Case: 16-60741 Document: 00514359243 Page: 1 Date Filed: 02/22/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-60741 United States Court of Appeals
Fifth Circuit
FILED
UNITED STATES OF AMERICA, February 22, 2018
Lyle W. Cayce
Plaintiff – Appellee, Clerk
v.
FRANK GEORGE OWENS, JR., also known as State Raised; ERIC GLENN
PARKER,
Defendants – Appellants.
Appeals from the United States District Court
for the Northern District of Mississippi
USDC 4:14-CR-00141
Before WIENER, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM ∗:
Defendant-Appellants Frank George Owens, Jr. and Eric Glenn Parker
bring this appeal. Parker contends that the government did not prove venue
in the Northern District of Mississippi on his counts of conviction. Owens
contends that there is insufficient evidence to support his counts of
conviction. Additional arguments are raised on appeal regarding evidentiary
admissions, jury instructions, denials of pretrial motions, and sentencing.
∗
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in
5TH CIR. R. 47.5.4.
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We affirm the judgment on all grounds, except as to Parker for Count II,
which we vacate.
I.
This case involves accusations that Parker and Owens in their
leadership roles with the Aryan Brotherhood of Mississippi (ABM) conspired
to commit racketeering activity and committed acts of violence and drug
offenses. The ABM is a state-wide organization that operates both within the
Mississippi prison system and in the “free world” outside the prison system.
ABM has a written constitution and a leadership hierarchy. The highest
level of this hierarchy is “the Wheel,” which consists of three to four leaders
referred to as “Spokes.” An order from the Wheel carries full authority
throughout the state of Mississippi. Owens and Parker were Captains in the
ABM.
At trial, Brandon Creel, who was a Spoke, testified that he and Parker
distributed ten to twenty pounds of methamphetamine from 2010 to 2012.
Creel testified that this drug trafficking was a personal business for him and
Parker and that the proceeds did not get distributed to the ABM treasury. In
2010, Parker fronted methamphetamine to a fellow ABM member, Michael
“Skip” Hudson, who subsequently avoided paying. Creel ordered that
“minutes” (a fistfight) occur between Parker and Hudson to settle the drug
debt. Hudson did not show up for the ordered minutes, which was a violation
of an ABM “direct order.” Owens then ordered ABM member James Dean
and ABM prospect Sonny Maxwell to kidnap Hudson so he could “gift wrap
him and give him to Eric Parker.”
Maxwell and Dean took Hudson to an ABM member’s house where he
was beaten by several ABM members, including Owens. Owens and two
other ABM members put Hudson in the trunk of a car and told Dean and
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Maxwell that he was taking Hudson to Parker. Later that night, Creel
received a panicked phone call from Parker saying that there had been a
“situation” and that he needed help. Creel, at this time, was the ranking
ABM officer not in prison. Parker and Owens were both present when Creel
arrived at Parker’s trailer. Parker explained that things had gotten out of
hand and that he needed help getting rid of Hudson’s body. Creel testified
that he never actually saw a body because it was rolled up in a carpet when
he arrived. He agreed to dispose of the body for Parker and Owens. The
rolled carpet containing Hudson’s body was then placed in a fifty-gallon
drum, transported back to Creel’s house, and then taken to a nearby
property. Creel then burned the drum for four or five days before tossing the
remnants into a nearby river.
Creel testified that Parker had told him that he choked Hudson to
death. According to Creel, he did not authorize Hudson’s death, and he did
not think that there was ever an ABM-authorization for the incident.
Parker’s girlfriend, Jo Kalyn Henderson, testified that Parker had said that
he and Owens strangled a man to death. Thomas Parker too testified that
Owens told him about killing Hudson.
Owens moved from the Southern District of Mississippi to the Northern
District of Mississippi where he subsequently was incarcerated and rose to
the level of Spoke with the ABM. Parker became less involved with the ABM
but never covered or removed his tattooed ABM brand. Maxwell received his
tattooed ABM brand for the kidnapping and beating of Hudson.
