United States v. Wilson

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 19, 2009 Decided May 25, 2010

No. 06-3128

UNITED STATES OF AMERICA,
APPELLEE

v.

GEORGE WILSON, ALSO KNOWN AS SHUG, ALSO KNOWN AS
HERMAN WALKER, ALSO KNOWN AS DONNELL MACK,
APPELLANT

Consolidated with 06-3131, 06-3133, 06-3136, 06-3140

Appeals from the United States District Court
for the District of Columbia
(No. 04cr00128-18)

Richard K. Gilbert, David B. Smith, Steven R. Kiersh, and
Sicilia C. Englert, appointed by the court, argued the cause for
appellants. With them on the briefs were Michael E. Lawlor and
Thomas J. Saunders, appointed by the court. Kristen G. Hughes,
appointed by the court, entered an appearance.

Stratton C. Strand, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Roy W. McLeese
 2

III, Elizabeth Trosman, John Dominguez, and Darlene Soltys,
Assistant U.S. Attorneys.

Before: SENTELLE, Chief Judge, and ROGERS and
KAVANAUGH, Circuit Judges.

Opinion for the Court filed PER CURIAM.

PER CURIAM: A group known as the M Street Crew
operated a massive drug ring in Northeast Washington, D.C.
The Crew sold PCP, as well as ecstasy and some crack cocaine.
From late 2002 through March 2004, the government conducted
an extensive investigation of the M Street Crew’s activities. As
a result of the investigation, 19 defendants were charged with a
variety of federal crimes. In this appeal, five of those
defendants challenge their convictions and sentences. They
raise numerous claims, some common to all defendants and
others specific to one or more defendants. Except for one issue
related to defendant Blackson’s judgment as to which the
government concedes error, we affirm the district court’s
judgments in their entirety.

I

A

We describe the facts in the light most favorable to the
government, as we must in reviewing a jury verdict of guilt.
United States v. Clayborne, 509 F.2d 473, 475 (D.C. Cir. 1974);
United States v. Alexander, 331 F.3d 116, 127 (D.C. Cir. 2003).
The five appellants in this case are John Franklin, William
Robinson, George Wilson, Joseph Blackson, and William
Simmons.
 3

In 2002, the FBI and the Metropolitan Police Department of
Washington, D.C., initiated an intensive investigation of
criminal activity in a four-block area around 18th Street and M
Street in Northeast Washington. Officers viewed the
neighborhood at the time as “an open air drug market.” Mar. 28,
2006 AM Trial Tr. at 95 (Officer Carlton Herndon). The air
smelled of PCP, and the area was filled with broken vials. Id. at
100; id. at 40 (Officer Michael Morawski). Detectives
patrolling the area could easily find bottles of PCP hidden along
the edges of buildings and walkways. Id. at 100 (Officer
Carlton Herndon).

During its investigation, the government uncovered a large-
scale drug ring. John Franklin had a supplier outside the M
Street Crew from whom he bought at least 15 to 20 gallons of
PCP between 2002 and 2004. Mar. 14, 2006 AM Trial Tr. at 65
(Herbert Martin). Franklin, in turn, supplied the M Street Crew
primarily with liquid PCP and ecstasy pills. Mar. 22, 2006 AM
Trial Tr. at 73–74 (Elizabeth Lee); Apr. 19, 2006 PM Trial Tr.
at 29–30 (Roberta Moore).

Franklin’s routine was generally consistent. He would
obtain PCP from his supplier. Then, Franklin’s common-law
wife, Elizabeth Lee, would rebottle the drug into ounce and half-
ounce bottles for Franklin to sell on the street or to lower-level
dealers. Mar. 22, 2006 PM Trial Tr. at 7 (Elizabeth Lee).
Before selling his now-bottled product, Franklin employed a
neighborhood woman, Monica Bell, to “test it out.” Id. at 40,
43. Bell sampled Franklin’s PCP about “three times a week” in
exchange for occasional “free dippers,” cigarettes soaked in
PCP. Apr. 18, 2006 PM Trial Tr. at 82, 86 (Monica Bell).

After testing, Franklin would supply the drugs to the Crew.
Often, these drug transactions would occur in person. See, e.g.,
Apr. 27, 2006 AM Trial Tr. at 85 (Omari Minnis) (“Normally I
 4

might go to him once, twice a week. Get about a ounce, two
ounces.”). When Franklin was not available, however, he
delegated to his lieutenants. See, e.g., Apr. 24, 2006 PM Trial
Tr. at 32, 38 (Ronnie Tucker); Aug. 11, 2003 Wiretap Tr. at 2–3;
May 2, 2006 AM Trial Tr. at 15 (Michael Abney). Franklin sold
PCP to those he supplied in half-ounce bottles for $250 and
ecstasy pills in ten-packs for $100. Mar. 22, 2006 AM Trial Tr.
at 73–74 (Elizabeth Lee); Apr. 20, 2006 PM Trial Tr. at 28–29
(April Jackson).

Franklin’s role was not limited to that of a supplier. At
trial, other members of the Crew described Franklin as their
“organizer” and “leader.” Apr. 24, 2006 AM Trial Tr. at 107
(Ronnie Tucker); May 2, 2006 AM Trial Tr. at 10–12 (Michael
Abney). Indeed, members of the Crew brought Franklin in to
mediate disputes and to “keep[] M Street in order.” May 2,
2006 AM Trial Tr. at 12 (Michael Abney). Even when
uninvited, Franklin often played a mediating role between Crew
members. See id. at 39. When absent from 18th and M,
Franklin would check in on the Crew, sometimes giving advice
about their selling methods. See, e.g., Sept. 30, 2003 Wiretap
Tr. at 2.

Below Franklin in the Crew’s hierarchy were his three
lieutenants: William Robinson, George Wilson, and Joseph
Blackson. May 2, 2006 AM Trial Tr. at 13–15 (Michael
Abney). Those men supplied the Crew with PCP in Franklin’s
absence. Id. at 29; Apr. 24, 2006 PM Trial Tr. at 14–15 (Ronnie
Tucker). The lieutenants would “take on the situations when
John [was] not around as far as money, or drugs or problems
that’s going on that’s involved in the area, keep things intact” so
as not to mess up the Crew’s “money spot.” May 2, 2006 AM
Trial Tr. at 15 (Michael Abney). Their job was “to oversee
everything for the top man. To make sure everything on the
block going the way that he . . . would want it to be and see to it
 5

that its foot soldiers everybody taken care of, everybody
straight.” May 3, 2006 AM Trial Tr. at 22 (Michael Abney).

William “Dee” Robinson was one of Franklin’s closest
friends. Mar. 23, 2006 AM Trial Tr. at 22 (Elizabeth Lee).
Robinson “would hold bottles” of PCP for Franklin when he was
away from 18th and M, Apr. 27, 2006 AM Trial Tr. at 91
(Omari Minnis), and communicated regularly with Franklin
about the Crew’s drug sales and supply, see, e.g., Apr. 24, 2006
PM Trial Tr. at 66–67 (Ronnie Tucker); Aug. 21, 2003 Wiretap
Tr. at 1. On Sundays, which Franklin spent with his family,
Robinson was sometimes in charge of the Crew. See May 2,
2006 AM Trial Tr. at 28–29 (Michael Abney).

George “Shug” Wilson was like a sibling to Franklin. Id. at
35. When Franklin was unavailable, he regularly referred
buyers to Wilson, who sold some of the PCP supplied by
Franklin. Id. at 29; Apr. 24, 2006 PM Trial Tr. at 15 (Ronnie
Tucker). Wilson played an enforcement role in the Crew; he
defended its preeminence in the 18th and M area from outsiders,
sometimes by force. See Sept. 27, 2003 Wiretap Tr. at 1–2; Oct.
3, 2003 Wiretap Tr. at 1, 4–6; May 3, 2006 PM Trial Tr. at
34–35 (Robin Tamika Hazel) (“Shug pulled his gun out on him
and made him leave. . . . Told him to leave from off his block.
This is his block.”). Moreover, like Robinson, Wilson was
sometimes in charge of the Crew in Franklin’s absence. May 2,
2006 AM Trial Tr. at 28–29 (Michael Abney). This authority
position was apparent to onlookers; a police officer who
regularly patrolled 18th and M initially took Wilson to be “in
charge” of the Crew. Mar. 28, 2006 PM Trial Tr. at 11, 13–14
(Officer Carlton Herndon).

