United States v. Antarious Caldwell

USCA11 Case: 19-15024 Document: 175-1 Date Filed: 08/16/2023 Page: 1 of 43 [PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 19-15024 ____________________ UNITED STATES OF AMERICA, Plaintiﬀ-Appellee, versus ANTARIOUS CALDWELL, a.k.a. Fat, a.k.a. Phat, KEVIN CLAYTON, ALONZO WALTON, a.k.a. Spike, VANCITO GUMBS, DONALD GLASS, a.k.a. Smurf, a.k.a. Dred, USCA11 Case: 19-15024 Document: 175-1 Date Filed: 08/16/2023 Page: 2 of 43 2 Opinion of the Court 19-15024 Defendants-Appellants. ____________________ Appeals from the United States District Court for the Northern District of Georgia D.C. Docket No. 1:16-cr-00145-TWT-JKL-39 ____________________ Before WILLIAM PRYOR, Chief Judge, JILL PRYOR, Circuit Judge, and COOGLER,* Chief District Judge. WILLIAM PRYOR, Chief Judge: This appeal arises from a multiple-count indictment against dozens of members of the Gangster Disciples. Five of them, Alonzo Walton, Kevin Clayton, Donald Glass, Antarious Caldwell, and Vancito Gumbs, appeal their convictions and sentences follow- ing a joint trial. Some argue that the district court should have sup- pressed wiretap evidence against them. Some argue that their en- hanced sentences under the Racketeer Inﬂuenced and Corrupt Or- ganizations Act violate the Sixth Amendment because the jury failed to ﬁnd that the conspiracy involved murder. Several argue that the district court abused its discretion when it refused to play a video about unconscious bias, excluded a professor of social work’s expert opinion testimony, secured the defendants with * Honorable L. Scott Coogler, Chief United States District Judge for the North- ern District of Alabama, sitting by designation. USCA11 Case: 19-15024 Document: 175-1 Date Filed: 08/16/2023 Page: 3 of 43 19-15024 Opinion of the Court 3 ankle restraints at trial, allowed the prosecution to store eviden- tiary ﬁrearms in the courtroom, and questioned a witness. And they also bring individual procedural and sentencing challenges. We vacate one of Caldwell’s convictions and his sentence due to an intervening precedent, but we otherwise aﬃrm the convictions and sentences. I. BACKGROUND We divide our review of the background into three parts. First, we explain the Gangster Disciples gang and the defendants’ roles within it. Second, we describe the crimes relevant to this ap- peal. Third, we recount the relevant parts of the pretrial proceed- ings, trial, and sentencing. A. The Gangster Disciples The Gangster Disciples began as a loosely aﬃliated network of street gangs in Chicago but later became a hierarchical national organization. At the times relevant to this appeal, that hierarchy consisted of a “Chairman” and “national board” for the country, “Governors of Governors” in charge of multi-state regions, “Gov- ernors” in charge of each state, “Regents” in charge of counties, and “Coordinators” in charge of municipal-level divisions or, in larger cities, subdivisions called “counts” or “decks.” Other leaders had speciﬁc portfolios within the gang. For example, the “Chief Enforcer” managed a team of “Enforcers” who exacted punish- ments for violations of the gang’s rules, such as the prohibition against cooperating with the police. USCA11 Case: 19-15024 Document: 175-1 Date Filed: 08/16/2023 Page: 4 of 43 4 Opinion of the Court 19-15024 The investigation that led to this trial and appeal focused on the activities of a group called the “Hate Committee.” The com- mittee served as an “enforcement” team for the gang in Georgia. Donald “Smurf ” Glass led the Hate Committee. The defendants held a variety of posts within the Georgia Gangster Disciples. Alonzo “Spike” Walton was Governor. In that role, he approved all “greenlights” of violent acts by subordinates. He “stamped”—that is, approved the formation of—the Hate Committee and integrated it in his chain of command. Kevin “K.K.” Clayton was Chief Enforcer, responsible for countering in- ternal threats. In 2013, he earned the dubious distinction of “En- forcer of the Year.” Clayton had the authority to issue a “green- light” to punish a Disciple for a violation of the gang’s rules. Don- ald “Smurf ” Glass was the leader of the Hate Committee and, in Clayton’s words, his “right hand guy.” In that role, he maintained a close relationship with committee members. For example, one member, Quantavious Hurt, lived in his home. Antarious “Fat” Caldwell was a committee member. Finally, Vancito Gumbs, a po- lice oﬃcer, was a Disciple who worked directly with Clayton. Quantavious Hurt identiﬁed Gumbs as a Disciple, and another po- lice oﬃcer said that Gumbs confessed to being a member and had Disciple tattoos. A month after the crimes we recount below, Gumbs expressed remorse for being a “gd hitman” in a text to his girlfriend. In November 2013, the Federal Bureau of Investigation se- cured judicial authority to wiretap Walton’s phone. In the required USCA11 Case: 19-15024 Document: 175-1 Date Filed: 08/16/2023 Page: 5 of 43 19-15024 Opinion of the Court 5 aﬃdavit explaining the necessity for the wiretap, Agent William K. Murdock explained that no human source had been able to inﬁl- trate the gang and secure the trust of key members, though three conﬁdential human sources and four cooperating defendants had provided some helpful information. In January 2014, the Bureau requested a 30-day extension of the wiretap. Agent Murdock pro- vided a similar aﬃdavit, explaining that alternatives to wiretapping were not viable and that “no viable conﬁdential human sources have been identiﬁed that are able to inﬁltrate the gang.” He did not discuss the speciﬁc human sources he had mentioned in the ﬁrst aﬃdavit. The district judge approved the extension. B. Relevant Crimes The indictment charged an array of criminal activities. We narrate those relevant to this appeal. And we review them in chron- ological order. 1. Carjacking of Mildred Frederick Alonzo Walton volunteered to help his friend Mildred Fred- erick after she damaged her car by failing to put oil in it. His “help” was insurance fraud: Walton destroyed the car, and Frederick re- ported it stolen. Frederick started dating Walton’s friend Laderris Dickerson. But in March 2014, after Frederick and Dickerson started having troubles with their relationship, Dickerson and Walton decided to rob Frederick of the proceeds from the insurance fraud and other savings. USCA11 Case: 19-15024 Document: 175-1 Date Filed: 08/16/2023 Page: 6 of 43 6 Opinion of the Court 19-15024 Later that month, Walton and Dickerson lured Frederick to a parking lot with the promise that someone would meet her there to sell her a car for a good price. The co-conspirators arranged for another Disciple whom Dickerson did not know to arrive at the scene and demand Frederick’s cash and rental car at gunpoint. Wal- ton assured Dickerson that he would use his authority as Governor to ensure that Frederick would not be harmed. The plan succeeded. Frederick and Dickerson drove to the site, and the robber demanded Frederick’s money at gunpoint. When Frederick said she had only ﬁve dollars, Dickerson revealed that $14,000 was in the glove compartment. Frederick then at- tacked the robber and wrestled with him for a few seconds before he took control of her car, kicked her out of it while it was moving, and sped away. Walton, Dickerson, and the robber split the pro- ceeds. Dickerson and Frederick surmised that the robber had been instructed not to use the gun because he had allowed Frederick to resist without shooting her. 2. Attempted Robbery of Eric Wilder On June 27, 2015, Caldwell and another Hate Committee member invaded Eric Wilder’s home to rob him of drugs and money. The robbers knocked on Wilder’s door and pointed a gun at him when he cracked it open. Wilder slammed the door shut. Caldwell ﬁred through the door and hit Wilder in the chest. The robbers then forced their way into the apartment, stole a small amount of marijuana, and ﬂed. USCA11 Case: 19-15024 Document: 175-1 Date Filed: 08/16/2023 Page: 7 of 43 19-15024 Opinion of the Court 7 3. Murder of DeMarco Franklin Hate Committee member Quantavious Hurt murdered De- Marco Franklin on July 1, 2015. Hurt sparked a dispute with mem- bers of the Bloods gang when he leaned on one of their cars at a gas station. After members of the rival gang opened ﬁre, Hurt ﬂed to a friend’s house. Hurt later went to Glass’s home to inform him of the situation. Glass said that the committee needed to “do something about the situation”—per Hurt’s later trial testimony—because Hurt’s ﬂight made the committee look bad. Glass apparently pre- ferred that Hurt’s colleague “handle” the situation—Hurt took this to mean “shoot somebody.” But Hurt also understood Glass to al- low Hurt to “handle” the situation if he wanted to. Glass gave Hurt a symbolic black ﬂag, to remove any ﬁngerprints from the gun he would use and to cover his face. Hurt returned to the gas station and found DeMarco Frank- lin, whom he believed was involved in the ﬁrst incident. Hurt fol- lowed Franklin and murdered him in front of his girlfriend and her four-year-old child. When Hurt reported back, Glass was “in shock” that Hurt had personally settled the score, but also said that Hurt “did what [he was] supposed to do.” Hurt later learned that Franklin had nothing to do with the earlier incident. 