UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4215
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
WILLIE MITCHELL, a/k/a Bo,
Defendant – Appellant.
No. 09-4357
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SHELTON HARRIS, a/k/a Little Rock,
Defendant – Appellant.
No. 09-4359
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SHELLY WAYNE MARTIN, a/k/a Wayne,
Defendant – Appellant.
No. 09-4361
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
SHAWN GARDNER, a/k/a Goo,
Defendant – Appellant.
Appeals from the United States District Court for the District
of Maryland, at Baltimore. Andre M. Davis, District Judge.
(1:04-cr-00029-AMD-1; 1:04-cr-00029-AMD-2; 1:04-cr-00029-AMD-3;
1:04-cr-00029-AMD-4)
Argued: May 13, 2011 Decided: June 15, 2011
Before TRAXLER, Chief Judge, and SHEDD and DUNCAN, Circuit
Judges.
Affirmed by unpublished opinion. Judge Shedd wrote the opinion,
in which Chief Judge Traxler and Judge Duncan joined.
ARGUED: Michael Lawlor, LAWLOR & ENGLERT, LLC, Greenbelt,
Maryland; Paul Martin Flannery, ROSENBERG, MARTIN & GREENBERG,
LLP, Baltimore, Maryland; Thomas Leonard Crowe, LAW OFFICES OF
THOMAS L. CROWE, Baltimore, Maryland; Adam Harris Kurland,
HOWARD UNIVERSITY SCHOOL OF LAW, Washington, D.C., for
Appellants. Robert Reeves Harding, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Sicilia
Englert, LAWLOR & ENGLERT, LLC, Greenbelt, Maryland, for
Appellant Willie Mitchell; Barry Coburn, COBURN & COFFMAN, PLLC,
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Washington, D.C., for Appellant Shawn Gardner. Rod J.
Rosenstein, United States Attorney, Michael C. Hanlon, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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SHEDD, Circuit Judge:
A jury convicted Willie Mitchell, Shelton Harris, Shelly
Wayne Martin, and Shawn Gardner of racketeering conspiracy in
violation of 18 U.S.C. § 1962(d) and, individually, of various
murders as well as drug and firearm offenses. The four
defendants worked together and depended on one another to sell
drugs, to operate a rap music business, and to rob and murder
several of their criminal associates. In this consolidated
appeal, the defendants raise a total of sixteen issues. After a
thorough review of all sixteen issues, we find none to have
merit, and we address only three evidentiary issues: the
exclusion of Herb “Coach” Lynch’s testimony, the exclusion of
Gardner’s prior state court murder conviction, and the
introduction of the defendants’ courtroom behavior and pro se
pleadings.
I.
“We review evidentiary rulings for abuse of discretion, and
such rulings are subject to harmless error review.” U.S. v.
Brooks, 111 F.3d 365, 371 (4th Cir. 1997). “In order to find a
district court's error harmless, we need only be able to say
with fair assurance, after pondering all that happened without
stripping the erroneous action from the whole, that the judgment
was not substantially swayed by the error.” Id. (internal
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citation marks omitted). With this framework in place, we turn
to each issue.
II.
First, Mitchell argues that the district court abused its
discretion in excluding the testimony of “Coach” Lynch. As a
defense to the racketeering conspiracy charge, the defendants
argued that the evidence demonstrates they were only involved in
multiple, lesser conspiracies, not a single racketeering
conspiracy. In support of this defense, Mitchell wanted Lynch
to testify as to his whereabouts during various time periods
within the racketeering conspiracy, specifically the time
Mitchell spent either incarcerated or working at the Hickey
School, a juvenile detention center. Mitchell alleges that
Lynch would have testified that during those time periods
“Mitchell had a rigorous daily schedule of school and practices
that left little time for anything else . . . and that it would
have been difficult for him to participate in a conspiracy while
he was incarcerated or working at Hickey [School].”
(Appellant’s Br. at 99.)
Prior to Lynch’s testimony, one of the jurors informed the
court that he knew Lynch as his son’s athletic mentor and
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trainer. 1 The juror saw Lynch every two days at his son’s
practices and planned to continue seeing Lynch on this schedule
throughout the trial. Based upon this information, the
government moved to excuse the juror, but the attorneys for all
four defendants opposed the motion. The court offered several
options to Mitchell’s counsel, including entering a stipulation
as to Lynch’s testimony. After Mitchell’s counsel refused these
options, the district court decided to preclude Lynch’s
testimony because the evidence was amenable to a stipulation,
all defense counsel opposed dismissing the juror, and there was
a “truly intimate relationship between this juror and this fact
witness.” (J.A. 822.)