A federal grand jury in the Northern District of Mississippi indicted
multiple ABM members, including Owens and Parker, alleging violations of
the Racketeer Influenced and Corrupt Organizations Act (RICO) and the
Violent Crimes in Aid of Racketeering Act (VICAR). Owens was indicted on
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Count I (RICO Conspiracy); Count III (VICAR Kidnapping); Count IV
(VICAR Murder); and Count VII (VICAR Attempted Murder). Parker was
indicted on Count I (RICO Conspiracy); Count II (Conspiracy with Intent to
Distribute Methamphetamine); and Count IV (VICAR Murder). Parker and
Owens were tried and convicted in the Northern District of Mississippi on all
counts. Each timely appealed.
II.
Parker contests venue as to all three counts of conviction: (1) Count I:
RICO Conspiracy; (2) Count II: Conspiracy with Intent to Distribute
Methamphetamine; and (3) Count IV: VICAR Murder. We review venue
issues de novo. United States v. Mendoza, 587 F.3d 682, 686 (5th Cir. 2009).
A verdict will be affirmed “if, viewing all the evidence in the light most
favorable to the government, a rational jury could conclude, from the
evidence presented at trial, that the government established venue by a
preponderance of the evidence.” Id. Circumstantial evidence is sufficient to
establish venue and the evidence need only show “any single act that
initiated, perpetuated, or completed the crime.” Id.
A.
Venue was proper in the Northern District for the RICO conspiracy
count. A RICO conspiracy is a continuing offense. See Smith v. United
States, 568 U.S. 106, 111 (2013). Venue for continuing offenses is governed
by 18 U.S.C. § 3237, which allows the prosecution of the offense “in any
district in which such offense was begun, continued, or completed.” 18 U.S.C.
§ 3237(a). “To prove a RICO conspiracy, the government must establish (1)
that two or more people agreed to commit a substantive RICO offense and (2)
that the defendant knew of and agreed to the overall objective of the RICO
offense.” United States v. Posada-Rios, 158 F.3d 832, 857 (5th Cir. 1998).
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The substantive RICO provision requires that the government prove: (1) the
existence of an enterprise that affected interstate commerce; (2) the
defendant was associated with the enterprise; (3) the defendant participated
in the conduct of the enterprise’s affairs; and (4) participation constituted a
pattern of racketeering activity. See United States v. Jones, 873 F.3d 482,
489–90 (5th Cir. 2017); 18 U.S.C. § 1962(c). A pattern of racketeering activity
occurs when the defendant commits at least two predicate acts within ten
years. 18 U.S.C. § 1961(5). A conviction for RICO conspiracy pursuant to 18
U.S.C. § 1962(d) does not require that a defendant actually commit two or
more racketeering acts, only that the defendant “adopt the goal of furthering
or facilitating the criminal endeavor.” Salinas v. United States, 522 U.S. 52,
65–66 (1997). A conspiracy can exist even if some members are unaware of
the number or identities of their fellow conspirators. See United States v.
Greenwood, 974 F.2d 1449, 1457 (5th Cir. 1992).
Parker insists that the government never established that any of his
criminal activity was ABM-related or that his ABM activity in the Southern
District was related to ABM activity in the Northern District. The
government introduced evidence that Parker had a leadership role in the
ABM and that under the ABM constitution he had the power to direct the
group’s activities in the entire state. The government does not need to prove
that Parker committed an overt criminal act on behalf of the ABM. Under
the RICO conspiracy statute, it is enough to prove that Parker knew of the
ABM’s activities and agreed to facilitate the criminal enterprise. See Salinas,
522 U.S. at 65.
Parker was an ABM leader. The ABM operated throughout the state of
Mississippi. Because a RICO conspiracy is a continuing offense, the
government only had to prove by a preponderance of the evidence that the
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conspiracy was begun, continued, or completed in the Northern District. See
United States v. Nieto, 721 F.3d 357, 369 (5th Cir. 2013) (holding venue was
proper in the Western District of Texas in a RICO conspiracy case in which
the predicate acts occurred in the Northern District of Texas because the
conspiracy was centered in the Western District). ABM members committed
numerous overt acts and specific instances of racketeering activity in the
Northern District, including: the attempted murder of Jeremy Bailey in the
Marshall County Correctional Facility; the burglary of a pawnshop in
Coldwater, Mississippi; methamphetamine trafficking directed from the
Marshall County Correctional Facility; and the burglary of a pawnshop in
Corinth, Mississippi. A reasonable jury could conclude from the evidence
that the RICO conspiracy count was based on statewide activity and that
venue was therefore proper in the Northern District of Mississippi.