Joseph “Joe Black” Blackson, Franklin’s younger brother,
also distributed PCP in Franklin’s absence. In addition,
Blackson held drugs for his brother. Apr. 24, 2006 PM Trial Tr.
 6

at 17–18 (Ronnie Tucker). In his dealings with an undercover
officer, Blackson equated himself with Franklin, stating that
“dealing with John is just as dealing with him.” Apr. 4, 2006
PM Trial Tr. at 97 (Officer Donna Leftridge). Blackson was the
only one of the lieutenants to be absent from the 18th and M
Street area for any length of time during the investigation; he
was arrested on July 29, 2003, when police found drugs in the
glove compartment of his car. Apr. 12, 2006 PM Trial Tr. at
60–74 (Officer Max Luis Salazar). Blackson was then
incarcerated for an indeterminate period of time before returning
to 18th and M. See Reply Br. at 69; Aug. 31, 2006 Sent. Hg. at
67.

Beneath Franklin’s three lieutenants was a class of “foot
soldiers” who made individual sales in the 18th and M area.
May 2, 2006 AM Trial Tr. at 18–19 (Michael Abney). Although
the foot soldiers were numerous, only one foot soldier was tried
with Franklin and is party to this appeal. William “Mike”
Simmons was Franklin’s “loyalest foot soldier.” Id. at 42.
Witnesses variously testified that Simmons was Franklin’s
“[s]idekick,” “runner,” “helper,” “little man,” and “flunky.”
Apr. 19, 2006 PM Trial Tr. at 44 (Roberta Moore); Apr. 27,
2006 AM Trial Tr. at 88 (Omari Minnis). According to one
witness, Simmons would do “[w]hatever [Franklin] told him.
Sell bottles to people. If [Franklin] . . . needed anything done,
he’d do it.” May 2, 2006 AM Trial Tr. at 43 (Michael Abney).
One of Simmons’ most frequent tasks was to deliver drugs to
Franklin or from Franklin to his customers. See, e.g., id. at
51–52; Apr. 19, 2006 PM Trial Tr. at 44 (Roberta Moore); Apr.
24, 2006 PM Trial Tr. at 17 (Ronnie Tucker).

B

The M Street Crew displayed cohesion both as a business
and as a social unit. As a business, the Crew guarded its
 7

territory, permitting only Crew members to sell within the 18th
and M area. Apr. 27, 2006 AM Trial Tr. at 81–82 (Omari
Minnis); Apr. 24, 2006 PM Trial Tr. at 22 (Ronnie Tucker)
(“We ain’t allow nobody to sell drugs around there that wasn’t
from around there.”). The Crew used graffiti to mark its
territory. See, e.g., Record Materials for Appellee at 95–105.
Moreover, the Crew’s monopoly on drug sales within its turf
was strictly enforced; if someone from outside the Crew
attempted to sell drugs in the Crew’s territory, he would “either
get hurt real bad or he wouldn’t make it home.” Apr. 27, 2006
AM Trial Tr. at 82 (Omari Minnis).

Economic order was maintained within the Crew as well.
Franklin and the lieutenants imposed a rotational system of drug
sales whereby the Crew members would “take turns” selling so
that “everybody get[s] a fair share.” Apr. 24, 2006 PM Trial Tr.
at 5 (Ronnie Tucker). Under this system, each Crew member
would be permitted to make a single sale — regardless of the
magnitude of the sale — before relinquishing the turf to another
Crew member. Apr. 27, 2006 AM Trial Tr. at 80 (Omari
Minnis) (“say it was five of us outside, you know, whoever was
outside first goes first, come up second, go second. Don’t
matter how much they wanted or, you know, they wanted eight
dippers it’s your turn.”).

The Crew members also protected their turf and each other
from potential threats in the form of police officers and
outsiders. When police were in the area, Crew members would
alert one another to the potential threat. Mar. 28, 2006 AM Trial
Tr. at 41 (Officer Carlton Herndon) (“When I came into the
area, either on a bike or a car, they would always give a heads
up that I was in the area.”); Apr. 24, 2006 PM Trial Tr. at 7
(Ronnie Tucker) (“We warn each other.”). Similarly, when
outsiders attacked Crew members, the Crew fought back,
sometimes exchanging gunfire. See, e.g., Apr. 27, 2006 PM
 8

Trial Tr. at 6–8 (Omari Minnis); May 2, 2006 AM Trial Tr. at
73–80 (Michael Abney).

Finally, the Crew was a cohesive social unit. Crew
members socialized together, frequenting local dance clubs.
Apr. 6, 2006 AM Trial Tr. at 18–20 (Ricardo Love). Crew
members would flash an M-shaped hand signal to one another,
signaling their membership in the M Street Crew. See Record
Materials for Appellee at 122–23, 125. Musicians at the local
clubs recognized the group as a defined unit, giving a “shout
out” that the M Street Crew was “[i]n the house.” Apr. 6, 2006
AM Trial Tr. at 20–21 (Ricardo Love).

C

The massive investigation of the M Street Crew culminated
in 39 arrests on March 16, 2004. Mar. 10, 2006 AM Trial Tr. at
45 (Agent Joseph Sopata). Among those arrested and later
indicted were Franklin, Robinson, Wilson, Blackson, and
Simmons, appellants here. Those five were tried together. After
a lengthy trial, the jury convicted each defendant of the bulk of
the drug charges leveled against him. The defendants were
acquitted of various weapons and violent crime charges.

The jury convicted Franklin of one count of conspiracy to
distribute and possess with intent to distribute a controlled
substance (Count 1, Judgment of Franklin at 1; Verdict at 1–3);
one count of RICO conspiracy (Count 2, Judgment of Franklin
at 2; Verdict at 12–13); one count of continuing criminal
enterprise (Count 3, Judgment of Franklin at 2; Verdict at 4–11);
16 counts of distribution of and possession with the intent to
distribute PCP, half of which occurred within 1,000 feet of a
school (Counts 8, 10, 17, 21, 30, 36–37, 41–42, 44, 51, 53, 58,
63, 69, and 77, Judgment of Franklin at 2–3; Verdict at 16–20);
three counts of distribution of cocaine base, one of which
 9

occurred within 1,000 feet of a school (Counts 45, 52, and 67,
Judgment of Franklin at 2; Verdict at 17–18); five counts of
distribution of ecstasy and possession with the intent to
distribute ecstasy, two of which occurred within 1,000 feet of a
school (Counts 50, 57, 68, and 77–78, Judgment of Franklin at
2–3; Verdict at 17–20); 27 counts of unlawful use of a
communication facility (Counts 83–109, Judgment of Franklin
at 3; Verdict at 20–23); two counts of use or possession of a
firearm during a drug-trafficking offense (Counts 135 and 137,
Judgment of Franklin at 3; Verdict at 14–15); and two counts of
being a felon in possession of a firearm (Counts 136 and 138,
Judgment of Franklin at 3; Verdict at 14–15). Franklin was also
acquitted of several of the charges against him, most notably of
all murder, assault, and related charges (Counts 2, 129–32,
148–49, and 158–59, Verdict at 12, 14–15). In acquitting
Franklin of those charges, the jury found that the RICO
conspiracy did not involve murder (Count 2, Verdict at 12).

Franklin’s lieutenants were also convicted of both narcotics
and RICO conspiracies, as well as of various distribution
charges, but acquitted of violent crime charges. Unlike
Franklin, none of the lieutenants was charged with leading a
continuing criminal enterprise.

Blackson was convicted of one count of conspiracy to
distribute and possess with intent to distribute a controlled
substance (Count 1, Judgment of Blackson at 1; Verdict at
24–26); one count of RICO conspiracy (Count 2, Judgment of
Blackson at 2; Verdict at 26–27); eleven counts of distribution
of PCP, most occurring within 1,000 feet of a school (Counts 6,
9–10, 13, 16, 19, 23–24, 27, 33, and 42, Judgment of Blackson
at 2; Verdict at 27–29); two counts of possession with intent to
distribute ecstasy (Counts 7 and 43, Judgment of Blackson at 2;
Verdict at 27, 29); one count of using, carrying, or possessing a
firearm during a drug trafficking crime (Count 133, Judgment of
 10

Blackson at 2; Verdict at 27); and one count of possession of a
firearm by a convicted felon (Count 134, Judgment of Blackson
at 2; Verdict at 27). The jury found that the RICO conspiracy
did not involve murder (Count 2, Verdict at 26).