We believe that any error in excluding Lynch’s testimony
was harmless. Lynch was not going to testify as to evidence
regarding any of the charged conduct. Moreover, Mitchell’s
counsel called substitute witnesses that provided similar
testimony. Therefore, in light of the Government’s overwhelming
evidence of guilt presented throughout the trial, there was
sufficient evidence to sustain the jury’s verdict even without
this challenged evidence.
1
During voir dire, Mitchell’s counsel did not provide
Lynch’s first name, referring to him as “Coach” Lynch. The
juror knew Lynch as “Herb Lynch, Certified Personal Trainer.”
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III.
Next, Gardner argues that the district court abused its
discretion in excluding evidence of his prior state court murder
conviction. Gardner had previously been convicted in Maryland
state court and sentenced to a life term for the murder of Tanya
Jones-Spence, one of the murders also charged in this case.
Likewise, the Government’s cooperating witness, William
Montgomery, had also testified in the state trial. Therefore,
in this trial, the district court instructed Gardner’s counsel
that when cross-examining Montgomery he could bring out the fact
that Montgomery had testified in a prior proceeding before a
jury. However, the court forbade counsel from introducing
evidence of Gardner’s conviction in that proceeding.
Only relevant evidence is admissible. Fed. R. Evid. 401,
403. Even assuming evidence of Gardner’s prior conviction was
relevant, such evidence may be excluded when its probative value
is substantially outweighed by the potential for “unfair
prejudice, confusion of the issues, or misleading the jury.”
Fed. R. Evid. 403. In this case, the district court excluded
this evidence because of its concern about confusion of the
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issues, waste of time, and the potential for prejudice to both
Gardner and the other defendants. 2
We find that the district court did not abuse its
discretion in holding that the probative value of evidence of
Gardner’s prior state conviction was substantially outweighed by
its potential for jury confusion and prejudice and, thus, should
be excluded. Presenting this jury with a previous jury’s guilty
verdict for the exact crime charged in this case would have
certainly been both prejudicial and confusing.
IV.
Finally, all four defendants argue that the district court
abused its discretion by allowing the Government to introduce
evidence of their pre-trial courtroom behavior and pro se
pleadings. Specifically, during pretrial hearings, the four
defendants repeatedly engaged in disruptive behavior through
coordinated and identical demonstrations. The defendants gave
2
Specifically, the court stated it was primarily concerned
about the prejudicial effect such evidence would have. “[O]nce
we go there [putting the conviction and sentence before the
jury], it is beyond me how in any coherent way you can maintain
innocence through a non-concession of guilt when you’ve told the
jury or had the Court tell the jury or conceded in front of the
jury that there has been a trial, Montgomery testified, a jury
listened to that evidence as well as other evidence, and found
beyond a reasonable doubt that Mr. Gardner had committed this
murder or, and/or aided and abetted in the commission of this
murder and/or conspired to commit this murder.” (J.A. 1211.)
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identical speeches rejecting the jurisdiction of the district
court over them as live “flesh and blood” men and denouncing the
Government, the district court, and their attorneys. They also
submitted identical pro se pleadings.
In its fourth superseding indictment, the Government
alleged that the racketeering conspiracy continued through the
trial and that a purpose of the conspiracy was “[p]reventing and
obstructing the arrest and prosecution of members and associates
through . . . disruption of court proceedings.” (J.A. 457-458.)
In order to prove this charge, the Government introduced the
above evidence of the defendants’ coordinated behavior. On
appeal, the defendants argue that the introduction of this
evidence violates their Sixth Amendment right to mount their own
defense.
We again conclude that, even assuming the district court
abused its discretion in admitting this evidence, any error was
harmless. The jury convicted all four defendants not only of
the racketeering conspiracy but also of multiple, substantive,
predicate counts. The evidence presented throughout the nine
week trial detailing the four defendants’ concerted activities
in furtherance of the racketeering enterprise was abundant and
sufficient to sustain the jury’s verdict even without this
challenged evidence.
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V.
For the foregoing reasons we affirm the convictions of
Willie Mitchell, Shelton Harris, Shelly Wayne Martin, and Shawn
Gardner.
AFFIRMED
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