UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4725
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RONNIE THOMAS, a/k/a Skinny Suge, a/k/a Tall Vialz, a/k/a
Rodney Thomas,
Defendant - Appellant.
No. 10-4729
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHERMAN PRIDE, a/k/a Dark Black, a/k/a DB,
Defendant - Appellant.
Appeals from the United States District Court for the District
of Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:08-cr-00086-WDQ-7; 1:08-cr-00086-WDQ-11)
Argued: May 18, 2012 Decided: July 20, 2012
Before KEENAN, WYNN, and FLOYD, Circuit Judges.
Affirmed by unpublished opinion. Judge Wynn wrote the opinion,
in which Judge Keenan and Judge Floyd concurred.
ARGUED: Arthur Samuel Cheslock, Baltimore, Maryland; Matthew W.
Greene, GREENE LAW GROUP, PLLC, Fairfax, Virginia, for
Appellants. Michael Clayton Hanlon, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Rod J.
Rosenstein, United States Attorney, Christopher Mason, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
WYNN, Circuit Judge:
Defendants Ronnie Thomas and Sherman Pride appeal their
jury trial convictions of violating the Racketeer Influenced and
Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(d), by
conspiring to participate in a racketeering enterprise (“RICO
Conspiracy”).1 Defendants challenge, among other things, the
sufficiency of the evidence for the jury’s finding that the RICO
Conspiracy included conspiracy to commit murder as an objective
and certain evidentiary determinations by the district court.
Finding no error, we affirm.
I.
Ronnie Thomas and Sherman Pride were indicted for RICO
Conspiracy for their participation in the Baltimore gang known
as the Tree Top Piru, a subset of the Bloods gang (“TTP”). At
trial, the Government’s evidence showed that TTP was an
organization engaged in drug trafficking, robbery, beatings, and
murder, and that Defendants were high-ranking TTP members.
Steve Willock, a government witness and TTP leader,
testified that TTP’s primary objectives included supporting drug
transactions inside prisons; collecting debts owed on those drug
1
Pride was also convicted of conspiracy to distribute 50
grams or more of crack cocaine. This conviction, however, is
not the subject of this appeal.
3
transactions; carrying out acts of violence against TTP rivals;
and generally expanding TTP’s influence. As TTP’s leader,
Willock issued “open letters,” which the entire TTP membership
was encouraged to read. The letters discussed TTP’s history and
structure, and identified the agenda and obligations of TTP’s
leaders and members. In his open letters and testimony, Willock
identified Thomas (along with others) as controlling West
Baltimore and Pride as controlling the eastern shore of
Maryland, which meant that the Defendants had the power to give
orders within their geographic area and decide whether to have a
person killed. In one letter, Willock conveyed a conversation
between himself and Thomas. Thomas had asked Willock’s
permission to conduct a revenge killing against someone who had
killed another TTP member.
Van Sneed, a government witness and another one of TTP’s
high-ranking members, testified about Thomas’s participation in
TTP. Sneed testified that Thomas had attended TTP meetings;
paid and collected dues, some of which was used to purchase guns
for the gang; and agreed to assist Sneed in selling heroin.
Sneed also testified about the so-called Stop Snitching videos.
Sneed appeared in one such video and named people for
“snitching” to the police. The Government presented clips of
the Stop Snitching 2 video (“Stop Snitching 2”), in which Thomas
stars as a rapper and references his TTP membership and illegal
4
activities. The Government played recordings of calls in which
Thomas made arrangements with other TTP members to assault and
rob a storeowner who was selling Stop Snitching 2 without his
permission.
The Government also presented extensive evidence of other
TTP members’ criminal activities. Taken together, the
Government’s evidence established that TTP was a drug-
trafficking organization whose members used violence to acquire
and preserve drug-trafficking territory, and that Defendants had
participated in TTP’s affairs with knowledge of TTP’s criminal
purposes with the intent that those purposes be carried out.
Following eight days of testimony, a jury convicted
Defendants of RICO Conspiracy, and Pride of the additional
charge of narcotics conspiracy. The jury found that the RICO
Conspiracy included narcotics trafficking offenses, robbery, and
conspiracy to commit murder. The district court sentenced
Thomas to 235 months of imprisonment, and Pride to 292 months of
imprisonment. These appeals followed.