Robinson, similarly, was convicted of one count of
conspiracy to distribute and possess with intent to distribute a
controlled substance (Count 1, Judgment of Robinson at 1;
Verdict at 30–31); one count of RICO conspiracy (Count 2,
Judgment of Robinson at 2; Verdict at 32); two counts of PCP
distribution, one within 1,000 feet of a school (Counts 36 and
58, Judgment of Robinson at 2; Verdict at 33); one count of
possession with the intent to distribute PCP (Count 73,
Judgment of Robinson at 2; Verdict at 33); and three counts of
unlawful use of a communication facility (Counts 96, 101, and
103, Judgment of Robinson at 2; Verdict at 34). The jury found
that the RICO conspiracy did not involve murder (Count 2,
Verdict at 32).

Wilson, the third lieutenant, was convicted of one count of
conspiracy to distribute and possess with an intent to distribute
a controlled substance (Count 1, Judgment of Wilson at 1;
Verdict at 41–42); one count of RICO conspiracy (Count 2,
Judgment of Wilson at 2; Verdict at 43); and three counts of
unlawful use of a communication facility (Counts 104–06,
Judgment of Wilson at 2; Verdict at 44). The jury found that the
RICO conspiracy did not involve murder (Count 2, Verdict at
43).

Finally, Simmons, the only foot soldier to be tried with
Franklin and the lieutenants, was convicted of one count of
conspiracy to distribute and possess with intent to distribute a
controlled substance (Count 1, Judgment of Simmons at 1;
Verdict at 35–36); one count of RICO conspiracy (Count 2,
Judgment of Simmons at 2; Verdict at 37); and three counts of
 11

distribution of PCP within 1,000 feet of a school (Counts 8, 10,
and 30, Judgment of Simmons at 2; Verdict at 39–40). The jury
acquitted Simmons of all murder, assault, and weapons charges
(Counts 2, 129–32, 148–49, and 158–59, Verdict at 37–39). In
doing so, it found that the RICO conspiracy did not involve
murder (Count 2, Verdict at 37).

At sentencing, Franklin, Robinson, and Wilson were all
sentenced to life in prison. Judgment of Franklin at 4; Judgment
of Robinson at 3; Judgment of Wilson at 3. Blackson was
sentenced to a total of 35 years of imprisonment, followed by 10
years of supervised release. Judgment of Blackson at 3–4.
Simmons was sentenced to 22 years of imprisonment, followed
by five years of supervised release. Judgment of Simmons at
3–4.

D

On appeal, appellants raise eleven discrete challenges to
their convictions and sentences.

First, all appellants argue that their cross-examination of the
government’s key witness, Officer Donna Leftridge, was
improperly limited in violation of the Confrontation Clause.

Second, Blackson, Robinson, Simmons, and Wilson
contend that they were prejudiced by the district court’s
improper denial of their motion for severance. They argue that
statements made by Franklin’s counsel during his opening and
closing statements destroyed their ability to receive a fair and
impartial trial.

Third, all five appellants assert that the district court erred
in its jury instructions concerning the RICO conspiracy charge.
Specifically, they argue that the district court erred (1) in not
 12

instructing the jury that a conviction for RICO conspiracy
requires a finding that a defendant participated in the operation
or management of the enterprise; (2) in not instructing the jury
that an “enterprise” must include an element of structure; and (3)
in not instructing the jury that continuity is a necessary element
of a “pattern of racketeering activity.”

Fourth, Simmons contends that the prosecution improperly
vouched for witness Roberta Moore. In doing so, Simmons
claims, the government improperly invoked the authority of both
the government and the court to support Moore’s veracity.

Fifth, Simmons argues that the district court abused its
discretion in denying his motion to strike testimony about his
lifestyle that he deems “extraordinarily prejudicial.”
Appellants’ Br. at 16.

Sixth, Robinson contends that the district court erred in
denying him permission to call two lay witnesses who were
familiar with drug dealing and with the 18th and M Street area
respectively. The district court ruled that the two witnesses’
testimony would amount to expert testimony under Rule of
Evidence 702. Robinson contends, however, that the two
witnesses were qualified to testify as lay witnesses based on
their firsthand experience of drug sales and of the 18th and M
area.

Seventh, Wilson argues that the district court erred in
denying his motion to suppress evidence obtained from a
warrantless search of his fiancée’s house. Wilson contends that
the consent furnished to police by his fiancée was involuntarily
procured. He argues that all evidence from the search was
obtained unlawfully and should have been suppressed.
 13

Eighth, Franklin claims that the evidence presented at trial
was insufficient to support the jury’s finding that he engaged in
a continuing criminal enterprise. Specifically, he contends that
insufficient evidence was presented at trial to prove that he
organized, supervised, or managed five or more people.

Ninth, Blackson claims that the district court erred in
entering judgment against him for a count of which he was not
convicted.

Tenth, Simmons argues that the district court erred both
procedurally and substantively in imposing an above-Guidelines
sentence on him. Procedurally, he contends first that the district
court impermissibly relied on his history of drug abuse in
increasing his sentence and, second, that the district court failed
to provide him with a written statement of the reasons for the
variance. Substantively, he alleges that the district court failed
to take into account aspects of his personal history that would
have counseled in favor of a lower sentence.

Finally, Robinson, Wilson, and Blackson contend that the
district court based their sentences on erroneous factual findings.
First, all three appellants claim the district court incorrectly
attributed 30 or more kilograms of PCP to each of them.
Second, Wilson and Blackson contend that the district court
incorrectly imposed a three-level Guideline enhancement for
their role in the conspiracy.

II

Appellants contend their rights under the Confrontation
Clause of the Sixth Amendment to the Constitution were
violated in two respects: (A) when the district court limited
cross-examination of undercover police officer Donna Leftridge
by failing to order the government to disclose during trial
 14

information it had failed to turn over as required by Brady v.
Maryland, 373 U.S. 83 (1963), regarding an ongoing
investigation of Officer Leftridge; and (B) when the district
court prohibited all questioning regarding Officer Leftridge’s
alleged inappropriate social relationship with appellant John
Franklin. Appellants maintain that they were consequently
deprived of “all opportunities to impeach Leftridge’s
credibility.” Appellants’ Br. at 23.

The Sixth Amendment provides: “In all criminal
prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him . . . .” U.S. CONST.
amend. VI. The Amendment guarantees a defendant the right to
cross-examine the witnesses against him or her, and it is “the
principal means by which the believability of a witness and the
truth of his testimony are tested.” Davis v. Alaska, 415 U.S.
308, 315–16 (1974). The district court must “give a defendant
a ‘realistic opportunity to ferret out a potential source of bias.’”
United States v. Davis, 127 F.3d 68, 70 (D.C. Cir. 1997)
(quoting United States v. Derr, 990 F.2d 1330, 1334 (D.C. Cir.
1993)). “[A] criminal defendant states a violation of the
Confrontation Clause by showing that he was prohibited from
engaging in otherwise appropriate cross-examination designed
to show a prototypical form of bias on the part of the witness,
and thereby ‘to expose to the jury the facts from which jurors .
. . could appropriately draw inferences relating to the reliability
of the witness.’” Delaware v. Van Arsdall, 475 U.S. 673, 680
(1986) (quoting Davis v. Alaska, 415 U.S. at 318). Our review
of the district court’s legal conclusions regarding the
Confrontation Clause is de novo. United States v. Carson, 455
F.3d 336, 362 (D.C. Cir. 2006).
 15

A

Appellants and their counsel did not learn until March 28,
2006, in the middle of the trial, that Leftridge had been
suspended by the Internal Affairs Division (“IAD”) of the
Metropolitan Police Department (“MPD”) due to an ongoing
investigation. The day before, on March 27, prosecutors ex
parte informed the district court that Leftridge had been
suspended with pay by IAD due to [REDACTED]
Leftridge had
confirmed to the prosecutors that she did not know the basis of
the investigation. The prosecutors advised the district court that
Leftridge was under investigation [REDACTED]

Leftridge was placed on the “Lewis List”
of MPD officers who are under investigation.1

