in October 1995. That December, however, the Utah Board of Pardons
and Parole (“the board”) determined that he violated the conditions of his parole
and issued a warrant for his arrest, known as a “retaking warrant.” He was
detained by Utah police officers and returned to the Utah State Prison, where he
-37-
later implicated himself in Mr. Miera’s murder in his telephone conversations
with Ms. Chacon. Mr. Smith argues that the board acted unlawfully in issuing a
retaking warrant, and that his phone conversations were therefore “fruit of the
poisonous tree” and should not have been admitted at trial. The District Court
rejected this argument. Reviewing de novo, United States v. Parker, 362 F.3d
1279, 1281 (10th Cir. 2004), w e affirm.
Mr. Smith’s argument fails for two reasons. First, the “fruit of the poison
tree” doctrine excludes evidence obtained in reliance upon an illegal search. See
Nardone v. United States, 308 U.S. 338, 341 (1939) (establishing the doctrine).
This Fourth Amendment doctrine does not provide absolute immunity from
prosecution for crimes committed by a wrongfully incarcerated defendant, which
appears to be Mr. Smith’s argument.
Moreover, Mr. Smith’s argument that he was wrongfully incarcerated also
fails. He first argues that it is unconstitutional under the Utah Constitution for
the board, rather than a judge, to issue retaking warrants. This contention was
squarely rejected by the Utah Supreme Court in Jones v. Utah Board of Pardons
and Parole, 94 P.3d 283 (Utah 2004). Mr. Smith next argues that the board
breached an implied contract contained in his parole agreement when it, rather
than a judge, determined he had violated the terms of his parole. Regardless of
how Mr. Smith construes the language in his parole agreement, Utah law
-38-
authorizes the board to decide if the conditions of parole have been violated. See
Utah Code Ann. § 77-27-11.
B. Denial of Right to Self-Representation
Mr. Smith next asserts that he was improperly denied the right to represent
himself. When a motion to proceed pro se is made, we review de novo whether a
constitutional violation occurred and for clear error the factual findings
underlying the district court’s decision to deny the motion. United States v.
Mackovich, 209 F.3d 1227, 1236 (10th Cir. 2000). The constitutional right to
represent oneself in a criminal trial is conditioned upon a knowing, voluntary, and
intelligent waiver of the right to be represented by counsel. Faretta v. California,
422 U.S. 806, 835 (1975). Determining whether the defendant has competently
waived his right to counsel, then, should be based on “a thorough and
comprehensive formal inquiry . . . on the record to demonstrate that the defendant
is aware of the nature of the charges, the range of allowable punishments and
possible defenses, and is fully informed of the risks of proceeding pro se.”
United States v. Willie, 941 F.2d 1384, 1388 (10th Cir. 1991). The competence of
a defendant’s waiver of the right to counsel depends only on his competence in
waiving that right, however, not on whether he is competent to represent himself
at trial. Godinez v. Moran, 509 U.S. 389, 399 (1993). Indeed, the Supreme Court
has explained that a defendant’s technical legal knowledge is not relevant to
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whether he is competent to waive the right to counsel; therefore, a criminal
defendant’s ability to defend himself is inconsequential to whether he is
competent to make that choice for himself. Id. at 400.
Whether a defendant knowingly, intelligently, and voluntarily relinquished
his right to counsel, however, is only one factor in determining whether the
district court unconstitutionally denied him his right to self-representation. We
have also held that, in order to invoke the right to self-representation, a defendant
must do so unequivocally and in a timely fashion. Mackovich, 209 F.3d at 1236.
In addition, the Supreme Court has noted that the defendant must be “able and
willing to abide by rules of procedure and courtroom protocol.” McKaskle v.
Wiggins, 465 U.S. 168, 173 (1984). With this in mind, we turn to the
circumstances of Mr. Smith’s two requests to proceed pro se.
On May 1, 2003, six days before trial was scheduled to begin, Mr. Smith
told the District Court that he was not getting along with his appointed attorneys.
The District Court asked Mr. Smith if he was asking to represent himself. Mr.
Smith stated that he did not have the education to represent himself and simply
wanted new counsel because he did not agree with their legal and trial strategy.
The District Court refused this request, explaining to Mr. Smith that his attorneys
had decades’ worth of experience trying federal criminal cases, that the District
Court had made the unusual decision to appoint him two attorneys (rather than
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only one) due to the complexity of the charges against him, and that the District
Court had—for the first time in any case before it—given his counsel the
assistance of a paralegal to help them prepare for trial. The last two decisions,
the District Court pointed out to Mr. Smith, were made because his attorneys had
requested them and, being effective advocates, had convinced the court that they
were necessary. The District Court told Mr. Smith that his attorneys had worked
almost exclusively on his case for nearly a year, and that it would take a new
attorney months to catch up.