II.
A.
Defendants argue that the Government’s evidence was
insufficient to sustain the jury’s finding that the RICO
5
Conspiracy included conspiracy to commit murder as an enterprise
objective. We disagree.
1.
This Court reviews the denial of a motion challenging the
sufficiency of the evidence de novo. United States v.
Penniegraft, 641 F.3d 566, 571 (4th Cir. 2011). “In reviewing
the sufficiency of the evidence following a conviction, the
court is to construe the evidence in the light most favorable to
the government, assuming its credibility, and drawing all
favorable inferences from it, and will sustain the jury’s
verdict if any rational trier of fact could have found the
essential elements of the crime charged beyond a reasonable
doubt.” Id. at 571-72. “If there is substantial evidence to
support the verdict, after viewing all of the evidence and the
inferences therefrom in the light most favorable to the
Government, then we must affirm.” United States v. Murphy, 35
F.3d 143, 148 (4th Cir. 1994). “[I]n the context of a criminal
action, substantial evidence is evidence that a reasonable
finder of fact could accept as adequate and sufficient to
support a conclusion of a defendant’s guilt beyond a reasonable
doubt.” United States v. Burgos, 94 F.3d 849, 862 (4th Cir.
1996) (en banc).
6
A defendant bringing a sufficiency challenge bears a “heavy
burden.” United States v. Hoyte, 51 F.3d 1239, 1245 (4th Cir.
1995). In evaluating the sufficiency of evidence, this Court
does not review the credibility of witnesses and assumes the
jury resolved all contradictions in the testimony in favor of
the Government. United States v. Foster, 507 F.3d 233, 245 (4th
Cir. 2007). “Reversal for insufficient evidence is reserved for
the rare case ‘where the prosecution’s failure is clear.’”
United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997)
(quoting Burks v. United States, 437 U.S. 1, 17 (1978)).
2.
To convict the Defendants of RICO Conspiracy,2 the
Government was required to prove beyond a reasonable doubt that:
• a criminal enterprise existed;
• the enterprise affected interstate or foreign
commerce;
• Defendants were associated with or employed by
the enterprise;
2
Under 18 U.S.C. § 1962(c), it is 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.” A person may also be charged, as Defendants were in
the present case, under 18 U.S.C. § 1962(d) for conspiring to
violate § 1962(c) (i.e., RICO Conspiracy). See Salinas v.
United States, 522 U.S. 52, 65 (1997).
7
• the enterprise engaged in a pattern of
racketeering activity;3 and
• Defendants knowingly and willfully became members
of the conspiracy to further the unlawful
purposes of the enterprise.
See J.A. 2342, 2355-56, 2521. Notably, Defendants do not
challenge the sufficiency of the Government’s evidence regarding
TTP’s status as a criminal enterprise, TTP’s participation in
interstate or foreign commerce, Defendants’ association with or
employment by TTP, or Defendants’ knowing and willing membership
in TTP to further its unlawful purposes. Defendants also do not
challenge the sufficiency of the Government’s evidence as to the
jury’s finding that the RICO Conspiracy included robbery and
narcotics trafficking as objectives. Rather, Defendants’
sufficiency argument is limited to the jury’s finding that
conspiracy to commit murder was a TTP objective.
Our review of the record reveals substantial evidence that
the RICO Conspiracy included conspiracy to commit murder as an
enterprise objective. Willock testified that TTP members
advanced in TTP rank by “putting in work,” which he described as
meaning, among other things, committing violent acts such as
“killing somebody.” J.A. 539. Willock further testified that
Defendants were “leaders” within TTP with the power to “put
3
A “pattern” requires proof of at least two predicate acts
of racketeering activity. See 18 U.S.C. § 1961(5).
8
somebody on the menu,” which he described as meaning that
Defendants could determine, among other things, when “somebody
needs to die.” J.A. 498-99. Similarly, Sneed testified that
TTP purchased guns to do “anything that needed to be done,
whether it was a murder, a robbery, whatever.” J.A. 1359.