4. Stone Mountain Inn and Central Avenue Shootings The spree of violence continued two days later on July 3. Glass planned a robbery of the Stone Mountain Inn, where a drug dealer named “Zay” based his operations. Zay was a member of USCA11 Case: 19-15024 Document: 175-1 Date Filed: 08/16/2023 Page: 8 of 43 8 Opinion of the Court 19-15024 the Stone Mountain “deck” of the Gangster Disciples who came from North Carolina. These Disciples were not “plugged in”—that is, not “stamped oﬃcial” or initiated “full member[s]” of the gang. The Hate Committee aborted its initial attempt to rob the drug dealer at the Inn because police oﬃcers were there. Some Hate Committee members returned in the evening to “chill” with the Stone Mountain Gangster Disciples. A dispute broke out over the status of the out-of-town Disciples as “plugged in.” Acting on a standing order from Glass against Disciples who were not plugged in, the Hate Committee attacked the Stone Mountain Disciples and killed Edward Chadmon. A member of the Hate Committee, Ro- dricious Gresham, was wounded in the ﬁreﬁght. The Hate Committee held a meeting to discuss the injury of one of its own. At the meeting, the ranking Disciple decided that the Stone Mountain deck was to blame for the incident. That deck would be “put on hold,” or excommunicated, and the Hate Com- mittee was given an “S.O.S.,” or “smash on [sight],” order to “[k]ill, beat, [and] assault” any members of the deck. Glass provided weap- ons and ammunition for the attack and passed along the directive to “apply pressure” by killing and assaulting people. Members of the Hate Committee opened ﬁre on a crowd on Central Avenue in the Stone Mountain area and injured a by- stander. When the members returned to Glass’s home afterward, he appeared to approve of their actions and encouraged them to “continue” with the same activity. The committee members went back to Central Avenue, murdered Rocqwell Nelson, and injured a USCA11 Case: 19-15024 Document: 175-1 Date Filed: 08/16/2023 Page: 9 of 43 19-15024 Opinion of the Court 9 woman standing with Nelson on her patio. When they returned to Glass, he again praised their actions and encouraged them to con- tinue. Again the group went out, greeted “White Boy”—a member of the “on hold” Stone Mountain deck—, then shot him in the stomach at point-blank range. Again, Glass was “pleased” with the result. 5. Murder of Robert Dixon The last crime relevant to this appeal was Glass’s killing of Robert “Rampage” Dixon in August 2015. Dixon was accused of stealing from another Disciple in violation of gang rules. Accord- ing to Gresham, a Hate Committee member and prosecution wit- ness, Glass gave a “greenlight” to punish Dixon for this violation. Glass recruited other Disciples to “go holler” at Rampage. He brought Dixon outside the apartment where Dixon was staying to “talk,” but after a few minutes of talking, according to a witness, Glass pulled out his gun and shot Dixon in the head, killing him. C. Pretrial and Trial Proceedings The principal charge against all the defendants was count one, which charged that the defendants conspired to “conduct and participate directly and indirectly in the conduct of [the Gangster Disciples] through a pattern of racketeering activity” in violation of the Racketeer Inﬂuenced and Corrupt Organizations Act, 18 U.S.C. § 1962(c). The indictment also charged the defendants with the enhanced sentencing provision of the Act, see id. § 1963(a), for joining and remaining in the conspiracy “knowing and agreeing that members of the enterprise engaged in acts involving murder, USCA11 Case: 19-15024 Document: 175-1 Date Filed: 08/16/2023 Page: 10 of 43 10 Opinion of the Court 19-15024 in violation of Oﬃcial Code of Georgia 16-5-1.” The indictment named 34 defendants, and this appeal concerns the joint trial of Alonzo Walton, Kevin Clayton, Donald Glass, Antarious Caldwell, and Vancito Gumbs, who were convicted, and Perry Green, who was acquitted. Before trial, Gumbs moved the district court to show pro- spective jurors a video on unconscious bias prepared by the district court for the Western District of Washington. See Unconscious Bias Juror Video, United States District Court for the Western District of Washington, https://www.wawd.uscourts.gov/jury/uncon- scious-bias. He also proposed a list of voir dire questions about their possible unconscious biases and requested that the prospec- tive jurors be given accompanying jury instructions. The instruc- tions told the jurors that they “must not be inﬂuenced by” their unconscious biases—the same biases the instructional video as- serted were “automatic” and inevitable. The district court denied the motion. It described “a lot of this discussion” about unconscious bias as “politically correct non- sense . . . not based on any valid scientiﬁc or empirical study.” It doubted that the Western District of Washington could know that the jurors in Georgia were unconsciously biased and worried about telling the jurors at the outset that they were biased. The district court expressed concern that the video would “cause jurors to question their ability to make judgments based upon their com- mon sense”; would “suggest that jurors of one race . . . should think that the opinions of a juror of another race are based on bias USCA11 Case: 19-15024 Document: 175-1 Date Filed: 08/16/2023 Page: 11 of 43 19-15024 Opinion of the Court 11 and prejudice” to the detriment of collective deliberation; and would be ineﬀective in ameliorating the cultural diﬀerences be- tween the prospective jurors and the defendants. The district court later denied Gumbs’s motion, ﬁled six business days before trial, to admit Dr. Roberto Aspholm as an ex- pert witness. Aspholm, a professor of social work, researched and taught about the Gangster Disciples. Gumbs said that Aspholm’s testimony would illuminate the structure of the Gangster Disci- ples, on which the prosecution’s theory of a uniﬁed criminal organ- ization depended. He did not explain the basis of Aspholm’s pro- posed testimony except that it would be “based on his years of ﬁrst- hand (particularly university/academic-based) investigations.” The district court denied Gumbs’s motion as untimely and because the explanation of the proﬀered testimony was inadequate. See FED. R. CRIM. P. 16(b)(1)(C) (2018). When the prosecution introduced non- expert testimony about the structure of the Gangster Disciples, Gumbs moved again to be allowed to call Aspholm to rebut that testimony, but the district court denied the request. The district court ordered that all the defendants be secured with ankle restraints throughout the trial. Over the defendants’ ob- jections, the district court accepted the marshal’s request to restrain the defendants “because of the number of the defendants and the diﬃculty of preventing an incident if they collectively decided that something was going to happen.” The district court ordered that the chains be muﬄed, that no restraints be visible, and that the de- fendants enter the courtroom before the jurors and remain seated USCA11 Case: 19-15024 Document: 175-1 Date Filed: 08/16/2023 Page: 12 of 43 12 Opinion of the Court 19-15024 so that the jury would never see the chains. And at the outset of trial, the district court requested that a defendant stand up to test whether the restraints would be audible when the defendants rose and sat. The defendants were each seated next to their counsel, so they could consult with them despite the restraints. The district court allowed the prosecution to bring ﬁrearms as evidence. The prosecution was permitted to bring the ﬁrearms into the courtroom and store them in boxes next to the counsel table for the duration of the day in which they would be used. The district court denied Gumbs’s request to keep the boxes outside the jury’s sight. The district court denied a motion to suppress the fruits of the extension of the wiretap of Walton’s phone. Clayton argued that the extension was unlawful because the underlying supporting aﬃdavit was incomplete and the application did not provide the court with statutorily mandated information. See 18 U.S.C. § 2518(1)(c). The district court denied the motion to suppress on the ground that the application was adequate