Mr. Smith was not satisfied with the District Court’s explanation, however,
and told the court that he would not communicate further with his lawyers—not
even to inform them who to contact in order to get street clothes to wear at trial.
The District Court told Mr. Smith that it was not in his best interest to appear in
his prison jumpsuit in front of the jury, but he still refused to speak to his
attorneys, stating that “I don’t have any attorneys.” He also indicated that he
might have to be disruptive in trial in order to properly defend himself. The
District Court construed this last statement as a request to represent himself and
began eliciting information from Mr. Smith. Through that colloquy, the court
learned that Mr. Smith is a high school graduate with no college education; he has
had no formal legal study; he has never represented himself previously; he has
never represented anyone else; he has little knowledge of the Federal Rules of
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Evidence and is unfamiliar with Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993); and he has had no formal study of the rules of criminal
procedure. The District Court also noted that a RICO prosecution is complicated
and that fifty-two witnesses were going to be called to testify in his prosecution.
Finally, the District Court found that Mr. Smith’s decision to proceed pro se was
“dictated by emotion.” The District Court then refused to allow Mr. Smith to
represent himself, stating “I find that you cannot represent yourself, that you are
not capable of representing yourself because of your inability to handle these
kinds of complex issues.”
While we agree with Mr. Smith that his knowledge of the law and his
ability to represent himself have no bearing on his choice to proceed pro se, see
Faretta, 422 U.S. at 834, several other reasons support the District Court’s
decision. First, “[t]his court ‘will indulge in every reasonable presumption
against waiver.’” United States v. Taylor, 113 F.3d 1136, 1140 (10th Cir. 1997).
This requirement not only “protect[s] against an inadvertent waiver of the right to
counsel by a defendant’s occasional musings on the benefits of self-representation
. . . . [but] also prevents a defendant from taking advantage of and manipulating
the mutual exclusivity of the rights to counsel and self-representation.”
Mackovich, 209 F.3d at 1236 (internal quotations and citations omitted). Hence,
“we . . . ascribe a ‘constitutional primacy’ to the right to counsel because this
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right serves both the individual and collective good, as opposed to only the
individual interests served by protecting the right of self-representation.” Id. at
1237.
Second, “[w]e have repeatedly shown concern with the use of the right to
waive counsel as a ‘cat and mouse’ game with the courts.” United States v.
Reddeck, 22 F.3d 1504, 1510 (10th Cir. 1994). The record shows that in asking
the District Court to represent himself, Mr. Smith refused to speak to his
attorneys altogether—even in front of the presiding judge and even to the extent it
meant he would have to wear his prison clothing to his own trial to his own
detriment. Mr. Smith also threatened to disobey the court’s instructions not to
speak during trial, after which the District Court intimated that Mr. Smith was
intending only to continue the case and delay the prosecution. Mr. Smith’s
request, therefore, falls into this “cat and mouse” game category. Indeed, the
record illustrates that Mr. Smith was not “able and willing to abide by rules of
procedure and courtroom protocol.” McKaskle, 465 U.S. at 173.
Third, the District Court also noted that Mr. Smith’s “very late request”
was untimely. See Mackovich, 209 F.3d at 1236. While we have never
determined precisely when a request to proceed pro se becomes untimely, we have
found waiver when a defendant failed to assert the right clearly until six days
before trial—which is the exact circumstance we face here. United States v.
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Bennett, 539 F.2d 45, 51 (10th Cir. 1976). We conclude, then, that in this case
Mr. Smith’s request to represent himself was untimely. Although the jury had not
yet been impaneled, Mr. Smith asserted his right to self-representation six days
before trial in a case that had been going on for nearly a year, that had already
been continued, and that involved complex issues that would mandate another
lengthy continuance to allow Mr. Smith to prepare for his own defense.
Based on our review of Mr. Smith’s behavior and statements during his
request to proceed pro se, we conclude that the District Court did not err when it
found that Mr. Smith did not intend to abide by courtroom decorum and that his
request was not timely made. For similar reasons we find Mr. Smith’s subsequent
request to represent himself made on May 5, 2003 untimely as well. Therefore,
Mr. Smith was not unconstitutionally denied his right to self-representation.
C. Denial of Evidentiary Hearing
Mr. Smith next asserts he was improperly denied an evidentiary hearing.
During a pretrial hearing, Mr. Smith’s attorneys argued that FBI Special Agent
Juan Becerra had entered Mr. Smith’s cell at the Utah State Prison when he was
not in it and removed and photocopied several documents, including allegedly
privileged documents relating to defense strategy and discussions between Mr.