B.
Venue was not proper as to Parker on the methamphetamine
conspiracy count. “Venue is proper in conspiracy offenses in any district
where the agreement was formed or an overt act occurred.” United States v.
Winship, 724 F.2d 1116, 1125 (5th Cir. 1984). “In a conspiracy to possess
with intent to distribute controlled substances, the object of the conspiracy is
for the co-conspirators to profit from the purchase and selling of controlled
substances.” United States v. Niamatali, 17-40150, 2018 WL 580650, at *4
(5th Cir. Jan. 26, 2018) (citing United States v. Morris, 46 F.3d 410, 415 (5th
Cir. 1995)).
Parker insists that the evidence showed that he engaged in drug
trafficking in his personal capacity, not as an ABM member, and that no
overt act or agreement as to his drug dealing occurred in the Northern
District. The government responds that venue is proper in the Northern
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District because the ABM engaged in drug trafficking as racketeering activity
in the Northern District and Parker was an ABM leader.
The government’s evidence does not support the contention that it
advances in support of venue on this count. The evidence shows that
Brandon Creel and Parker distributed methamphetamine together and that
Parker distributed drugs to fellow ABM members, including Michael Hudson.
The uncontested evidence demonstrates that they were acting in their
individual capacities in that particular conspiracy. No evidence shows that
Parker’s proceeds from his drug sales went to the ABM treasury. 1 Likewise,
the uncontradicted evidence at trial shows that Parker’s drug-distribution
activity exclusively occurred in the Southern District and was not part of the
ABM’s drug distribution efforts in the Northern District. Accordingly, we
must vacate Count II. 2
C.
Parker also contests venue in the Northern District on the VICAR
murder count. VICAR murder consists of four elements: (1) an enterprise
1 At oral argument, the government contended for the first time that there was
testimony from Perry Mask that Parker’s drug proceeds went to the ABM treasury. Mask’s
trial testimony only stated that if the ABM loaned a funds that such member would need to
pay back a portion of an income, including drug proceeds, to the ABM treasury. Mask did
not testify that Parker’s drug proceeds went to the ABM treasury. In his testimony about
the conspiracy to distribute methamphetamine, Mask specifically testified that he did not
know Parker, that Parker had nothing to do with Mask’s drug distribution efforts, and that
“[t]hey had their own thing going down south that I didn’t have nothing to do with and I
had what I had going. He didn’t have nothing to do with what I had going.”
2 Parker’s counsel asserted for the first time at oral argument on appeal that
vacating his conviction on Count II would require that we also vacate the RICO Conspiracy
conviction on Count I because the drug conspiracy was one of Parker’s two predicate acts.
A RICO conspiracy conviction, however, does not require that the defendant have
committed two predicate acts. See Salinas, 522 U.S. at 65–66. As conceded by Parker’s
counsel at oral argument, if only Count II is vacated, we do not need to remand for
resentencing because the guideline range was calculated based on Parker’s convictions on
Counts I and IV.
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engaged in racketeering; (2) the activities affected interstate commerce; (3) a
murder; and (4) the murder was committed for payment by the enterprise or
“for the purpose of gaining entrance to or maintaining or increasing position
in an enterprise.” 18 U.S.C. § 1959(a)(1). Parker insists that even if a
murder took place, it occurred in the Southern District. We conclude that a
reasonable jury could infer that the murder was done in aid of racketeering
by a unified, state-wide organization and that venue was in the state where
the ABM primarily operated and the murder occurred. See United States v.