Sneed also corroborated Willock’s testimony that the term
“putting in work” “mean[t] just about anything, from standing
out there selling [drugs] . . . to robbing, to killing, to
whatever.” J.A. 1396. Finally, Pride described TTP’s color
symbology in a letter entered into evidence: “[The color
burgundy] just means that we are anybody killers. . . . Any hood
that disrespects [us] will get it.” J.A. 1641. As such, the
testimony of Willock and Sneed, as well as the letter from
Pride, evidenced the criminal objectives of TTP, which included
murder.
Defendants attempt to rely on Richardson v. United States,
526 U.S. 813, 819 (1999), for the proposition that the
Government must prove specific acts of murder to sustain a
conviction for RICO Conspiracy with conspiracy to commit murder
as an enterprise objective. In Richardson, the Supreme Court
held that a violation of 21 U.S.C. § 848(a), the continuing
criminal enterprise statute, required a jury to find specific
criminal violations committed by the defendant as part of a
“continuing series of violations.” 526 U.S. at 815. But the
9
statute at issue in Richardson, 21 U.S.C. § 848(a), is not at
issue here. Instead, 18 U.S.C. § 1962(d) controls and Salinas
v. United States, 522 U.S. 52 (1997), is the case that directly
addresses the application of that statute.
In Salinas, the Supreme Court explained that “[t]here is no
requirement of some overt act or specific act” to be proven for
a RICO Conspiracy conviction. 522 U.S. at 63. Instead, a RICO
Conspiracy may “exist even if a conspirator does not agree to
commit or facilitate each and every part of the substantive
offense.” Id. The “partners in the criminal plan must [only]
agree to pursue the same criminal objective” regardless of
whether that criminal objective is ever started or carried out.
Id.; see also United States v. Yannotti, 541 F.3d 112, 129 (2d
Cir. 2008) (“Indeed, to secure [the defendant’s] conviction for
RICO conspiracy, the government was not required to prove the
actual commission of a single predicate act by [the defendant]
or any other conspirator.”); United States v. Browne, 505 F.3d
1229, 1263-64 (11th Cir. 2007) (noting that RICO Conspiracy
charges do not require proof of an overt act); United States v.
Corrado, 286 F.3d 934, 937 (6th Cir. 2002) (“Unlike the general
conspiracy statute, § 1962(d) requires no ‘overt or specific
act’ in carrying the RICO enterprise forward.”).
Defendants concede that “numerous government witnesses
testified that the TTP Bloods employed murder as either one of
10
the group’s objectives or as a means to accomplish an
objective.” Appellants’ Br. at 55. We agree and, accordingly,
conclude that the Government’s evidence was sufficient for a
reasonable juror to find that TTP’s racketeering activities
included conspiracy to commit murder.4
B.
Defendants next argue that the district court erred in
allowing Detective Christopher Hodnicki to testify as an expert
in the history of the gang known as the Bloods. First,
Defendants challenge Hodnicki’s qualifications and methodology.
Second, Defendants allege that Hodnicki’s testimony was a
conduit for testimonial hearsay, thereby violating their
Confrontation Clause rights. We disagree.
4
Likewise, Defendants’ contention that the district court
abused its discretion in instructing the jury on murder and
conspiracy to commit murder as possible objectives of the RICO
Conspiracy is also without merit. For the reasons stated above
as to why the Government’s evidence was sufficient to sustain
the jury’s finding that the RICO Conspiracy included conspiracy
to commit murder as an objective, we also conclude that the
challenged instructions were supported by an evidentiary
foundation. See, e.g., United States v. Moye, 454 F.3d 390, 403
(4th Cir. 2006) (en banc) (Motz, J., concurring) (“A court may
only give a requested jury instruction if an evidentiary
foundation for the instruction exists.”). As such, the district
court did not err in denying Defendants’ motion to strike.
11
1.