despite any omission. It concluded, in the alternative, that suppression was not justiﬁed because there was no allegation that the aﬃdavit was intentionally deceptive or reckless with respect to the truth or that the failure to discuss the human sources was material to the statutory criteria for a wiretap. See Franks v. Delaware, 438 U.S. 154, 171–72 (1978). The district court also ruled that the good-faith exception to the exclu- sionary rule foreclosed suppression of the fruits of the wiretap. See United States v. Leon, 468 U.S. 897, 922–24 (1984). USCA11 Case: 19-15024 Document: 175-1 Date Filed: 08/16/2023 Page: 13 of 43 19-15024 Opinion of the Court 13 At the end of the prosecution’s case-in-chief, the district court asked Agent Murdock whether DeKalb County, in which the events to which he had testiﬁed took place, was within the North- ern District of Georgia. Murdock said yes; no one objected; and the government rested. The verdict form proposed by the district court asked whether each defendant was guilty of “Count One of the indict- ment charging RICO conspiracy” and whether “the RICO conspir- acy involve[d] murder.” The second question corresponded to the notice of enhanced sentencing in the indictment, which depended on a ﬁnding that “members of the enterprise engaged in acts in- volving murder, in violation of Oﬃcial Code of Georgia 16-5-1.” See GA. CODE § 16-5-1 (deﬁning malice and felony murder and set- ting the maximum penalty at death); 18 U.S.C. § 1963(a). Walton, in an objection all the defendants joined, argued that the district court should specify that “to ﬁnd the Enhanced sen- tence for murder,” the jury must ﬁnd beyond a reasonable doubt that “the Defendants joined and remained in the RICO conspiracy charged in Count One knowing and agreeing that members of the enterprise engaged in acts involving murder.” Gumbs contended that his verdict form should ask whether he was guilty of “conspir- acy to commit murder.” The district court overruled the objec- tions. The ﬁnal verdict form for each defendant included an inter- rogatory that asked whether “the RICO conspiracy involve[d] mur- der.” USCA11 Case: 19-15024 Document: 175-1 Date Filed: 08/16/2023 Page: 14 of 43 14 Opinion of the Court 19-15024 The relationship between the two questions for count one was muddled in the jury instructions. For count one, the jury had to ﬁnd a “pattern of racketeering activity” to convict, which meant that it had to ﬁnd that at least two racketeering acts were commit- ted by members of the criminal enterprise. See 18 U.S.C. §§ 1962(c), 1961(5). The indictment alleged ten types of racketeering acts. In its instructions, the district court labeled three of these categories of racketeering acts—Georgia-law actual murder, attempted mur- der, and conspiracy to commit murder—as “acts involving mur- der.” The district court deﬁned “murder” to mean only actual mur- der, not any inchoate version of that oﬀense. The enhanced sen- tencing provisions applied to the defendants only if a racketeering act on which the conviction was based was actual “murder” because the enhanced sentencing provisions require a racketeering act pun- ishable by life imprisonment. See id. § 1963(a); GA. CODE §§ 16-5- 1(e)(1), 16-4-6, 16-4-8. In closing arguments, the prosecution elided this distinction and argued that the special interrogatory in the ver- dict form asked whether the Gangster Disciples “engaged in acts involving murder, which includes murder and attempted murder.” The jury returned mixed verdicts. Walton was convicted of the racketeering conspiracy, carjacking Frederick, and using a ﬁre- arm during that carjacking. See 18 U.S.C. § 2119; id. § 924(c)(3)(A). Clayton was convicted of the racketeering conspiracy only. Glass was convicted of the racketeering conspiracy, acquitted of the mur- der of Robert Dixon, convicted of carrying a ﬁrearm during a crime of violence, namely the killing of Robert Dixon, id. § 924(c)(3)(A), convicted of causing the death of Robert Dixon USCA11 Case: 19-15024 Document: 175-1 Date Filed: 08/16/2023 Page: 15 of 43 19-15024 Opinion of the Court 15 with a ﬁrearm, see id. § 1111, and acquitted of two marijuana pos- session charges. Caldwell was convicted of the racketeering con- spiracy, the attempted Hobbs Act robbery of Eric Wilder, see id. § 1951, and carrying a ﬁrearm during a crime of violence, the at- tempted robbery, see id. § 924(c)(3)(A). Vancito Gumbs was con- victed of the racketeering conspiracy. For each of the convicted de- fendants, the jury found that “the RICO conspiracy involve[d] mur- der.” The jury acquitted a sixth codefendant, Perry Green. At sentencing, the defendants objected to the recommenda- tion in the presentence investigation report that they receive en- hanced sentences under the Racketeer Inﬂuenced and Corrupt Or- ganizations Act. The Act provides for a maximum sentence of life imprisonment instead of only 20 years if “the violation is based on a racketeering activity for which the maximum penalty includes life imprisonment.” Id. § 1963(a). The defendants argued that the ver- dict form question whether “the RICO conspiracy involve[d] mur- der” asked the jury whether the conspiracy involved either actual murder or inchoate versions of that oﬀense. Because the jury ver- dict did not distinguish between actual murder, which can support a life sentence under Georgia law, and inchoate forms of murder, which cannot, they argued that their sentences could not exceed 20 years. See id. They styled this objection as an argument that a sen- tence based on the ﬁnding of actual Georgia-law murder would vi- olate the Sixth Amendment. See Apprendi v. New Jersey, 530 U.S. 466, 476 (2000). USCA11 Case: 19-15024 Document: 175-1 Date Filed: 08/16/2023 Page: 16 of 43 16 Opinion of the Court 19-15024 The district court disagreed. It reasoned that the verdict form said “murder” without mentioning the inchoate forms, so the district court was “convinced beyond any doubt that . . . the jury meant . . . malice murder.” It sentenced the defendants under the enhanced sentencing provisions. The district court imposed lengthy sentences of imprison- ment. Walton received 384 months of imprisonment. Clayton re- ceived 396 months of imprisonment. Glass received a sentence of life imprisonment plus 120 months. Caldwell received 360 months of imprisonment. And Gumbs received 180 months of imprison- ment. II. STANDARDS OF REVIEW Several standards of review govern this appeal. We review the conduct of voir dire, the refusal to admit expert opinion testi- mony, the decision to shackle the defendants, the regulation of the use of ﬁrearms as courtroom evidence, and the judge’s decision to question a witness for abuse of discretion. United States v. Hill, 643 F.3d 807, 836 (11th Cir. 2011) (conduct of voir dire); St. Louis Condo. Ass’n, Inc. v. Rockhill Ins. Co., 5 F.4th 1235, 1242 (11th Cir. 2021) (ex- pert testimony and evidentiary rulings); United States v. Baker, 432 F.3d 1189, 1245 (11th Cir. 2005) (shackling determination), abro- gated on other grounds by Davis v. Washington, 547 U.S. 813, 821 (2006); United States v. Day, 405 F.3d 1293, 1297 (11th Cir. 2005) (judge’s engagement with witness testimony). When reviewing the denial of a motion to suppress wire- tapped communications, we review legal conclusions de novo and USCA11 Case: 19-15024 Document: 175-1 Date Filed: 08/16/2023 Page: 17 of 43 19-15024 Opinion of the Court 17 factual ﬁndings for clear error. United States v. Goldstein, 989 F.3d 1178, 1192–93 (11th Cir. 2021). Preserved Apprendi challenges are reviewed de novo. United States v. Candelario, 240 F.3d 1300, 1306 (11th Cir. 2001). We review the legal correctness of jury instruc- tions de novo, but the district court has “wide discretion as to the style and wording employed.” Bhogaita v. Altamonte Heights Condo. Ass’n, Inc., 765 F.3d 1277, 1285 (11th Cir. 2014) (citation omitted). And “[w]e reverse only where we are left with a substantial and in- eradicable doubt as to whether the district court properly guided the jury.” Id. (citation and internal quotation marks omitted). Suf- ﬁciency of the evidence is reviewed de novo, and we ask whether “no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Morel, 63 F.4th 913, 917 (11th Cir. 2023) (citation omitted). We “review the reasonableness of a sentence for abuse of discretion using a two-step process.” United States v. Feldman, 931 F.3d 1245, 1254 (11th Cir. 2019) (citation omitted). First, we deter- mine whether there was a “signiﬁcant procedural error,” including failing to consider the statutory factors, ignoring or miscalculating the guideline range, or “failing to adequately explain the chosen sentence.” Id. (citation omitted). Second, we evaluate the substan- tive reasonableness of the