The district court concluded that the nature of the ongoing
investigation of Leftridge was of limited relevance to her
credibility or any potential bias but directed the prosecutors to
disclose her status to defense counsel. The following day,
March 28, 2006, the government disclosed to defense counsel,
in writing, that: (1) IAD had suspended Leftridge with pay in
early December 2005; (2) Leftridge was on the Lewis list; (3)
Leftridge knew she was under investigation but not why or by
whom; and (4) Leftridge was not under investigation by the U.S.
Attorney’s Office for the District of Columbia. The

1
See United States v. (Walter) Bowie, 198 F.3d 905, 907–08
(D.C. Cir. 1999); Lewis v. United States, 408 A.2d 303 (D.C. 1979).
 16

government’s disclosure did not mention [REDACTED]

Defense counsel sought additional disclosure pursuant to
Brady, 373 U.S. 83, and Giglio v. United States, 405 U.S. 150
(1972), or, failing that, an in camera review by the district court
of the evidence supporting the government’s limited disclosure.
The district court denied the request for additional disclosure,
stating it had already conducted an in camera review. However,
on March 30, 2006, the district court requested confirmation of
the ex parte information [REDACTED]

In United States v. Bagley, 473 U.S. 667 (1985), the
Supreme Court held that the withholding of potentially relevant
impeachment evidence does not implicate the Confrontation
Clause in the sense of “any direct restriction on the scope of
cross-examination.” Id. at 678. Instead, “the constitutional
error, if any,” involves “the Government’s failure to assist the
defense by disclosing information that might have been helpful
in conducting the cross-examination.” Id. This latter duty arises
under the Due Process Clause of the Fifth Amendment. See id.
at 675; see also Brady, 373 U.S. at 86. As a plurality explained
in Pennsylvania v. Ritchie, 480 U.S. 39 (1987), the
Confrontation Clause did not create “a constitutionally
compelled rule of pretrial discovery” of information that might
be useful to the defense in preparing for trial. Id. at 52. Instead,
“the right to confrontation is a trial right, designed to prevent
improper restrictions on the types of questions that defense
 17

counsel may ask during cross-examination.” Id. (emphasis in
original). This court has adopted the plurality’s holding. United
States v. Tarantino, 846 F.2d 1384, 1415–16 (D.C. Cir. 1988).
Based on their access to the ex parte information of March 27,
2006 for the first time after filing their opening brief, appellants
have added to their Confrontation Clause contention a Brady
claim regarding the investigation of Leftridge.

The Supreme Court held in Brady that “the suppression by
the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or
bad faith of the prosecution.” 373 U.S. at 87. Thereafter the
Court held that such disclosure is mandatory regardless of
whether a defendant requests it, United States v. Agurs, 427 U.S.
97, 107 (1976), and that impeachment evidence must also be
disclosed, see Bagley, 473 U.S. at 676; Giglio, 405 U.S. at 154.
To determine whether there has been a Brady violation, courts
apply a three-part test. “The evidence at issue must [1] be
favorable to the accused, either because it is exculpatory, or
because it is impeaching; that evidence must [2] have been
suppressed by the [government], either willfully or
inadvertently; and [3] prejudice must have ensued.” Strickler v.
Greene, 527 U.S. 263, 281–82 (1999). For prejudice to have
ensued, there must be a “reasonable probability that, had the
evidence been disclosed to the defense, the result of the
proceeding would have been different,” id. at 280 (internal
quotation marks omitted), i.e., “the favorable evidence could
reasonably be taken to put the whole case in such a different
light as to undermine confidence in the verdict,” Kyles v.
Whitley, 514 U.S. 419, 435 (1995); see Bagley, 473 U.S. at 682.

Appellants contend that the district court erred by failing to
order the government to make two required disclosures: (1) the
subject matter of the investigation of Leftridge and (2)
 18

[REDACTED] This court has held that “to
be ‘material’ under Brady, undisclosed information or evidence
acquired through that information must be admissible.” Derr,
990 F.2d at 1336; see United States v. Johnson, 592 F.3d 164,
171 (D.C. Cir. 2010); see also Wood v. Bartholomew, 516 U.S.
1, 6 (1995) (per curiam). Our review of the district court’s
evidentiary rulings is for abuse of discretion. United States v.
Lin, 101 F.3d 760, 768 (D.C. Cir. 1996).

With regard to non-disclosure of the subject matter of the
investigation, the government persuasively maintains that there
was no Brady violation because the undisclosed information
would not have been admissible at trial, and appellants do not
maintain that their knowledge of it could have led to admissible
evidence. Although the defense might have sought to use the
undisclosed information about the subject matter of the
investigation to impeach Leftridge pursuant to Federal Rule of
Evidence 608(b),2 the district court would properly have ruled
such cross-examination improper because the subject matter of
the internal investigation [REDACTED]
would not have been probative
of Leftridge’s truthfulness. Without additional evidence of
wrongdoing beyond bald assertions [REDACTED]
, impeachment would have been

2
Rule 608(b) provides in relevant part:

Specific instances of the conduct of a witness, for the purpose of
attacking or supporting the witness’ character for truthfulness .
. . may . . . in the discretion of the court, if probative of
truthfulness or untruthfulness, be inquired into on
cross-examination of the witness (1) concerning the witness’
character for truthfulness or untruthfulness, or (2) concerning the
character for truthfulness or untruthfulness of another witness as
to which character the witness being cross-examined has
testified.
 19

based on unproven allegations. As this court stated in United
States v. Morrison, 98 F.3d 619, 628 (D.C. Cir. 1996), “the mere
filing of a complaint [against a witness] is not probative of
truthfulness or untruthfulness.” (emphasis in original) (internal
quotation marks omitted).

Additionally, had the defense sought admission of the
subject matter of the investigation pursuant to Federal Rule of
Evidence 404(b)3 to show Leftridge’s motive or bias, see
generally United States v. Crowder, 141 F.3d 1202, 1206,
1209–10 (D.C. Cir. 1998) (en banc), it is difficult to understand
how the subject matter, rather than the fact of the existence of
the investigation, would have assisted in portraying Leftridge as
biased. Appellant William Simmons’ counsel cross-examined
Leftridge about her suspension without pay and the suspension
of her police powers as a result of the ongoing investigation,
eliciting her admission to the suspension but also her denial of
knowledge of the basis for the investigation. Presumably, based
upon her suspension, Leftridge could have been motivated to
testify falsely against appellants in order to curry favor with the
government. But the fact that she was being investigated at all
provided that potential motive. Even assuming information
about the subject matter of the investigation was probative of
bias, the district court would properly have excluded cross-
examination pursuant to Rule 403 because “its probative value
[wa]s substantially outweighed by the danger of unfair

3
Rule 404(b) provides in relevant part:

Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in
conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident.
 20

prejudice.” FED. R. EVID. 403. As the district court concluded,
the “prejudice to this officer given the uncertainty of the
[allegations] is quite high, the prejudice to her career and her
credibility is quite high.” Mar. 27, 2006 Ex Parte Tr. at 10.
That risk of prejudice would have substantially outweighed the
minimal probative value of the evidence.

By contrast, the undisclosed information [REDACTED]

would have been admissible pursuant
to Rule 404(b) to show motive and bias. See United States v.
(Juan) Bowie, 232 F.3d 923, 930 (D.C. Cir. 2000).
[REDACTED]

On direct
examination Leftridge denied she had been told why she was
under investigation and why her police powers had been
suspended; on cross-examination she acknowledged that she
believed she was under investigation by IAD. These statements
do not rule out Leftridge’s knowledge [REDACTED]

Despite Leftridge’s apparent knowledge [REDACTED]
, the government
disclosed to the defense only that she was suspended by IAD
and was “under investigation.” Defense counsel understood the
disclosure to mean that the investigation was being conducted
by IAD only, as evidenced, for example, by defense counsel’s
cross-examination of Leftridge: “You are being investigated by
the internal affairs division of the Metropolitan Police
 21

Department?” Apr. 5, 2006 AM Trial Tr. at 77. Upon obtaining
access to sealed materials after filing their opening brief,
appellants contended in their reply brief that requiring Leftridge
to admit [REDACTED]
would have strengthened their argument to
the jury that Leftridge’s testimony was biased due to an
“incentive to curry favor with the government.” Reply Br. at
13–14, 16. This argument is compelling. [REDACTED]

It is true that the government disclosed to the defense that
the U.S. Attorney’s Office for the District of Columbia was not
investigating Leftridge, thus lessening the potential desire for
Leftridge to curry favor with the prosecutors who were
conducting appellants’ prosecution. But this disclosure also
implied, as defense counsel reasonably understood,
[REDACTED]

In any event, this aspect of the disclosure
cannot excuse the government’s non-disclosure [REDACTED]

The defense was entitled to
 22

information that would strengthen its impeachment of Leftridge,
whom the defense viewed as a key government witness because
she interpreted video and audio tapes of the defendants and also
engaged in repeated undercover drug purchases with several
defendants, including appellants (except Wilson). See United
States v. (Walter) Bowie, 198 F.3d 905, 909 (D.C. Cir. 1999).
Given its relevance as impeachment evidence, the government
had a duty under Brady to make a timely pretrial disclosure to
the defense [REDACTED]
See United States v. Pollack, 534 F.2d
964, 973 (D.C. Cir. 1976). The district court, in turn, erred in
limiting cross-examination of Leftridge by failing to order the
government to disclose this admissible evidence to the defense
during trial.