Wilson, 116 F.3d 1066, 1078–79 (5th Cir. 1997), vacated on other grounds by
United States v. Brown, 161 F.3d 256 (5th Cir. 1998) (en banc) (holding the
inquiry is whether a reasonable jury could infer that the violent act was
because of the defendant’s membership in a racketeering enterprise); United
States v. Jones, 873 F.3d 482, 493–95 (5th Cir. 2017) (holding on a sufficiency
of the evidence challenge that “in aid of racketeering” was proved as to only
some of the VICAR counts).
IV.
Owens challenges the sufficiency of the evidence on his four counts of
conviction: (1) Count I: RICO conspiracy; (2) Count III: VICAR kidnapping;
(3) Count IV: VICAR murder; and (4) Count VII: VICAR attempted murder.
Our review is de novo, examining whether a “reasonable trier of fact [could
have found] that the evidence established guilt beyond a reasonable doubt”
when viewing the evidence “in the light most favorable to the government.”
United States v. Michelena-Orovio, 719 F.2d 738, 742 (5th Cir. 1983)
(citations omitted).
Owens argues that the government failed to prove its case on Count I,
the RICO conspiracy, because there is no evidence that he profited from drug-
trafficking by other ABM members. The government counters that a specific
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link to ABM drug-trafficking activities is unnecessary given his leadership
role and involvement in other ABM-related criminal acts. The elements of
RICO conspiracy are: (1) an agreement to commit a substantive RICO
offense; and (2) “the defendant knew of and agreed to the overall objective of
the RICO offense.” United States v. Rosenthal, 805 F.3d 523, 530 (5th Cir.
2015). Given the evidence of Owens’s leadership role in the ABM, a
reasonable jury could have found there was sufficient evidence to prove
Owens’s involvement in a RICO conspiracy.
On Count III, VICAR kidnapping, Owens claims that there was
insufficient evidence to show his involvement in the kidnapping of Michael
Hudson. There is evidence in the record, however, from which a reasonable
jury could conclude that Owens ordered James Dean and Sonny Maxwell to
kidnap Hudson and told Maxwell that he would gain ABM membership for
the act.
Turning to Count IV, VICAR murder, Owens argues that because
Hudson’s body was not found, there is insufficient evidence to support the
VICAR murder conviction under Mississippi law. The government argues
that VICAR employs the generic definition of murder that was in effect at the
time 18 U.S.C. § 1959 was passed and does not incorporate state procedural
or evidentiary requirements; therefore, there is no requirement that humans
remains be produced in a VICAR prosecution. We need not resolve whether
VICAR requires instruction on the state’s substantive law for the offense or a
generic definition for the offense because Mississippi law does not require the
production of a body. See Miskelley v. State, 480 So. 2d 1104, 1107–08 (Miss.
1985) (stating that the fact of death may be proved by circumstantial
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evidence). There is sufficient circumstantial evidence for a reasonable jury to
conclude beyond a reasonable doubt the fact of Michael Hudson’s death. 3
There is also sufficient evidence on Count VII, VICAR attempted
murder, for a reasonable jury to find Owens guilty beyond a reasonable
doubt. The government presented evidence that Owens ordered the stabbing
of Bailey and that Ricky Jenkins received an ABM tattoo for the act.
Accordingly, there was sufficient evidence for a reasonable jury to convict
Owens on all counts.
V.
Owens and Parker appeal the denial of their mistrial motion that was
made during the prosecutor’s direct examination. We review the denial of a
motion for new trial for abuse of discretion. United States v. Runyan, 290
F.3d 223, 246 (5th Cir. 2002). The prosecutor asked a witness: “About when
was Hudson killed?” Owens and Parker contend that asking this question
was prejudicial error because the fact of Hudson’s death had not been
established. The government insisted that there was no prejudice because of
the substantial circumstantial evidence that Hudson had been killed.