“We review for abuse of discretion the district court’s
decision to admit expert testimony under Federal Rule of
Evidence 702.” United States v. Wilson, 484 F.3d 267, 273 (4th
Cir. 2007); see also Kumho Tire Co. v. Carmichael, 526 U.S. 137,
158 (1999) (“Rule 702 grants the district judge the
discretionary authority, reviewable for its abuse, to determine
reliability in light of the particular facts and circumstances
of the particular case.”). “A court has abused its discretion
if its decision is guided by erroneous legal principles or rests
upon a clearly erroneous factual finding.” United States v.
Johnson, 617 F.3d 286, 292 (4th Cir. 2010) (quotation marks
omitted). Put another way, an abuse of discretion only occurs
when “the [district] court acted arbitrarily or irrationally in
admitting evidence.” Penniegraft, 641 F.3d at 574. “We review
de novo, however, an evidentiary ruling implicating the
Confrontation Clause.” United States v. Summers, 666 F.3d 192,
197 (4th Cir. 2011).
Rule 702 of the Federal Rules of Evidence allows for
opinion testimony by an expert. According to the Rule,
If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify
thereto in the form of an opinion or otherwise, if (1)
the testimony is based upon sufficient facts or data,
12
(2) the testimony is the product of reliable
principles and methods, and (3) the witness has
applied the principles and methods reliably to the
facts of the case.
Fed. R. Evid. 702. In Daubert v. Merrell Dow Pharm., Inc., 509
U.S. 579 (1993), the Supreme Court, in addressing the
admissibility of “scientific expert evidence,” held that Rule
702 imposes a “gatekeeping” obligation on the trial judge to
“ensure that any and all scientific testimony . . . is not only
relevant, but reliable.” 509 U.S. at 589; see also Anderson v.
Westinghouse Savannah River Co., 406 F.3d 248, 261 (4th Cir.
2005) (“When a party seeks to admit any expert testimony, the
district court’s obligation is gate-keeping.” (quotation marks
omitted)). “[I]n considering the admissibility of testimony
based on some ‘other specialized knowledge,’ Rule 702 generally
is construed liberally.” United States v. Hankey, 203 F.3d
1160, 1168 (9th Cir. 2000) (affirming admission of expert
testifying on gang activities, colors and signs).
2.
Here, Defendants assert that Hodnicki’s training and
experience were insufficient for his qualification by the
district court as an expert in gang history. Defendants point
to the fact that Hodnicki lacked specialized degrees and that
13
his knowledge was largely based on his experience working with
gangs.
Our review of the record, however, reveals that Hodnicki’s
testimony—which related to the history and organization of the
Bloods gang, how TTP related to the overall gang hierarchy, and
gang symbology and colloquialisms—was only admitted into
evidence after an extensive voir dire into Hodnicki’s
qualifications as an expert. This examination revealed that
Hodnicki had been a police officer for ten years, with
experience for three years as a detective with the Gang
Enforcement Team of the Criminal Intelligence Section.
Additionally, upon joining the Gang Enforcement Team, Hodnicki
received specialized training and attended classes on gangs and
their operations. As a member of the Gang Enforcement Team,
Hodnicki conducted field interviews with gang members and
conducted over 6,000 hours of surveillance in the field,
observing gangs and gang activity. Hodnicki also taught classes
at a local community college regarding his knowledge and
experience as a gang investigator.
Given the type of expert testimony proffered by the
Government in this case, we conclude that the district court’s
assessment of its relevance and reliability was sufficiently
diligent. “The Daubert factors (peer review, publication,
potential error rate, etc.) simply are not applicable to this
14
kind of testimony [from a gang expert], whose reliability
depends heavily on the knowledge and experience of the expert,
rather than the methodology or theory behind it.” Hankey, 203
F.3d at 1168; see also Kumho Tire, 526 U.S. at 150 (“In [some]
cases, the relevant reliability concerns may focus upon personal
knowledge or experience.”). Here, the extent of Hodnicki’s
knowledge and experience was sufficiently probed, and therefore
the district court did not abuse its discretion.
3.