The question remains whether the undisclosed evidence
[REDACTED] was “material,” i.e.,
was there “a reasonable probability that the result of the trial
would have been different if the suppressed [evidence] had been
disclosed to the defense.” Strickler, 527 U.S. at 289 (internal
quotation marks omitted). The “materiality inquiry is not just a
matter of determining whether, after discounting the inculpatory
evidence in light of the undisclosed evidence, the remaining
evidence is sufficient to support the jury’s conclusions.” Id. at
290. Instead, a court must ask whether “the favorable evidence
could reasonably be taken to put the whole case in such a
different light as to undermine confidence in the verdict.” Kyles,
527 U.S. at 435.

As an initial matter, it is worth noting that a reasonable jury
could easily have concluded that Leftridge [REDACTED]
“would be careful not to worsen
[her] predicament” by perjuring herself, see (Walter) Bowie, 198
F.3d at 909. Secondly, as appellants must concede, and as the
district court found, much of Leftridge’s testimony was
 23

corroborated by physical evidence including video and audio
tapes, and to the extent Leftridge testified to what was also
demonstrated by physical evidence, her credibility would be
unimpaired. See id. at 911. Thirdly, given the physical
evidence corroborating much of Leftridge’s testimony,
appellants cannot show materiality under Brady by claiming that
any bias would have affected the entirety of her testimony.
Instead, appellants must contend that Leftridge was careful to
mislead the jury only where her testimony would not go beyond
what the physical evidence demonstrated — a degree of
tailoring that would appear implausible.

In any event, we conclude, upon review of the likely effect
of informing the jury of the undisclosed evidence [REDACTED]
, that there is not a reasonable
probability that the result of the trial would have been different
for any appellant. Leftridge testified regarding the drug and
RICO conspiracies (Counts 1 and 2), of which each appellant
was convicted; the continuing criminal enterprise (Count 3) of
which Franklin was convicted; and the drug distribution counts
of which Franklin, Blackson, Robinson, and Simmons were
convicted. As regards the drug distribution counts, Franklin
conceded his guilt, Wilson faced no charges, and Robinson did
not contest the single count against him, where he is plainly
visible on videotape. Therefore, only the drug distribution
convictions of Blackson and Simmons could even theoretically
be called into question through the impeachment of Leftridge
with the undisclosed evidence.

1

As to the convictions of all appellants for drug conspiracy
(Count 1) and RICO conspiracy (Count 2), and the conviction of
Franklin for continuing criminal enterprise (Count 3), the non-
disclosure [REDACTED] was
 24

not material. Each appellant was convicted of conspiracy to
distribute and possess with intent to distribute one kilogram or
more of phencyclidine (“PCP”), and 50 grams or more of
cocaine base in violation of 21 U.S.C. §§ 846, 841(a)(1),
841(b)(1)(A)(iii), (iv). The volume of PCP distributed, 15–20
gallons — equivalent to 39–52 kilograms — was proven
through the testimony of Franklin’s supplier, Herbert Martin.
Each appellant’s involvement was proven in multiple ways
without Leftridge’s testimony.

• Count 1. The government demonstrated the existence of
the conspiracy largely through evidence from cooperating
members of the M Street Crew, through wiretaps of Franklin’s
cellphone, and through the physical evidence accumulated
during Leftridge’s undercover buys. For instance, cooperator
Ronnie Tucker identified Joseph Blackson, “Mike” Simmons,
“Dee” Robinson, and “Shug” Wilson as selling drugs, and
recognized John Franklin as the leader of the group. Tucker also
testified that “we all sold drugs together. Besides that [we]
watch each other’s back, make sure everybody was all right.”
Apr. 24, 2006 PM Trial Tr. at 4–5. Similarly, cooperator
Michael Abney testified that the M Street Crew would do “a
variety of things” together including “selling drugs.” May 2,
2006 AM Trial Tr. at 9. He named Franklin as the leader,
Blackson, Robinson, and Wilson as Franklin’s lieutenants, and
Simmons as Franklin’s most loyal foot soldier. The wiretap,
audio, and video evidence corroborated the testimony of the
cooperators, who were impeached on cross-examination, and
provided ample evidence of conspiracy. For example, according
to the transcript of Franklin’s wiretapped cellphone call on
August 11, 2003, Franklin told Tucker to buy PCP from
Robinson rather than himself. And on the November 21, 2002
videotape recording, Leftridge bought PCP at 18th and M
Streets from someone (not visible on the recording) who
identified himself as “Joe” and who eventually gave her his
 25

cellphone number. Later, on January 7, 2003, when Leftridge
came back to the area to buy from “Joe,” she instead bought
PCP from John Franklin, who is clearly visible on videotape,
and referred to “Joe” as his brother. When Franklin exited
Leftridge’s car, he yelled “Mike” and another individual came
to the passenger window and delivered a vial. That individual’s
face is plainly visible. On April 10, 2003, following a cellphone
conversation with Franklin, that same individual is seen on
videotape getting into the car to deliver drugs to Leftridge.
Again, his face was plainly visible, and a juror would have been
able to recognize him in both instances as Simmons.

The above represents only a small part of the evidence
demonstrating a conspiracy under 18 U.S.C. § 846. Even were
Leftridge’s testimony discredited by the undisclosed evidence,
there is not a reasonable probability of a different verdict on
Count 1 for any appellant.

• Count 2. Similarly, each appellant was convicted of
conspiracy under RICO, 18 U.S.C. § 1962(d). Pursuant to the
district court’s instructions, the jury had to find: (1) an enterprise
— in this case an illegal association in fact — existed; (2) the
enterprise engaged in or affected interstate commerce; (3)
individual defendants knowingly and intentionally agreed with
another person to conduct the affairs of the enterprise; and (4)
each defendant knowingly and willfully agreed that he or some
other member of the conspiracy would commit at least two
racketeering acts. See infra Part IV. Elements one and three
appear to have been proven primarily through cooperators. For
instance, Abney described the structure of the M Street Crew,
and Tucker described each of the five appellants as “members”
of M Street. Leftridge’s testimony as to individual buys added
little information about the M Street Crew’s structure, but the
physical evidence accompanying her buys did corroborate the
cooperators’ testimony. For example, on March 26, 2003
 26

Blackson told Leftridge that “everybody . . . buy from us.” Mar.
26, 2003 Wiretap Tr. at 4. As to element four, impeachment of
Leftridge’s testimony with the undisclosed information would
have done nothing to undermine the evidence that each appellant
committed two or more racketeering acts. As noted, Franklin
conceded his guilt as to all of the drug distribution charges.
Wilson was not charged with drug distribution, so the two
racketeering acts of which the jury found him guilty could not
have involved Leftridge’s undercover buys. Robinson’s guilt
was plain on videotape showing the May 21, 2003 sale with
which he was charged, his sole possible racketeering act related
to Leftridge’s undercover work. Blackson is readily visible on
videotape of the March 26, 2003 undercover buy and gave
Leftridge his cellphone number and referred to himself as “Joe”
during the November 21, 2002 buy, effectively identifying
himself as the seller. Simmons is twice seen on videotape
delivering drugs to Leftridge; he conceded guilt as to the April
10, 2003 buy.