A defendant has a substantial burden to establish that a prosecutor’s
comments constitute reversible error. United States v. Virgen-Moreno, 265
F.3d 276, 290 (5th Cir. 2001). “The determinative question is whether the
prosecutor’s remarks cast serious doubt on the correctness of the jury’s
3 Owens also contends that there was insufficient evidence to convict him on Count
IV because the jury was not properly instructed on the elements of corpus delicti under
Mississippi law. Corpus delicti requires: “(1) the death of the victim, and (2) the existence
of criminal agency as the cause of death.” Taylor v. State, 672 So. 2d 1246, 1272 (1996).
The jury was instructed that “a person may be convicted of murder if you find, beyond a
reasonable doubt, that the person unlawfully, and with deliberate design, killed another
human being.” The jury instruction contained both elements of corpus delicti under
Mississippi law, and the evidence was sufficient for a reasonable jury to find that both
elements were proved beyond a reasonable doubt.
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verdict.” United States v. Weast, 811 F.3d 743, 752 (5th Cir. 2016) (quoting
United States v. Davis, 609 F.3d 663, 677 (5th Cir. 2010)). Three factors
guide this analysis: “(1) the magnitude of the prejudicial effect of the
prosecutor’s remarks, (2) the efficacy of any cautionary instruction by the
judge, and (3) the strength of the evidence supporting the conviction.” Id.
Here, the objection was sustained outside the presence of the jury and no
further cautionary remark was given. However, the other factors show that
the remarks did not cast serious doubt on the correctness of the jury’s verdict.
There was sufficient evidence to establish the fact of Michael Hudson’s death,
and so, the prosecutor’s question does not cast “serious doubt” on the
correctness of the jury’s verdict.
VI.
Owens and Parker raise three issues regarding admission of evidence:
(1) the admission of co-conspirator statements, which they allege violates the
confrontation clause; (2) the admission of what they allege were racially-
charged photographs and ABM materials; and (3) the admission of
government exhibits 1–43, which they allege was error under Federal Rule of
Evidence 401. The “court reviews preserved objections to evidentiary rulings
for abuse of discretion, subject to the harmless error standard.” United
States v. Valas, 822 F.3d 228, 239–40 (5th Cir. 2016).
A.
It is settled law in our court that co-conspirator statements are non-
testimonial. See United States v. Holmes, 406 F.3d 337, 347–48 (5th Cir.
2005); Summers v. Dretke, 431 F.3d 861, 875–78 (5th Cir. 2005). Parker asks
us to revisit our precedent but has not provided a reason under the rule of
orderliness that we may do so. See Mercado v. Lynch, 823 F.3d 276, 279 (5th
Cir. 2016) (quoting Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378
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(5th Cir. 2008)) (stating under our rule of orderliness, “one panel of our court
may not overturn another panel’s decision, absent an intervening change in
the law, such as by a statutory amendment, or the Supreme Court, or our en
banc court”). In accordance with our precedent, we hold that the district
court did not abuse its discretion in admitting the co-conspirator statements. 4
B.
Both Parker and Owens urge that the district court erred in admitting
the photos of the ABM tattoos, because under Federal Rule of Evidence 403,
any probative value was outweighed by the prejudice of showing the jury
racially-charged tattoos. Parker argues that there was no probative value in
admitting the photographs because his identity was not in question and they
were not admitted for the purposes of proving an element of the crime.
Owens argues that the photographs were cumulative and prejudicial because
they inflamed the passion of the jury due to the racial nature of the tattoos,
especially given the numerous copies of the ABM constitution introduced at
trial that included similar symbols.
Parker cites to a Sixth Circuit case for the proposition that gang
affiliation evidence is not admissible if there is no connection between the
evidence and charged offense. See United States v. Ford, 761 F.3d 641, 649–
50 (6th Cir. 2014). Ford, however, supports holding that there was no error
here: It states that evidence of gang affiliation is admissible when it is
relevant to establish a relationship, such as in a conspiracy case. Id. The
4 In his reply brief, Owens for the first time asserts that the admission of Parker’s
girlfriend’s testimony that Parker confessed to her that he and Owens killed Hudson is
error under Bruton v. United States, 391 U.S. 123 (1968). Owens forfeited this ground for
appeal by failing to adequately raise the issue in his opening brief. See United States v.