Smith and his counsel. They contended that this conduct violated Mr. Smith’s
Sixth Amendment right to the effective assistance of counsel and to a fair trial.
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Mr. Becerra happened to be in the courtroom during this pretrial hearing, so the
District Court held an impromptu evidentiary hearing on the matter. Mr. Becerra
testified that he had removed documents from Mr. Smith’s cell but that he was
only trying to find a sample of his handwriting identifying him as “King
Seagram.” He testified further that he did not see or remove any legal
documents, and he did not turn any such documents over to the prosecutors. A
prosecutor then proffered that the Government had not received any documents
of that type. Nonetheless, the District Court ordered Mr. Becerra to turn over all
documents taken from Mr. Smith’s cell to defense counsel.
The District Court came back to this issue several months later and made
specific rulings on the matter. First, the court ruled that the Government could
not use any of the documents. See Weatherford v. Bursey, 429 U.S. 545, 554
(1977) (holding that no Sixth Amendment violation occurred when privileged
communications were not revealed to the prosecution and not introduced at trial
to the detriment of the defendant). Then the court found that Mr. Becerra was a
credible witness, that the purpose of the search was not to interfere with the
defense, and that everything taken from Mr. Smith’s cell had been, or would be,
turned over to him. The District Court then denied defense counsels’ request for
an additional evidentiary hearing in order to establish Mr. Becerra’s real motive
and whether sanctions should be imposed for possible Sixth Amendment
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violations.
In his pro se supplemental brief, Mr. Smith similarly argues that he was
denied an evidentiary hearing to establish that he was prejudiced by Mr.
Becerra’s actions. We review the denial of an evidentiary hearing for an abuse of
discretion. United States v. Gines, 964 F.2d 972, 977 (10th Cir. 1992). Mr.
Smith, however, does not indicate how he suffered prejudice or how he could
have established that prejudice during a second evidentiary hearing. Beyond his
own allegation, nothing in the record suggests that documents taken from his cell
were privileged or work product, were given to the Government, or were used in
trial. To the contrary, the District Court found that Mr. Becerra was a credible
witness who neither took nor distributed to others legal documents belonging to
Mr. Smith; it also ruled that nothing seized from his cell could be used at trial.
Based on our review of the record, the District Court did not abuse its discretion
in denying a further evidentiary hearing.
D. Other Arguments Concerning the Admissibility of Recorded Phone
Conversations Between Mr. Smith and Ms. Chacon
Mr. Smith’s last contention is that the telephone calls to Ms. Chacon from
the Utah State Prison that implicated him in the murder of Mr. Miera were
inadmissible. Although his attorneys stipulated to their admission, Mr. Smith
now challenges their admissibility for two reasons. First, he argues that federal
agents obtained the recordings from state officers without a warrant. Second, he
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argues that the phone calls were the property of the phone company, rather than
the Utah State Prison, and therefore the prison did not have authority to release
the recordings to federal agents. Because these arguments were not made to the
District Court, however, we review the District Court’s decision to admit the
recordings for plain error. “To constitute plain error, the district court’s mistake
must have been both obvious and substantial. The substantiality requirement of
the plain error rule embodies a requirement that the defendant prove prejudice
attributable to the error.” United States v. Dean, 76 F.3d 329, 333 (10th Cir.
1996) (internal quotations and citations omitted).
Here, even if we assume that admitting the calls into evidence constitutes
error that is plain, Mr. Smith fails to show how such an error affects his
substantial rights. Meeting this standard “usually means that the error affected
the outcome of the district court proceedings.” United States v. Cotton, 535 U.S.
625, 632 (2002) (internal quotations omitted). In this case, multiple witnesses
implicated Mr. Smith with the murder of Mr. Miera. One of those witnesses was
Ms. Chacon, the person to whom he spoke in the recorded telephone calls.
Moreover, Ms. Chacon testified as to the content of the conversations, and her
testimony was uncontroverted. Given that evidence, we conclude that Mr. Smith
fails to demonstrate that had the phone calls not been admitted the jury would
have returned a different verdict. We therefore decline to correct any alleged
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error.
VI. CONCLUSION
The Government presented sufficient evidence on every element of the
RICO conspiracy charge for a reasonable jury to find him guilty beyond a
reasonable doubt. We conclude that the District Court did not abuse its
discretion in instructing the jury on the RICO conspiracy charge. We also
conclude that the Government presented sufficient evidence on the 18 U.S.C. §
1959(a) count. Finally, we hold that Mr. Smith’s pro se arguments are without
merit. For the foregoing reasons, we AFFIRM.
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