Again, the above are only examples of the evidence of guilt
that render a different result on Count 2 highly improbable even
were the jury, based on the undisclosed evidence, to discount
Leftridge’s testimony.

• Count 3. Franklin was charged with being the principal
administrator, organizer, or leader of a continuing criminal
enterprise, in violation of 21 U.S.C. § 848. This count required
the government to prove that he supervised five or more
persons. Evidence unrelated to Leftridge’s testimony showed
that Franklin supervised five or more people. See infra Part IX.
Although appellants suggest that Leftridge provided the only
evidence that Franklin and Blackson worked together and that
Franklin directed other members of the Crew to deliver PCP to
a buyer, this ignores the physical videotape evidence of
Leftridge’s buys. For instance, on January 7 and April 10, 2003,
 27

Simmons’ face is visible on videotape as he delivered drugs
immediately after Leftridge spoke to Franklin. And on January
22, 2003, after Leftridge contemporaneously identified “Joe”
[Blackson] and asked him for a “whole one,” Franklin got into
Leftridge’s car, took Leftridge’s money, and asked her why
“Joe” gave her a good price and later, “what’s up with you and
Joe . . . what’s up with you and my little brother?” Jan. 22, 2003
Wiretap Tr. at 1, 3, 6.

The physical evidence thus demonstrates, without
Leftridge’s testimony, that Simmons acted as Franklin’s runner
and that Blackson and Franklin worked together. Undermining
Leftridge’s credibility through impeachment with the
undisclosed evidence would therefore have had no impact on
Franklin’s conviction of Count 3. Although Franklin challenges
the sufficiency of the evidence that he managed at least five
people, see infra Part IX, his Count 3 conviction was not based
in large part on Leftridge’s testimony and, to the extent her
testimony related to the Count 3 charge, it is corroborated by
physical evidence.

2

Joseph Blackson was convicted of eleven counts of drug
distribution, from November 21, 2002 (Count 6) through July
16, 2003 (Count 42). According to the government’s brief, and
uncontested in appellants’ reply brief, Blackson acknowledged
his guilt of distribution on March 26 and April 30, 2003 (Counts
27 and 33). Further, neither at trial nor on appeal has Blackson
contested the identification of his voice with respect to the
recorded undercover buys by Leftridge or the wiretapped
cellphone calls. The transcripts of those recorded buys and calls
identify Blackson as selling drugs to Leftridge on eight
occasions (Counts 9, 10, 13, 16, 19, 23–24, and 42). During the
November 21, 2002 sale (Count 6), Blackson’s voice is audible
 28

and matches the voice on the audiotape for March 26, 2003
(Count 27), a count of which Blackson acknowledged guilt.
And during the same November 21, 2002 sale, Blackson gave
Leftridge his cellphone number and identified himself as “Joe.”
Other recorded evidence also supports Blackson’s convictions.
On January 15, 2003 (Count 9), Blackson noted he had been “on
house arrest for a minute,” Jan. 15, 2003 Wiretap Tr. at 2, which
corresponded with his arrest on January 3, 2003. On several
occasions, Leftridge greeted Blackson by name (Counts 16, 23,
and 42), and she frequently identified Blackson
contemporaneously to her supervisors before or after buying
drugs (Counts 10, 13, and 24).

As these examples indicate, the evidence against Blackson
on drug distribution was overwhelming, and there is no
reasonable probability that any of the distribution verdicts would
have been different had Leftridge’s testimony been impeached
by the undisclosed evidence.

3

Appellants contend that impeachment of Leftridge with the
undisclosed evidence would have especially undermined the
evidence against William Simmons for distribution of PCP
within 1,000 feet of a school on January 7 and 22 and April 10,
2003 (Counts 8, 10, and 30). However, Simmons is visible on
videotape handing drugs to Leftridge on April 10, 2003.
Simmons also is visible on videotape of the sale on January 7,
2003, when Franklin exited the car, shouted “Mike,” and
Simmons appeared at the passenger door to deliver a vial of
drugs to Leftridge.

Appellants note that on January 7 and April 10 the police
contemporaneously had difficulty identifying Simmons. But
this is unremarkable because Leftridge testified that at the time
 29

of the April 10, 2003 buy she had not yet heard of Simmons. It
is a different question whether there is a reasonable probability
that a jury, viewing Simmons in the courtroom and on
videotape, would not have convicted him of Counts 8, 10, and
30 had Leftridge’s testimony been impeached by the undisclosed
evidence. Given the unambiguous physical evidence, there is
not such a reasonable probability. This is true even as to the
January 22, 2003 buy (Count 10), which is a closer call because
the face of the individual on videotape delivering the drugs to
Leftridge was partially obscured by a ski mask. Even without
the videotape and Leftridge’s testimony, however, the evidence
showed: (1) During that buy, Franklin stated that the person
about to deliver the PCP was his “cousin,” “Mike,” Jan. 22,
2003 Wiretap Tr. at 6; (2) On April 10, 2003, the next time he
saw Leftridge, Simmons acknowledged that he had “done some
business” with her before “round on 18th Place,” Apr. 10, 2003
Wiretap Tr. at 3; and (3) cooperators testified that Simmons was
Franklin’s runner. Although the credibility of the cooperators
was impeached, their identification of Simmons as Franklin’s
runner is supported by evidence that Simmons delivered drugs
to Leftridge on two other occasions. Leftridge’s testimony that
Simmons delivered the drugs on January 22 was not inconsistent
with any of the physical evidence. Moreover, the evidence that
Simmons was Franklin’s runner is secondary to the most
damning evidence against Simmons on Count 10: the videotape
of Franklin’s contemporaneous identification of his cousin,
“Mike.” With that evidence — alongside the evidence of
Simmons’ previous history as Franklin’s runner and two other
deliveries to Leftridge — there is not a reasonable probability
that a jury would have failed to convict Simmons of the January
22, 2003 sale if Leftridge’s testimony had been impeached by
the undisclosed evidence.

Accordingly, appellants cannot succeed on either their first
Confrontation Clause contention or their Brady claim. The
 30

undisclosed evidence regarding the investigation of Leftridge
was not “material” under Brady. And, in view of the
overwhelming evidence of appellants’ guilt, any error by the
district court in limiting cross-examination by failing to order
the government to provide the defense with the undisclosed
evidence regarding the investigation of Leftridge was harmless
beyond a reasonable doubt, see Chapman v. California, 386 U.S.
18, 24 (1967).

B

Appellants contend that their rights under the Confrontation
Clause were also violated because the district court improperly
prohibited them from questioning Leftridge about an
inappropriate social relationship that she had with appellant John
Franklin while she was working undercover in the investigation
of the M Street Crew.

During the trial, on March 30, 2006, Franklin’s counsel
made an ex parte proffer to the district court that Franklin
claimed that he and Leftridge had a social relationship beyond
the scope of her role as an undercover officer. Franklin claimed
that he and Leftridge had met about six times: For instance,
they had dinner at Union Station, they went to the movies
together on at least one occasion, and Franklin had loaned
Leftridge $1,000, which she repaid approximately one week
later. In support of the proffer, Franklin’s counsel stated that
Franklin was willing to testify under oath out of the presence of
the jury about the social contacts. Further, his counsel pointed
to purportedly corroborating evidence, stating that wiretap
recordings indicated Franklin had seen Leftridge in her personal
car; recordings of Franklin asking Leftridge what car she was
driving showed, counsel asserted, that there had been contact
beyond the scope of the undercover investigation. Franklin’s
counsel argued this evidence would “tend to show that
 31

[Leftridge] is not reliable,” or “at a minimum [had] terribly bad
judgment,” and that “perhaps there’s some kind of bias to
protect herself at this point should those allegations be true.”
Apr. 3, 2006 AM Trial Tr. at 4. After the district court informed
the prosecutor of Franklin’s proffer, the prosecutor reported to
the district court that Leftridge had “flatly, categorically
denie[d]” Franklin’s allegations and would deny them on the
witness stand. Mar. 30, 2006 PM Trial Tr. at 20.