Scroggins, 599 F.3d 433, 446–47 (5th Cir. 2010).
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government needed to establish that there was a relationship between
Parker’s ABM affiliation and the crimes with which he was charged.
Moreover, at trial Parker put his continued affiliation with the ABM at
issue. The government introduced the tattoos to show that Parker was still a
member of the ABM because Parker would have had to remove them
otherwise. We caution the government that racially-charged tattoos should
not be introduced into evidence to influence the jury when identity and
membership are not at issue. See Ford, 761 F.3d at 649–50 (quoting United
States v. Anderson, 333 F. App’x 17, 24 (6th Cir. 2009)) (“[G]ang affiliation
evidence ‘is inadmissible if there is no connection between the gang evidence
and the charged offense.’”). Here, however, the tattoos were relevant
evidence of Parker’s continued affiliation with ABM, so there was no error.
Owens cites an Eleventh Circuit case, United States v. Bowman, 302
F.3d 1228, 1240 (11th Cir. 2002), which held that the admission of
unredacted gang documents containing racial statements was more
prejudicial than probative. Bowman ultimately held, however, that the error
was harmless because the defendant’s substantial rights were not affected,
given the overwhelming evidence of criminal activity. Id. We caution the
government against the introduction of un-redacted evidence that includes
racial statements and racially-charged tattoos that are not probative of the
ultimate issues in the case. See id. at 1240 (holding any probative value of an
organization’s whites-only policy was outweighed by the possibility that the
jury’s verdict might have been “clouded by racial issues”).
However, even assuming arguendo that there was any error here, it
was harmless. See United States v. El-Mezain, 664 F.3d 467, 526 (quoting
Kotteakos v. United States, 328 U.S. 750, 776 (1946)) (“A nonconstitutional
trial error is harmless unless it had ‘substantial and injurious effect or
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influence in determining the jury’s verdict.’”). There was significant evidence
of Owens’s leadership in the ABM and involvement with the charges in the
indictment. Accordingly, the district court did not abuse its discretion in
admitting such evidence.
C.
Parker and Owens collectively appeal the admission of government
exhibits 1–43 at trial, urging that they are not relevant under Rule 401. The
district court did not abuse its discretion in admitting the exhibits because
they were relevant to proving the broader conspiracy with which Parker and
Owens were charged.
VII.
Parker appeals the district court’s denial of a request for a jury
instruction on withdrawal from conspiracy. A district court’s failure to give a
requested withdrawal from conspiracy instruction is reviewed for abuse of
discretion. United States v. Rojas, 812 F.3d 382, 405 (5th Cir. 2016).
A conspirator may withdraw from a conspiracy at any time, but the
timing of the withdrawal determines the crimes for which the conspirator
remains liable. United States v. Salazar, 751 F.3d 326, 330 (5th Cir. 2014).
Withdrawal is an affirmative defense, and for which the defendant has the
burden. United States v. MMR Corp. (LA), 907 F.2d 489, 499 (5th Cir. 1990).
To demonstrate withdrawal, the defendant must show that he took
affirmative acts that were inconsistent with the object of the conspiracy.
United States v. Heard, 709 F.3d 413, 428 (5th Cir. 2013). “Mere cessation of
activity in furtherance of the conspiracy is not sufficient to show withdrawal.”
Id.
The district court denied Parker’s request for a jury instruction on
withdrawal from a conspiracy because it did not believe that Parker
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committed an affirmative act signifying withdrawal. Parker argues this was
error because he stopped attending ABM meetings and participating in ABM
activities after 2011. However, merely ceasing active involvement in ABM
activity is not sufficient to show withdrawal. Even if Parker ceased activity
with the ABM, he has not met his burden to show an affirmative act
demonstrating that he withdrew from the RICO conspiracy.
VIII.
Parker also appeals the denial of two pre-trial motions: (1) a motion to
sever his trial from Owen’s trial; and (2) a motion for an expedited psychiatric
evaluation. We address the denials of these motions in turn.
A.