sentence. Id. At that stage, the defendant “has the burden of showing that the sentence is unreasonable in light of the entire record, the [section] 3553(a) factors, and the sub- stantial deference aﬀorded sentencing courts.” United States v. Fox, 926 F.3d 1275, 1282 (11th Cir. 2019) (citation and internal quotation marks omitted). The interpretation of statutory terms like “crime USCA11 Case: 19-15024 Document: 175-1 Date Filed: 08/16/2023 Page: 18 of 43 18 Opinion of the Court 19-15024 of violence” is reviewed de novo. United States v. Johnson, 399 F.3d 1297, 1298 (11th Cir. 2005). Issues that are not properly preserved by timely objection are reviewed for plain error. Puckett v. United States, 556 U.S. 129, 134–35 (2009). We can correct such errors if they are plain, if they aﬀect a substantial right, and “if the error seriously aﬀects the fair- ness, integrity, or public reputation of judicial proceedings.” United States v. Laines, 69 F.4th 1221, 1229 (11th Cir. 2023) (citation omit- ted). III. DISCUSSION We divide our discussion into 13 parts. In the ﬁrst ﬁve parts, we explain why the district court did not abuse its discretion in its pretrial and trial procedural decisions. In the next two parts, we ad- dress the defendants’ arguments that their convictions must be overturned because the wiretap evidence should have been sup- pressed and because the defendants should not have been subject to enhanced sentencing provisions. We then turn to ﬁve individual challenges to convictions and sentences. And ﬁnally, we brieﬂy ex- plain that Caldwell’s sentence must be vacated because of United States v. Taylor, 142 S. Ct. 2015 (2022). A. The District Court Did Not Abuse Its Discretion When It Declined to Play a Video about Unconscious Bias. The defendants argue that the district court should have re- quired the jury venire during voir dire to watch a video about un- conscious bias to mitigate potential racial bias against them and that the district court should have given corresponding jury USCA11 Case: 19-15024 Document: 175-1 Date Filed: 08/16/2023 Page: 19 of 43 19-15024 Opinion of the Court 19 instructions. Although the district court sometimes has an obliga- tion to permit defendants “to ask questions about racial bias during voir dire,” Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 868 (2017); see also Ham v. South Carolina, 409 U.S. 524, 526–27 (1973), it retains “broad discretion to manage voir dire,” United States v. Tsarnaev, 142 S. Ct. 1024, 1036 (2022). We have never held that a district court must conduct unconscious bias training or allow unconscious bias questioning during voir dire. The district court did not abuse its discretion. Jurors are en- titled—indeed, expected—to make inferences based on common sense. See, e.g., United States v. Marino, 562 F.2d 941, 944–45 (5th Cir. 1977); Pattern Crim. Jury Instr. 11th Cir. BI B4 (2020) (“In consider- ing the evidence you may use reasoning and common sense to make deductions and reach conclusions.”). The proﬀered video, in contrast, labels all deeply ingrained judgments based on experi- ence, even those not based on racial, religious, or other protected characteristics, as “biases.” And it encourages jurors to second- guess their conclusions and to engage in counterfactual thought experiments ﬂipping the age, race, or gender of various trial partic- ipants. The district court reasonably determined that the video could “cause jurors to question their ability to make judgments based upon their common sense and experience.” The video en- courages jurors to doubt their own conclusions and the conclu- sions of their peers, and to presume that any decision is tainted by an “automatic” and unavoidable bias. It was also not an abuse of discretion to conclude that it would be harmful to jury delibera- tions to suggest to the jurors that they should be suspicious of their USCA11 Case: 19-15024 Document: 175-1 Date Filed: 08/16/2023 Page: 20 of 43 20 Opinion of the Court 19-15024 prospective colleagues’ decisions based on the possibility of uncon- scious racial bias. And, insofar as racial biases stemming from cul- tural diﬀerences could have tainted the trial, the district court rea- sonably doubted “that a ten-minute video from the district court in Washington is going to ameliorate in any way th[ose] cultural diﬀerences.” See United States v. Mercado-Gracia, 989 F.3d 829, 839– 41 (10th Cir. 2021) (upholding a rejection of the same video). The district court also did not abuse its discretion when it declined to ask questions during voir dire about unconscious bias. The choice of procedure to identify and respond to bias on the part of potential jurors is left to the “sound discretion” of the district court. Hill, 643 F.3d at 836 (citation omitted). The district court highlighted serious concerns with juror education materials and in- structions that simultaneously tell each potential juror that he has inevitable unconscious biases and that he has a legal duty not to let these unconscious biases inﬂuence him. Gumbs does not dispute that the district court allowed some questions that explicitly touched on potential racial bias by jurors; it barred only the uncon- scious-bias line of questioning. B. The District Court Did Not Abuse Its Discretion When It Declined to Admit Dr. Aspholm’s Expert Testimony. The defendants next argue that the district court abused its discretion when it declined to admit the expert opinion testimony of Dr. Roberto Aspholm about the nature and structure of the Gangster Disciples. The district court found that Gumbs’s disclo- sure was untimely and inadequate. The defendants contend that USCA11 Case: 19-15024 Document: 175-1 Date Filed: 08/16/2023 Page: 21 of 43 19-15024 Opinion of the Court 21 Gumbs’s disclosure was timely because it gave the prosecution sev- eral weeks of notice before Aspholm would testify even though it had only six business days before trial began. And they contend that even if Gumbs’s initial disclosure was untimely, Aspholm should have been allowed to testify to rebut the prosecution’s portrayal of the gang. The defendants argue that the disclosure was speciﬁc enough to provide the prosecution fair notice of the content of As- pholm’s testimony. See FED. R. CRIM. P. 16(b)(1)(C) (2018). The dis- trict court’s decision was not “manifestly erroneous,” United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (en banc) (citation omitted), with respect to any ground, so we aﬃrm. It was not an abuse of discretion to ﬁnd that Gumbs did not provide timely notice of the testimony. Gumbs ﬁled his notice only six business days before trial began. The district court determined that six business days before a complicated multidefendant trial was insuﬃcient time for the prosecution to prepare a rebuttal of As- pholm’s testimony or to secure a comparable expert witness to re- spond to his testimony. And it reasonably concluded that it was un- fair to ask the government to formulate its response after the trial had started. Although not in eﬀect when the trial occurred in 2019, the revised Rules explicitly adopt this commonsense proposition. The current version of Rule 16, eﬀective as of December 1, 2022, re- quires that notice of expert opinion testimony come “suﬃciently before trial” for adequate preparation and does not measure time- liness based on the expected date of the testimony. FED. R. CRIM. P USCA11 Case: 19-15024 Document: 175-1 Date Filed: 08/16/2023 Page: 22 of 43 22 Opinion of the Court 19-15024 16(b)(1)(C)(ii) (2022) (emphasis added). We are loath to condemn as an abuse of discretion a decision of the district court that accords with the rule that would apply today, particularly where the earlier rule was silent on the issue. The defendants’ defense for Gumbs’s late disclosure—that he did not realize until shortly before trial that the prosecution would portray the Gangster Disciples as a hierarchical criminal conspiracy—is frivolous. The second paragraph of the indictment alleges that the Gangster Disciples “employ a highly structured or- ganization” to commit their crimes. That portrayal was never in doubt. For the same reason, the district court did not abuse its dis- cretion when it declined to reconsider admitting Aspholm after the prosecution presentation of the structure of the Gangster Disci- ples. The district court also did not abuse its discretion when it ruled that Gumbs failed to provide an adequate description of As- pholm’s testimony and “the bases and reasons for those opinions.” FED. R. CRIM. P. 16(b)(1)(C) (2018). Gumbs never informed the prosecution of the sources on which Aspholm would base his tes- timony. The best explanation of Aspholm’s testimony came in Gumbs’s reply to the government’s opposition to his admission. That document states Aspholm’s