Defendants also allege that Hodnicki’s testimony, which was
based, among other things, upon interviews with gang members,
contained testimonial hearsay in violation of their
Confrontation Clause rights under the Sixth Amendment. See
Crawford v. Washington, 541 U.S. 36 (2004). We recently
rejected this same argument. See United States v. Palacios, 677
F.3d 234, 242-43 (4th Cir. 2012). As we stated in Palacios,
while testimonial hearsay raises special concerns because it
implicates a defendant’s constitutional rights, “it in no way
prevents expert witnesses from offering their independent
judgments merely because those judgments were in some part
informed by their exposure to otherwise inadmissible evidence.”
Id. at 243 (quotation marks omitted). Here, as in Palacios, we
15
conclude that Hodnicki’s testimony did not violate Defendants’
Confrontation Clause rights.
C.
Finally, Thomas contends that the district court erred when
it denied his motion to suppress the Stop Snitching 2 video
pursuant to Rules 403 and 404(b) of the Federal Rules of
Evidence. We disagree.
1.
A district court’s determination of the admissibility of
evidence is reviewed for an abuse of discretion. Penniegraft,
641 F.3d at 574. Generally “any evidence which tends to make
the existence of a fact of consequence to an issue in the case
‘more probable or less probable’ than without the evidence is
relevant and therefore, as a general proposition, admissible.”
United States v. Queen, 132 F.3d 991, 994 (4th Cir. 1997)
(quoting Fed. R. Evid. 401, 402). However, even relevant
evidence may be excluded “if its probative value is
‘substantially outweighed’” by the possibility of unfair
prejudice, confusion, delay, or redundancy. Id. (quoting Fed.
R. Evid. 403). Rule 403 requires that evidence be excluded if
it is “unfairly prejudicial, and, even then, only if the unfair
prejudice substantially outweighs the probative value of the
16
evidence.” United States v. Byers, 649 F.3d 197, 210 (4th Cir.
2011) (quotation marks omitted) (emphasis in original).
Against this backdrop, Rule 404(b) prohibits evidence of
“‘other crimes, wrongs, or acts'” solely to prove a defendant’s
bad character, but “[s]uch evidence . . . may ‘be admissible for
other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident.’” United States v. Basham, 561 F.3d 302, 326 (4th
Cir. 2009) (quoting Fed. R. Evid. 404(b)). “Rule 404(b) is a
rule of inclusion, admitting all evidence of other crimes or
acts except that which tends to prove only criminal
disposition.” Byers, 649 F.3d at 206 (internal quotation marks
omitted).
2.
Here, Stop Snitching 2 was relevant to Thomas’s membership
in TTP, as well as to TTP’s activities and objectives. The
excerpts shown to the jury included a clip of Thomas rapping
about being a member of the Bloods and his drug dealing, as well
as a scene of Thomas handling a firearm. Willock wrote numerous
letters to TTP members regarding Stop Snitching 2’s production
and dissemination. Willock also testified that TTP planned to
profit from the video by trying to “get Tree Top more
recognition through distribution of the DVD.” J.A. 532.
17
Additionally, a wiretapped conversation between Thomas and
another TTP member discussed the production of Stop Snitching 2
and its anticipated earnings. As such, the excerpts of Stop
Snitching 2 were directly probative of the charges against
Thomas.
Moreover, Thomas’s contention that the probative value of
Stop Snitching 2 was substantially outweighed by its unfair
prejudice is without merit. To require the exclusion of
evidence on a prejudice theory, Rule 403 requires more than a
mere showing of “general prejudice.” See Byers, 649 F.3d at
210. Rather, evidence must be unfairly prejudicial, and the
probative value must be substantially outweighed by that unfair
prejudice. Id. Rule 403 requires this heavier showing because
all incriminating evidence is prejudicial. See United States v.
Siegel, 536 F.3d 306, 319 (4th Cir. 2008). Although Stop
Snitching 2 did show Thomas talking about being a gang member,
discussing drugs, and handling a firearm, there is no unfair
prejudice in showing Thomas on a video discussing and doing the
very things with which he was charged and as to which other
substantial evidence had also been presented. Therefore, we
find no abuse of discretion in the district court’s denial of
Thomas’s motion to suppress.
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III.
For the foregoing reasons, we affirm.
AFFIRMED
19