Parker argues the district court’s denial of his motion for severance was
prejudicial because: (1) his co-defendant, Owens, placed a Kill on Sight order
on him; (2) the proof as to Parker’s role in the RICO conspiracy only
comprised three days of the trial and the ABM as a whole was put on trial;
and (3) the co-conspirator statements would not have been admitted if there
had been a severance.
Denial of a motion to sever is reviewed “under the ‘exceedingly
deferential’ abuse of discretion standard.” United States v. Chapman, 851
F.3d 363, 379 (5th Cir. 2017) (quoting United States v. Whitfield, 590 F.3d
325, 355 (5th Cir. 2009)). Defendants charged with the same conspiracy
should generally be tried together. United States v. McCord, 33 F.3d 1434,
1452 (5th Cir. 1994). “To establish that the district court abused its
discretion in denying a motion to sever, a ‘defendant must show that: (1) the
joint trial prejudiced him to such an extent that the district court could not
provide adequate protection; and (2) the prejudice outweighed the
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government’s interest in economy of judicial administration.’” United States
v. Snarr, 704 F.3d 368, 396 (5th Cir. 2013) (internal citations omitted).
Parker’s arguments do not meet this standard. He did not explain how
a hostile co-defendant affected Parker’s ability to prepare for trial or mount a
defense. Neither has Parker cited case law stating that extreme hostility
from a co-defendant is alone sufficient to show prejudice. Nor does potential
prejudice from spillover evidence or a quantitative disparity in evidence
between co-defendants warrant severance. See United States v. Broussard,
80 F.3d 1025, 1037 (5th Cir. 1996). Moreover, the co-conspirator statements
are non-testimonial in nature and therefore would have been admissible
against Parker under Federal Rule of Evidence 801(d)(2)(E), even if the trials
had been severed. The district court, therefore, did not abuse its discretion.
B.
Parker asserts that he was prejudiced by the district court’s failure to
hold a competency hearing after he attempted suicide. The government
responds that a suicide attempt alone does not require a competency hearing.
We review the district court’s decision not to hold a competency hearing
for abuse of discretion. United States v. Mitchell, 709 F.3d 436, 440 (5th Cir.
2013). To determine whether there is “reasonable cause” to doubt a
defendant’s competence, the court considers: “(1) any history of irrational
behavior, (2) the defendant’s demeanor at trial, and (3) any prior medical
opinion on competency.” United States v. Messervey, 317 F.3d 457, 463 (5th
Cir. 2002). “[A] suicide attempt, by itself, is not necessarily sufficient to
create ‘reasonable cause’ for a competency hearing.” Mata v. Johnson, 210
F.3d 324, 330 (5th Cir. 2000).
Parker has not directed us to any evidence other than his suicide
attempt. When the officer’s responded to a report from Parker’s mother,
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Parker had already abandoned his suicide attempt, and the attempt did not
require medical attention. After initially being placed on suicide watch,
Parker repeatedly told officials he was not suicidal and was removed from the
watch. Under these circumstances the district court did not abuse its
discretion in denying Parker’s motion to hold a competency hearing.
IX.
Parker raises a generic challenge to his sentence based primarily on his
contention that venue was improper on all counts. He also asserts, without
further explanation, that he was illegally sentenced because the presentence
report violated United States v. Booker, 543 U.S. 220 (2005), and the Sixth
Amendment. We hold that Parker’s generic challenge to his sentence is not
sufficiently briefed and the argument is forfeited. See Scroggins, 599 F.3d at
446–47.
Vacating only Count II does not affect Parker’s sentencing guideline
range, as Parker’s counsel conceded at oral argument. Because we conclude
that venue in the Northern District was proper on Counts I and IV, which are
the determinative counts for calculating Parker’s guideline range, remand for
resentencing is not required. Other than as to Count II, which we vacate, we
affirm Parker’s sentence.
X.
For the foregoing reasons, we VACATE Parker’s conviction on Count II
because venue is improper in the Northern District of Mississippi. The
district court’s judgment in all other aspects is AFFIRMED.
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