The district court ruled it would not allow any cross-
examination of Leftridge about the alleged social relationship.
While not assessing the credibility of the allegations, the district
court reasoned that whether Leftridge exercised bad judgment
in having a social relationship with a target “doesn’t go directly
to her credibility or her truthfulness.” Apr. 3, 2006 AM Trial Tr.
at 6. In the district court’s view, because “everything to which
[Leftridge] is testifying is supported by video and audio tape,”
little room was left to impeach her credibility. Id. Our review
is for abuse of discretion, see Lin, 101 F.3d at 768, not for plain
error, as the government suggests, because the district court
cited authority addressing limitations on cross-examination —
namely Lin and United States v. Whitmore, 359 F.3d 609 (D.C.
Cir. 2004) — making it “apparent from the context,” FED. R.
EVID. 103(a)(1), that the defense was making a Confrontation
Clause claim.

The Supreme Court has instructed with regard to cross-
examination to expose potential bias of a prosecution witness,
that “trial judges retain wide latitude insofar as the
Confrontation Clause is concerned to impose reasonable limits
on such cross-examination based on concerns about, among
other things, harassment, prejudice, confusion of the issues, the
witness’ safety, or interrogation that is repetitive or only
marginally relevant.” Delaware v. Van Arsdall, 475 U.S. at 679.
See Delaware v. Fensterer, 474 U.S. 15, 20 (1985). So too, in
 32

Lin, this court required defense counsel to “have a reasonable
basis for asking questions on cross-examination which tend to
incriminate or degrade the witness and thereby create an
unfounded bias which subsequent testimony cannot fully
dispel.” 101 F.3d at 768 (internal quotation marks omitted). As
a general matter, “the questioner must be in possession of some
facts which support a genuine belief that the witness committed
the offense or the degrading act to which the questioning
relates.” Id. (quoting United States v. Fowler, 465 F.2d 664, 666
(D.C. Cir. 1972)); see Whitmore, 359 F.3d at 622. Because
testimony that Leftridge had an inappropriate social relationship
with the target of an investigation she was helping to conduct
would degrade her, the issue is whether the district court
impermissibly impinged on appellants’ confrontation rights in
concluding that the defense did not have a reasonable basis for
such cross-examination.

The parties disagree about whether the defense proffer
provided a “reasonable basis” to allow cross-examination of
Leftridge and whether Lin applies. In Lin, the defendant sought
to impeach a government witness, Guan Huan Chen, through
cross-examination about Chen’s involvement in a gambling
business located in Chinatown. 101 F.3d at 767. Lin alleged
that Chen was biased against him because Chen sought “to
remove Lin from the Chinatown gambling scene.” Id. The
district court “offered to hold a hearing on the matter outside the
presence of the jury,” but when defense counsel refused, the
district court ruled that the proffer by defense counsel was not,
standing alone, enough to permit the defendant “to initiate a
highly prejudicial line of cross-examination.” Id. This court
affirmed. Recognizing that “[t]he questioning that [defense
counsel] sought to pursue would imply that the [prosecution’s]
witness was involved in illegal activities, and thus would have
been highly prejudicial,” this court concluded that defense
counsel had not met his burden to “show that the proposed line
 33

of cross-examination followed a lead reasonably suggested by
other facts in evidence.” Id. at 768. The court noted the defense
refusal to agree to a hearing outside the presence of the jury and
the district court’s willingness to hear other evidence supporting
the defense theory. Id.

Appellants point out that Franklin’s counsel offered more
factual support for the cross-examination of Leftridge than did
Lin’s counsel in seeking to cross-examine a government
witness. Unlike Lin, Franklin was willing to testify outside the
presence of the jury,4 and the defense proffered recorded
conversations during which Franklin had asked Leftridge on two
occasions about the type of car she was driving, independently
indicating, according to his counsel, that Franklin knew about
her personal car and not just the government car she used for
undercover drug buys. The import of the tapes is not altogether
clear;5 they may simply indicate that Franklin did not realize

4
The government’s position that this offer was withdrawn
when Franklin’s counsel advised the district court that “we have
nothing to add to the proffer we made [last] Thursday,” Apr. 3, 2006
AM Trial Tr. at 4, is not a fair reading of the transcript. Although the
district court did not accept Franklin’s offer to testify, the offer was
made and reaffirmed by his counsel.
5
On April 10, 2003, when Leftridge called Franklin to set up
an undercover buy, he asked her “[w]hen did I give you my number?”
before appearing to realize to whom he was speaking and asking, “Oh.
You drive the Acura?” Apr. 10, 2003 Wiretap Tr. at 1. During the
conversation Leftridge mocks him: “You ain’t even know who you
was talking too [sic]. What you thought it was one of your girls
again?” Id. at 2. The second reference to Leftridge’s car, on May 21,
2003, comes from Leftridge’s side of a conversation: “Huh? Yeah.
I’m on the second one. Awright. It’s, it’s gray. It’s like a dark gray.
Yeah. Awright. Awright. Bye.” May 21, 2003 Wiretap Tr. at 1.
Leftridge testified that “[h]e was asking what car I was driving,” and
 34

with whom he was speaking when Leftridge telephoned him and
needed to know the identity of the car she was driving so he
could tell one of the M Street Crew to give her a vial of drugs
when she arrived on the scene. Although the district court
understood counsel’s reference to late 2003 to refer to
Leftridge’s request for the $1,000 loan, the government suggests
on appeal that there is some uncertainty about when the alleged
social relationship occurred.6 Of course, any uncertainty could
have been explored and potentially resolved had the district
court agreed to hear from Franklin outside the presence of the
jury, and his testimony would have provided the district court
with facts on which allowing cross-examination could turn.

confirmed that she was referring to the same Acura in which she had
conducted previous undercover drug buys. Apr. 3, 2006 PM Trial Tr.
at 33.
6
The trial transcript of March 30, 2006 PM at 6 reads:

Franklin’s counsel: The concern, Your Honor, is,
given this information, we clearly believe and submit that we
need to know more about what Officer Leftridge is being
investigated for to the extent that that information is
available.
And in addition, if there is no information, some
[defense] counsel intend to examine Officer Leftridge with
regard to these contacts with Mr. Franklin in which it is
suggested that money was borrowed from him during this
investigation.
This contact, I should say, lastly, was initiated,
according to Mr. Franklin, by Officer Leftridge, who called
him on his telephone, the phone that he would have been
using when she was dealing with him. That call came in late
2003. (emphasis added)
 35

We need not decide whether Lin applies where a defendant
agrees to testify under oath about facts supporting a proffered
line of cross-examination. Assuming the district court erred in
denying any cross-examination of Leftridge about an
inappropriate social relationship, appellants cannot show the
requisite prejudice. Unlike harmless error analysis, which
focuses on the totality of evidence against a defendant, for
Confrontation Clause purposes the “prejudice inquiry . . .
[focuses] on the particular witness, not on the outcome of the
entire trial.” Delaware v. Van Arsdall, 475 U.S. at 680. Even if
the district court had concluded that there was a reasonable basis
for cross-examining Leftridge about her alleged social
relationship with Franklin, appellants fail to explain how the
social relationship would be relevant to Leftridge’s penchant for
truthfulness, as would be necessary to use the evidence pursuant
to Federal Rule of Evidence 608(b). As the district court
observed, bad judgment is not the same as untruthfulness.
Similarly, had defense counsel cross-examined Leftridge about
the alleged social relationship, the prosecutor had reported that
Leftridge would deny its existence, and the defense would have
been stuck with her denial because specific instances of
untruthfulness are not provable by extrinsic evidence under Rule
608(b), see Whitmore, 359 F.3d at 622. Even if Leftridge
admitted having dinner, going to the movies, and borrowing
money from Franklin, much of her testimony was corroborated
by the physical evidence, and she might have offered a
reasonable explanation for the social relationship relating to her
continuing viability as an undercover officer in the M Street
Crew investigation. Similarly, had the defense sought admission
of evidence of the social relationship pursuant to Rule 404(b) to
demonstrate bias, because of Leftridge’s motive to curry favor
with the government, it is unclear how this would assist the
defense. Even if extrinsic evidence would have been admissible
to prove the social relationship, Franklin’s counsel stated that
Franklin would testify outside the presence of the jury only if his
 36

testimony could not be used against him at trial and, in view of
Franklin’s admissions of drug sales with Leftridge, that Franklin
did not intend to pursue the matter at trial. Absent an evidentiary
basis, a properly instructed jury could not use the questions
Leftridge was asked on cross-examination to infer bias. Cf.
Morrison, 98 F.3d at 628; United States v. Gartmon, 146 F.3d
1015, 1026 (D.C. Cir. 1998).