conclusions that “the Gangster Disciples is not and has not been the unitary, tightly organized, structured, coordinated, and controlled organization that the Gov- ernment characterizes it as” and that the organization “sometimes serves political, philosophical, cultural, and even quasi-religious USCA11 Case: 19-15024 Document: 175-1 Date Filed: 08/16/2023 Page: 23 of 43 19-15024 Opinion of the Court 23 functions” instead of criminal ones. The district court did not abuse its discretion when it found vague references to “interviewing and ﬁeld work . . . and statistical analysis” and “research, analysis, and teaching,” on gangs in general to be an inadequate explanation of the basis for Aspholm’s opinions. C. The Ankle Restraints Did Not Violate the Defendants’ Rights. Gumbs, Glass, and Caldwell argue that the district court abused its discretion when it ordered them to be restrained at the ankles throughout trial. They argue that the district court failed to conduct an individualized inquiry into their dangerousness and to give notice of the grounds for its decision. This argument fails. Our legal tradition strongly disfavors visibly restraining criminal defendants. As the Supreme Court explained, “Blackstone wrote that ‘it is laid down in our antient books, that, though under an indictment of the highest nature,’ a defendant ‘must be brought to the bar without irons, or any manner of shackles or bonds; un- less there be evident danger of an escape.’” Deck v. Missouri, 544 U.S. 622, 626 (2005) (quoting 4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND *322). “[T]he use of physical restraints visible to the jury” is prohibited “absent a trial court determination, in the exercise of its discretion, that they are justified by a state interest specific to a particular trial.” Deck, 544 U.S. at 629. This rule exists to prevent prejudice to the presumption of innocence, the right to counsel, and the dignity of criminal pro- ceedings. Id. at 630–31. USCA11 Case: 19-15024 Document: 175-1 Date Filed: 08/16/2023 Page: 24 of 43 24 Opinion of the Court 19-15024 The common-law rule against shackling prevents creating an unfair impression of guilt for the jury and is limited to contexts that implicate that danger. We have held the rule does not apply to proceedings in which the jury is not present, such as sentencing. United States v. LaFond, 783 F.3d 1216, 1225 (11th Cir. 2015). In re- jecting a petition for a writ of habeas corpus, we have explained that Supreme Court precedents about shackling “are not applicable to security devices or measures that are not visible.” Nance v. War- den, Ga. Diag. Prison, 922 F.3d 1298, 1305 (11th Cir. 2019). And we have never reversed a conviction based on the use of restraints in- visible to the jury. See, e.g., Baker, 432 F.3d at 1246; United States v. Mayes, 158 F.3d 1215, 1226–27 (11th Cir. 1998); United States v. Bat- tle, 173 F.3d 1343, 1346–47 (11th Cir. 1999). We reject the defendants’ challenge because the record makes clear that the ankle restraints were not perceptible to the jury and no defendant alleges that he lacked access to counsel. The district court ordered that the restraints be placed on the defend- ants’ legs only, that they be muffled to prevent clanking, that a cur- tain around the defense table conceal them from the jury, and that the defendants enter and exit the courtroom outside the presence of the jury. The defendants unpersuasively complain that the dis- trict court could have done more to investigate the possibility of prejudice. They also make the unsubstantiated assertion that the ankle restraints “very probably caused fear of the defendants.” The district court took steps to verify that the restraints were impercep- tible, so we do not credit the defendants’ speculation about the ju- rors’ perceptions. USCA11 Case: 19-15024 Document: 175-1 Date Filed: 08/16/2023 Page: 25 of 43 19-15024 Opinion of the Court 25 D. The District Court Did Not Abuse Its Discretion in Regulating the Use of Firearms as Evidence. Gumbs, Glass, and Caldwell argue that the prosecutors’ use of firearms as physical evidence at trial violated their right to due process by undermining the presumption of innocence. They con- tend that the district court should have granted Gumbs’s motion to “prohibit the storing of weapons in the courtroom, in boxes, from which boxes various of those weapons regularly were ex- tracted, paraded around the court room, and handed to the jurors to pass amongst themselves.” They argue that there was “no real reason” for this procedure except to paint the defendants as “dan- gerous renegade[s].” We disagree. The district court followed a reasonable procedure for han- dling the weapons. The prosecution showed the weapons as evi- dence to prove the charged crimes that involved firearms at trial. The defendants fail to substantiate their accusation that the weap- ons were stored in this manner solely to prejudice them. And they fail to mention any specific instances where the prosecution used the guns in an inappropriate way. The district court reasonably bal- anced the inconvenience of storing the weapons in a separate room against the prejudice of piling up weapons in the courtroom and struck a sensible balance in which the guns were kept out of view in boxes and the boxes were limited to those needed that day. The district court did not abuse its discretion. USCA11 Case: 19-15024 Document: 175-1 Date Filed: 08/16/2023 Page: 26 of 43 26 Opinion of the Court 19-15024 E. The District Court Did Not Impermissibly Depart from Neutrality When It Questioned a Witness. Caldwell, Gumbs, and Walton contend that the district court committed plain error and deprived them of a fair trial when it asked a prosecution witness whether DeKalb County—the loca- tion of some of the criminal activity he described—is in the North- ern District of Georgia. That DeKalb County is within the North- ern District of Georgia established venue, see United States v. Snipes, 611 F.3d 855, 865–66 (11th Cir. 2010), so the defendants contend that the question unfairly helped the prosecution. We disagree. The trial judge is “more than a referee to an adversarial pro- ceeding.” United States v. Harris, 720 F.2d 1259, 1261 (11th Cir. 1983). Consistent with the common-law tradition, the judge may “com- ment on the evidence” and “question witnesses and elicit facts not yet adduced or clarify those previously presented.” Moore v. United States, 598 F.2d 439, 442 (5th Cir. 1979). This questioning is limited only by the principle that a judge must maintain neutrality between the parties. See id. (approving a trial judge’s decision to ask 105 questions of the defendant). The district judge stayed well within these bounds. He asked a single question without commenting on the veracity or relevance of the witness’s testimony. The legal status of DeKalb County is a “legislative fact” not particular to the parties, so the district court was entitled to instruct the jury that the county was within the Northern District of Georgia. See FED. R. EVID. 201, advisory com- mittee notes to 1972 proposed rules; United States v. Bowers, 660 F.2d USCA11 Case: 19-15024 Document: 175-1 Date Filed: 08/16/2023 Page: 27 of 43 19-15024 Opinion of the Court 27 527, 530–31 (5th Cir. Unit B 1981). The district court did not err, let alone clearly err, when it asked a witness for that information. F. The District Court Correctly Declined to Suppress the Fruits of the Ex- tended Wiretap. Clayton and Walton argue that the district court should have suppressed the fruits of the January 2014 extension of the wiretap on Walton’s phone. They argue that Murdock failed to provide the required “full and complete statement as to whether or not other investigative procedures have been tried and failed or why they rea- sonably appear to be unlikely to succeed if tried or to be too dan- gerous,” 18 U.S.C. § 2518(1)(c), because his extension application did not discuss the seven human sources mentioned in the initial application. They also argue that Franks v. Delaware does not limit the suppression of the fruits of wiretaps and that the good-faith exception to the suppression remedy also does not apply to wiretap cases. Because the district court properly applied Franks and the good-faith exception to the motion to suppress, we do not reach the argument that its ruling on section 2518(1)(c) was erroneous. Franks addressed the suppression of evidence obtained pur- suant to a warrant obtained through an aﬃdavit containing false information. Franks, 438 U.S. at 155; see U.S. CONST. amend. IV (“[N]o Warrants shall issue, but upon probable cause . . . .”). The Court held that a factual error requires suppression of the evidence the warrant produced only if the defendant establishes “deliberate falsehood or . . . reckless disregard for the truth” by the aﬃant and “if, when material that is the subject of the . . . falsity or reckless USCA11 Case: 19-15024 Document: 175-1 Date Filed: 08/16/2023 Page: 28 of 43 28 Opinion of the Court 19-15024 disregard is set to one side,” probable cause would not support the warrant. Franks, 438 U.S. at 171–72; see also id. at 156. The defend- ants argue that Franks does not limit the statutory suppression rem- edy that applies to wiretaps obtained through a defective applica- tion. See 18 U.S.C. § 2518(10)(a)(i). We have consistently applied Franks to motions to suppress the evidentiary fruits of wiretaps. See United States v. Capers, 708 F.3d 1286, 1296 n.6 (11th Cir. 2013) (“The rule in Franks has since been held applicable to aﬃdavits submitted in support of court-or- dered electronic surveillance.”); accord United States v. Malekzadeh, 855 F.2d 1492, 1497 (11th Cir. 1988); United States v. Novaton, 271 F.3d 968, 984, 986 (11th Cir. 2001); United States v. Votrobek, 847 F.3d 1335, 1342 (11th Cir. 2017); United States v. Perez, 661 F.3d 568, 581 n.18 (11th Cir. 2011). Based on this binding precedent, we reject the defendants’ challenge because they have failed to allege that Mur- dock asserted “deliberate falsehoods” or exhibited “reckless disre- gard for the truth.” Franks, 438 U.S. at 171. And we aﬃrm on the alternative ground that, as the defendants concede, our precedent also bars suppression of evidence obtained in good-faith reliance on a court-approved wiretap. See Leon, 468 U.S. at 922–24; Malekza- deh, 855 F.2d at 1496–97 (applying Leon to a motion to suppress the fruits of a wiretap). The defendants do not dispute the district court’s determination that law enforcement acted in good faith. G. The Sentences Do Not Violate Apprendi. Walton, Clayton, Glass, and Caldwell contend that their sen- tences are unconstitutional because they rest on enhanced USCA11 Case: 19-15024 Document: 175-1 Date Filed: 08/16/2023 Page: 29 of 43 19-15024 Opinion of the Court 29 sentencing provisions of the Racketeer Inﬂuenced and Corrupt Or- ganizations Act for which, they argue, the jury did not make the requisite ﬁndings. Gumbs joins this argument insofar as it bears on the district court’s exercise of discretion in sentencing him. The de- fendants contend that the district court’s alleged misreading of the jury’s verdicts violates the Sixth Amendment requirement that “any fact other than a prior conviction that increases the penalty for a crime” must be found by a jury beyond a reasonable doubt. Candelario, 240 F.3d at 1303 (citations omitted and alterations adopted); see Apprendi, 530 U.S. at 476. We disagree. This argument involves an unpreserved objection to the ver- dict form and jury instructions masquerading as an Apprendi chal- lenge. Apprendi forbids a district court from making a factual ﬁnd- ing necessary for an increased criminal penalty; only a jury may make that ﬁnding. Apprendi, 530 U.S. at 476. Here, the relevant fac- tual ﬁnding was that the conspiracy involved actual murder, not at- tempted murder or conspiracy to commit murder. See supra Part I.C. The district court did not purport to ﬁnd this fact when it ap- plied the enhanced sentencing provisions. It instead determined that the jury’s verdict form reﬂected that the jury had made that ﬁnding beyond a reasonable doubt. Clayton argues that because the verdict form was unclear—an objection we address below—the dis- trict judge had to “speculat[e]” about what the jury found and that Apprendi forbids that kind of speculation. But Apprendi does not ad- dress the district court’s duty to interpret jury verdicts. It addresses a trial judge’s inability to make factual ﬁndings that alter the pen- alty for a crime. See, e.g., Candelario, 240 F.3d at 1304. The USCA11 Case: 19-15024 Document: 175-1 Date Filed: 08/16/2023 Page: 30 of 43 30 Opinion of the Court 19-15024 defendants argue that the district court misread the jury verdict and then applied the wrong statutory punishment based on that mis- take. That argument does not implicate Apprendi. The jury found that the conspiracy included actual, not in- choate, murder as part of its racketeering activities. Although the prosecutor in closing arguments elided the diﬀerence between the “acts involving murder” that could serve as predicate racketeering activities for conviction on count one and the actual “murder” re- quired for the enhanced sentencing provision, the district judge did not make the same mistake. He instructed the jury that “acts in- volving murder” for the purposes of ﬁnding the two racketeering activities needed for conviction extended to Georgia-law conspir- acy to commit murder and attempted murder. But the district court never said that the jury should read the phrase “involve murder” to mean “involve acts involving murder.” The district court speciﬁ- cally deﬁned “murder” to include only actual murder under Geor- gia law, which is “a racketeering activity for which the maximum penalty includes life imprisonment,” 18 U.S.C. § 1963(a); see GA. CODE § 16-5-1(e)(1). And the verdict form asked whether the con- spiracy “involve[d] murder,” not “acts involving murder.” The plain meaning of this phrase is that the question concerns what the dis- trict court deﬁned as murder, not what the district court deﬁned as acts involving murder. Any other reading would render the interrog- atory purposeless; if it asked about “acts involving murder,” it would not have any implications for the defendants’ convictions or sentences. The district court correctly concluded that the jury USCA11 Case: 19-15024 Document: 175-1 Date Filed: 08/16/2023 Page: 31 of 43 19-15024 Opinion of the Court 31 found that the conspiracy involved actual murder, as required for the enhanced sentencing provision. As the government suggests, one could understand the de- fendants to argue that the jury verdict form was so unclear that the jury was confused about what it was being asked, but that chal- lenge is unpreserved and meritless at this late stage. A challenge to jury instructions or the verdict form after the jury has delivered its verdict is too late. United States v. Mitchell, 146 F.3d 1338, 1342 (11th Cir. 1998). None of the defendants raised the ambiguity on which they now rely before jury deliberations. Walton, in an objection the other defendants joined, speciﬁcally argued that the verdict form ought to ask whether the conspiracy included “acts involving mur- der.” We explain in the next section why the district court did not err when it rejected Gumbs’s requested verdict form, but his objec- tions to the proposed verdict forms did not rely on the diﬀerence between actual and inchoate murder. So the defendants never ade- quately brought the problem to the district court’s attention, and our review is for plain error. Id. “Meeting all four prongs [of the plain-error test] is diﬃcult, as it should be,” Puckett, 556 U.S. at 135 (citation and internal quo- tation marks omitted), and the defendants do not even attempt to establish that the district court plainly erred in a way that preju- diced them. The defendants oﬀer no caselaw that establishes that it was “obvious or clear under current law,” Candelario, 240 F.3d at 1309 (citation and internal quotation marks omitted), that the ver- dict form should have been phrased diﬀerently or that a speciﬁc USCA11 Case: 19-15024 Document: 175-1 Date Filed: 08/16/2023 Page: 32 of 43 32 Opinion of the Court 19-15024 clarifying instruction was necessary. Nor have they established a “reasonable probability,” United States v. Shelton, 400 F.3d 1325, 1331–32 (11th Cir. 2005), that the jury would have found that the conspiracy involved only attempted murder or a conspiracy to commit murder. And the record was replete with evidence of ac- tual murders by members of the Gangster Disciples. Because of these deﬁciencies, we need not address the other elements of the plain-error test. H. Gumbs’s Challenges to His Jury Verdict Form and Conviction Fail. Gumbs contends that the district court should have used his preferred verdict form and that the failure to do so resulted in his being convicted on legally insuﬃcient evidence. Glass agrees that the district court should have given Gumbs’s proposed instructions. Gumbs’s proposed verdict form asked whether he was guilty of “conspiracy to commit murder” and required the jury to name the intended victim of the murder if it answered aﬃrmatively. Gumbs contends that there was no evidence from which the jury could have reasonably found that he was involved in the Gangster Disci- ples conspiracy before the murders alleged in the indictment took place. He argues that a properly instructed jury would not have found that he was part of a conspiracy in which actual murder was involved, so his sentencing guidelines calculation was erroneous. We disagree. The district court acted within its “wide discretion” when it rejected Gumbs’ proposed verdict form and jury instructions. Bhogaita, 765 F.3d at 1285. For the enhanced sentencing ﬁnding, USCA11 Case: 19-15024 Document: 175-1 Date Filed: 08/16/2023 Page: 33 of 43 19-15024 Opinion of the Court 33 Gumbs wanted the district court to ask the jury whether Gumbs was guilty of “conspiracy to commit murder.” That question could have easily misled the jury to believe that the object of the conspir- acy had to be murder, when the relevant question was whether Gumbs was vicariously liable for a murder that was part of the pat- tern of racketeering activity that supported the conspiracy in which he was involved. See 18 U.S.C. §§ 1962(c), 1963(a). Moreover, Gumbs identiﬁes no precedent supporting his request that the jury name the victim murdered. And as we have explained above, the district court gave accurate instructions and provided a verdict form for which no plain error has been established. Gumbs has also not established that there was insuﬃcient evidence that he was a member of a conspiracy that involved mur- der. He maintains that two key pieces of evidence tying him to the conspiracy—the wiretapped conversations between him and Wal- ton and the text messages to his girlfriend in which he described himself as a “gd hitman”—took place after the murders alleged in the indictment. But this fact does not allow us to set aside the jury’s verdict. Even on its own terms, Gumbs’s argument does not make sense; a jury could fairly infer that if Gumbs expressed regret for being a hitman for the Gangster Disciples in August 2015, then he was already a Disciple only a month earlier during the July 2015 wave of violence. And other evidence presented at trial could sup- port the ﬁnding that he was in the Gangster Disciples earlier than he argues. Quantavious Hurt testiﬁed that he knew Gumbs was part of the gang, and Gumbs joined the police force with what at USCA11 Case: 19-15024 Document: 175-1 Date Filed: 08/16/2023 Page: 34 of 43 34 Opinion of the Court 19-15024 least one witness identiﬁed as preexisting Gangster Disciples tat- toos. I. Clayton’s Sentence Was Not Based on Clearly Erroneous Facts. Clayton argues that we should vacate his sentence because it rested on clearly erroneous ﬁndings of fact. The district court explained that his 33-year prison sentence was “appropriate” be- cause of the violent acts that the Gangster Disciples committed and because Clayton “was a high-ranking oﬃcial” in the organization and had a role “of encouragement, recruitment, and applauding acts including murder that took place by others.” Clayton argues that this description of his role was clearly erroneous because he did not personally recruit certain members of the Hate Committee nor encourage the Central Avenue murders in advance. But the dis- trict court committed no clear error. Clayton’s objection to the description of his role as “a high- ranking oﬃcial” who was involved in recruiting criminals and en- couraging murder is frivolous. Clayton admits that he was at one time “Chief Enforcer” for the Gangster Disciples—and indeed “En- forcer of the Year” in 2013. Ample testimony supported a ﬁnding that this role required violence, up to murder, to enforce gang disci- pline. Clayton also misses the mark when he argues that he did not initially recruit the individuals the prosecution mentioned at sen- tencing and did not know about the Central Avenue murders in ad- vance. Wiretap evidence establishes that Clayton consistently held himself out as responsible for Hate Committee activities and for recruiting younger members of the Gangster Disciples to new roles USCA11 Case: 19-15024 Document: 175-1 Date Filed: 08/16/2023 Page: 35 of 43 19-15024 Opinion of the Court 35 in the gang. Clayton called Glass, the leader of the Hate Commit- tee, his “right hand guy.” He referred to the younger members of the Hate Committee as “KK shooters,” a reference to his nickname, and he boasted that he “brought the shooters to the . . . eastside.” Likewise, Clayton’s argument that the prosecution did not know exactly when he was Chief Enforcer is irrelevant to the ﬁndings un- derpinning his sentence; the district court did not rest its sentenc- ing on a ﬁnding that Clayton was Chief Enforcer at a particular time. J. Suﬃcient Evidence Supported Glass’s Racketeering Conviction. Glass challenges his conviction for the racketeering conspir- acy on the ground that the jury acquitted him of the only predicate racketeering activities for which he was indicted. See United States v. Browne, 505 F.3d 1229, 1257 (11th Cir. 2007) (explaining that a racketeering conviction requires finding at least “two predicate racketeering acts”). He argues that because the jury acquitted him of the murder of Robert Dixon and for possessing drugs with intent to distribute them—the only crimes that were predicate “racket- eering activities”—there must have been insufficient evidence for his conviction for the racketeering conspiracy. We disagree. The jury was instructed that to convict on the racketeering conspiracy, it had to find two predicate acts on the list of several acts alleged in count one, which included many more crimes be- sides those specifically charged as traceable to Glass. We presume the jury followed this instruction. See United States v. Kennard, 472 F.3d 851, 858 (11th Cir. 2006). It could have relied on any two of USCA11 Case: 19-15024 Document: 175-1 Date Filed: 08/16/2023 Page: 36 of 43 36 Opinion of the Court 19-15024 the acts described in count one. And settled precedent bars Glass’s argument that there must not have been sufficient evidence for count one based on acquittal on the other counts. “[I]nconsistency between verdicts on different counts of the indictment does not vi- tiate convictions on those counts of which the defendant is found guilty.” United States v. Rosenthal, 793 F.2d 1214, 1229 (11th Cir. 1986). K. Glass’s Sentence Is Reasonable. Glass challenges his prison sentence of life-plus-ten-years as procedurally and substantively unreasonable. He argues that his sentence was procedurally unreasonable because the district court miscalculated the guidelines range, based his sentence on clearly erroneous factual findings, and failed to consider the statutory fac- tors for sentencing. He argues that his sentence is substantively un- reasonable because the district court impermissibly weighed the statutory sentencing factors and sentenced him unfairly compared to his co-defendants. Each challenge fails. 1. Procedural Reasonableness Glass reiterates, in the form of a guidelines challenge, the supposed Apprendi argument that we have already rejected. A sen- tence is procedurally unreasonable if the district court miscalcu- lated the relevant guidelines range for a defendant. Gall v. United States, 552 U.S. 38, 51 (2007). Glass argues that the district court miscalculated his guideline range because it misread the verdict form to mean that the jury found the conspiracy involved actual, not inchoate, forms of murder. We reject this argument for the USCA11 Case: 19-15024 Document: 175-1 Date Filed: 08/16/2023 Page: 37 of 43 19-15024 Opinion of the Court 37 reasons we explained in Part III.G. He also argues that the district court must have relied on the Dixon murder to calculate his base offense level as corresponding to that of murder, but he misunder- stands the record: the district court based his offense level on his conviction on count one for a conspiracy that “involve[d] murder,” regardless of the Dixon killing. Aside from his guideline challenge, Glass argues that the dis- trict court sentenced him based on clearly erroneous factual find- ings. See id. (explaining that a sentence can be procedurally unrea- sonable if it is “select[ed] based on clearly erroneous facts”). Glass argues that the district court clearly erred when it said that he was the person in the case most responsible for “a trail of murder, may- hem, maiming and destruction of life” and found that he “physi- cally murder[ed] Robert Dixon” and “directed [the Hate Commit- tee’s] teenage assassins to go out and simply randomly shoot, mur- der and maim people who were doing nothing other than just go- ing about their lives.” None of these findings is clearly erroneous. Glass’s only re- sponse to the findings is that he did not “corrupt[] an entire gener- ation of teenagers” but rather “provided encouragement and sup- port to local youth, including [Quantavious] Hurt.” This assertion does not establish that the district court clearly erred. Ample evi- dence supported the finding that Glass led the Hate Committee that perpetrated the Central Avenue murders: multiple witnesses so identified him. Glass’s assertion that he was a positive influence on local youth is belied by the uncontradicted evidence that he, for USCA11 Case: 19-15024 Document: 175-1 Date Filed: 08/16/2023 Page: 38 of 43 38 Opinion of the Court 19-15024 example, encouraged the Hate Committee to continue the Central Avenue crimes after their first sortie and that he helped secure the weapons for the crimes. So it was not clearly erroneous to find that he was uniquely responsible for the violence and “directed” the Hate Committee to commit violent crimes. Although Glass asserts that he was “disappointed” to learn that Hurt killed Demarco Franklin, Hurt testified that Glass told him that he did what he was “supposed to do.” In any event, noth- ing contradicts Hurt’s testimony that Glass ordered that someone engage in a reprisal killing after Hurt’s dispute with the Bloods at the gas station. And notwithstanding Glass’s acquittal of Dixon’s murder under Georgia law, a district court is entitled to rely on ac- quitted conduct at sentencing if it finds that the conduct occurred based on a preponderance of the evidence. United States v. Faust, 456 F.3d 1342, 1347 (11th Cir. 2006). Multiple witnesses testified that Glass killed Dixon. Moreover, the jury found that Glass “cause[d] the death of Robert Dixon” in violation of federal law. Glass’s assertion that the district court failed to consider his individual characteristics is likewise meritless. See 18 U.S.C. § 3553(a)(1) (requiring that the district court consider “the history and characteristics of the defendant”). Glass complains that the dis- trict court did not “mention[ his] personal history and characteris- tics,” such as his difficult childhood. But the district court need not discuss each factor under section 3553(a), see United States v. Wil- liams, 526 F.3d 1312, 1322 (11th Cir. 2008). And the district court stated that it did consider Glass’s history and characteristics, USCA11 Case: 19-15024 Document: 175-1 Date Filed: 08/16/2023 Page: 39 of 43 19-15024 Opinion of the Court 39 presumably including the very facts he now cites, in selecting his sentence. 2. Substantive Reasonableness Glass argues that his sentence is substantively unreasonable because it relied solely on one factor—protecting the public—in neglect of all other sentencing factors and because his sentence is much harsher than those of his codefendants. He also reiterates his argument that his sentence could not be based on the murder of Robert Dixon. We reject Glass’s substantive challenge. Our review is highly deferential. United States v. Irey, 612 F.3d 1160, 1191 (11th Cir. 2010) (en banc). A district court has dis- cretion to assign relative weight to different sentencing factors, and the defendant has the “burden of showing that the sentence is un- reasonable in light of the entire record, the [section] 3553(a) factors, and the substantial deference afforded sentencing courts.” Fox, 926 F.3d at 1282 (citation omitted). Glass has not satisfied this heavy burden. As we explained above, the district court did not clearly err when it found that Glass led the murderous Hate Committee and killed Robert Dixon. Glass received a harsher sentence than other leaders of the gang and other murderers, but he was the only de- fendant who combined leadership in the Gangster Disciples with personal commission of murder. It was not an abuse of discretion to give him the harshest sentence. USCA11 Case: 19-15024 Document: 175-1 Date Filed: 08/16/2023 Page: 40 of 43 40 Opinion of the Court 19-15024 L. Suﬃcient Evidence Supports the Finding that Walton Intended to Cause Death or Serious Bodily Harm in the Frederick Carjacking. Walton argues that his carjacking conviction and related firearm conviction must be vacated because there was insufficient evidence that he intended for Frederick to be seriously harmed or killed in the plot to rob her at gunpoint. The carjacking statute pro- hibits “tak[ing] a motor vehicle” involved in interstate commerce “with the intent to cause death or serious bodily harm.” 18 U.S.C. § 2119. Walton concedes that he conspired to rob Frederick, but he denies that the prosecution proved that he intended to “cause death or serious bodily harm.” But “drawing all reasonable infer- ences and credibility choices in the Government’s favor,” Browne, 505 F.3d at 1253, we conclude that sufficient evidence supported the jury’s finding that Walton had the requisite intent for his con- viction. The prosecution can prove the “intent to cause death or se- rious bodily harm,” 18 U.S.C. § 2119, by proving that when the de- fendant demanded or took control of the car, he “possessed the in- tent to seriously harm or kill the driver if necessary to steal the car.” Holloway v. United States, 526 U.S. 1, 12 (1999) (emphasis added). It is not necessary that the defendant expect or desire that serious harm or death would result. Id. at 7. Frederick was robbed without being seriously harmed or killed, so the prosecution had to prove that the conspirators intended that she be seriously harmed or killed if, counterfactually, it had been necessary. USCA11 Case: 19-15024 Document: 175-1 Date Filed: 08/16/2023 Page: 41 of 43 19-15024 Opinion of the Court 41 Walton acknowledges that he and Dickerson planned to bring a gang member who did not know Frederick to rob her at gunpoint, but he argues that the jury could not have reasonably found that his intent was that the robber use that gun if necessary. Dickerson testified that Walton assured him that he would use his authority as Governor to ensure that Frederick would not be harmed. And Walton argues that a robber who intended to use deadly force to ensure the success of the robbery would have shot Frederick when she attacked him. Both Frederick and Dickerson testified that they thought the robber would have used his gun if he had not been instructed that he could not. Pointing a gun at someone and demanding money is the kind of evidence on which prosecutors may rely to prove the mens rea for carjacking. See, e.g., United States v. Douglas, 489 F.3d 1117, 1128 (11th Cir. 2007), abrogated in part on other grounds by Perry v. New Hampshire, 565 U.S. 228, 237–38 (2012); United States v. Diaz, 248 F.3d 1065, 1097–98 (11th Cir. 2001). And drawing all inferences against Walton, as we must, Browne, 505 F.3d at 1253, the jury’s verdict was reasonable, even if it was “not inevitable,” id. A jury was not required to credit the testimony of Dickerson about the importance of protecting his girlfriend when he orchestrated a scheme to have her robbed at gunpoint. Dickerson’s testimony was probative of Walton’s intent only if the jury believed both Dicker- son’s account of what Walton said and that Walton told Dickerson the truth. USCA11 Case: 19-15024 Document: 175-1 Date Filed: 08/16/2023 Page: 42 of 43 42 Opinion of the Court 19-15024 Nor is Frederick’s resistance—or the lack of a more forceful response to it—decisive. The robber knew that Dickerson was in on the plan, so he knew that Dickerson would not assist Frederick, who was not as much of a threat by herself. He was also willing to use enough force to kick her out of the car while it was moving, suggesting he did not share Dickerson’s supposed concern for Fred- erick’s safety. A jury could have reasonably found that the robber declined to use force sufficient to seriously harm or kill Frederick only because it was unnecessary, not because he was told he could not use that force. M. Caldwell’s Conviction Under the Armed Career Criminal Act and His Sentence Must Be Vacated. After briefing closed in this appeal, we granted Caldwell per- mission to file a supplemental brief based on intervening precedent to challenge his conviction for using a firearm “during and in rela- tion to a crime of violence, that is[,] the robbery of E[ric] W[ilder].” Count 17 of the indictment contemplated that the offense of at- tempted Hobbs Act robbery, 18 U.S.C. § 1951, is a “crime of vio- lence” within the meaning of the Armed Career Criminal Act, id. § 924(c)(3)(A). But the Supreme Court recently held in Taylor that attempted Hobbs Act robbery is not a “crime of violence” under section 924(c). 142 S. Ct. at 2020. So we must vacate Caldwell’s con- viction. We remand for the district court to resentence Caldwell for his remaining counts of conviction. See United States v. Fowler, 749 F.3d 1010, 1017 (11th Cir. 2014). USCA11 Case: 19-15024 Document: 175-1 Date Filed: 08/16/2023 Page: 43 of 43 19-15024 Opinion of the Court 43 IV. CONCLUSION We VACATE Caldwell’s conviction on count 17 of the in- dictment and his sentence and REMAND for resentencing. We AFFIRM all the other convictions and sentences.

United States v. Antarious Caldwell

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