For these reasons, assuming the district court erred in
barring cross-examination of Leftridge about an inappropriate
social relationship, appellants fail to show prejudice under the
Confrontation Clause. With overwhelming evidence of
appellants’ guilt, see supra Part II.A, any error in preventing this
impeachment of Leftridge was harmless beyond a reasonable
doubt. See Chapman, 386 U.S. at 24. To the extent appellants
contend that the district court abused its discretion under the
federal rules of evidence, any error is harmless because it would
not have “had substantial and injurious effect or influence in
determining the jury’s verdict,” Kotteakos v. United States, 328
U.S. 750, 776 (1946).

III

The appellants other than John Franklin contend that the
district court abused its discretion in denying their motions for
severance of their trials. In particular, they argue that the court’s
refusal to grant severance after Franklin’s counsel conceded guilt
on the drug distribution and communication facility counts
prejudiced their right to a fair trial.

Prior to his opening statement, Franklin’s counsel informed
the court and other defense attorneys that Franklin intended to
concede his guilt on the substantive drug distribution and
communication facility counts. Several of these counts involved
other defendants: Blackson was charged with Franklin with two
 37

of the PCP distribution counts (Counts 10 and 42); Robinson was
charged with two PCP distribution counts and three
communication facility counts (Counts 36, 58, 96, 101, and 103);
Simmons was charged with three distribution counts (Counts 8,
10, and 30); and Wilson was charged with three communication
facility counts (Counts 104–06). Indict. at 40–49. These
defendants each moved to sever, arguing that Franklin’s
admissions, offered without giving them any opportunity to
cross-examine him, would prejudice their right to a fair trial.
The court denied their motions, but instructed Franklin’s counsel
to make it “explicitly clear” that Franklin’s admissions were not
“an admission that anyone else engaged in drug dealing with him
at any time.” Mar. 9, 2006 PM Trial Tr. at 9. In his opening
statement, Franklin’s counsel stated that Franklin admitted guilt
on the PCP and ecstasy distribution counts, the communication
facility counts, and the felon-in-possession-of-a-firearm count.
Id. at 15, 31. He also advised the jury that he did not represent
or speak for the other defendants and that the jury should not
hold Franklin’s admissions against them. Id. at 15–16. After his
opening statement, the court reiterated to the jury that the
statements of counsel (including opening statements) were not
evidence and explained that while Franklin’s counsel had
conceded Franklin’s guilt, he had not admitted to joint activity
with any of his codefendants. Id. at 52.

In his closing statement, Franklin’s counsel reiterated that
his client was guilty on the drug distribution counts and the
communication facility counts. May 22, 2006 AM Trial Tr. at
97–98. He agreed that there was “overwhelming evidence” that
Franklin had distributed PCP, or possessed it with intent to
distribute, on “a number of occasions,” and stated that if the jury
found evidence supporting the drug distribution counts, it could
simply “check guilty, guilty, guilty because we told you that in
the beginning he admitted that.” Id. at 97. In charging the jury,
the court again stated that opening statements and closing
 38

arguments were not evidence. May 17, 2006 AM Trial Tr. at 59.
It also offered this instruction: “Each defendant is entitled to
have his innocence or guilt of the crime for which he is on trial
determined from his own conduct and from the evidence that
applies to him as if he were being tried alone. The guilt or
innocence of any one defendant should not control or influence
your verdict as to the other defendants.” Id. at 79. Blackson,
Robinson, Simmons, and Wilson make a common argument that
failing to sever their trials from Franklin’s was reversible error.
Wilson also argues that he was entitled to severance because of
the disparity between the evidence against him and the evidence
against Franklin. We address these arguments in turn.

A

Rule 8 of the Federal Rules of Criminal Procedure permits
joinder of defendants who “are alleged to have participated in the
same act or transaction, or in the same series of acts or
transactions, constituting an offense or offenses.” FED. R. CRIM.
P. 8(b). Once joined under Rule 8, defendants may seek
severance under Rule 14, which provides that “[i]f the joinder of
offenses or defendants . . . appears to prejudice a defendant or
the government, the court may order separate trials of counts,
sever the defendants’ trials, or provide any other relief that
justice requires.” FED. R. CRIM. P. 14(a). The appellants do not
contest the propriety of initially joining their trials with
Franklin’s under Rule 8. Instead, they contend they were entitled
to severance under Rule 14 once Franklin made prejudicial
admissions through his counsel.

We review the denial of a motion to sever for abuse of
discretion. United States v. Gbemisola, 225 F.3d 753, 760–61
(D.C. Cir. 2000). Given the permissive wording of Rule 14, “we
accord great deference to a district court’s decision to deny
severance.” United States v. Washington, 12 F.3d 1128, 1133
 39

(D.C. Cir. 1994). Moreover, as the Supreme Court recognized
in Zafiro v. United States, 506 U.S. 534 (1993), “[t]here is a
preference in the federal system for joint trials of defendants who
are indicted together” because joint trials “promote efficiency
and serve the interests of justice by avoiding the scandal and
inequity of inconsistent verdicts.” Id. at 537 (internal quotation
marks omitted); see also United States v. Manner, 887 F.2d 317,
324 (D.C. Cir. 1989) (“In general, we strike a balance in favor of
joint trials.”). As we have stated, this preference is “especially
strong” when “the respective charges require presentation of
much the same evidence, testimony of the same witnesses, and
involve two defendants who are charged, inter alia, with
participating in the same illegal acts.” United States v. Ford, 870
F.2d 729, 731 (D.C. Cir. 1989) (internal quotation marks
omitted); see United States v. Richardson, 167 F.3d 621, 624
(D.C. Cir. 1999) (“Joint trials are favored in RICO cases.”).

In reviewing the district court’s decision denying severance,
we apply the standard set forth in Zafiro, which held that “when
defendants properly have been joined under Rule 8(b), a district
court should grant a severance under Rule 14 only if there is a
serious risk that a joint trial would compromise a specific trial
right of one of the defendants, or prevent the jury from making
a reliable judgment about guilt or innocence.” 506 U.S. at 539.
Zafiro gave several examples of instances in which a joint trial
might create such risks: when it would permit admission of
incriminating evidence that would have been inadmissible
against one of the defendants, when it would require exclusion
of exculpatory evidence that would have been admissible in a
single defendant’s trial, or when there is a marked disparity in
the culpability of the defendants. Id.

The appellants characterize their claim as an “amalgam” of
two recognized sources of prejudice: mutually antagonistic
defenses and admission of a codefendant’s out-of-court
 40

statement without an opportunity for cross-examination. They
acknowledge that neither situation is squarely presented here, but
nonetheless assert that their situation bears some resemblance to
each of these claims and that the resulting prejudice necessitated
severance. Mutually antagonistic defenses exist when the
defense one defendant asserts is irreconcilable with that asserted
by another defendant. United States v. Gilliam, 167 F.3d 628,
635 (D.C. Cir. 1999). In Zafiro, the Supreme Court refused to
adopt a bright-line rule mandating severance when mutually
antagonistic defenses are present, stating that “[m]utually
antagonistic defenses are not prejudicial per se.” 506 U.S. at
538. Hence establishing an abuse of discretion requires “more
than ‘the presence of some hostility’ among codefendants, and
‘more than the fact that co-defendants whose strategies were
generally antagonistic were tried together.’” Gilliam, 167 F.3d
at 635 (quoting United States v. (James) Brown, 16 F.3d 423,
433 (D.C. Cir. 1994)).

We question whether Franklin’s admissions through counsel
actually constitute a “defense” that was irreconcilable with the
defenses offered by the other defendants. Unlike a typical
situation in which one defendant attempts to shift blame to
another defendant, Franklin’s admissions through counsel did not
name any of the other defendants, identify specific counts, or
describe the particular conduct that occurred. But even assuming
arguendo that mutually antagonistic defenses were present, the
district court adequately addressed any resulting prejudice by
giving an appropriate limiting instruction. That instruction
closely tracked the instruction the Supreme Court found
sufficient to cure any prejudice arising from the mutually
antagonistic defenses present in Zafiro. 506 U.S. at 540–41.

The appellants also assert that Franklin’s admissions created
an issue analogous to that the Supreme Court addressed in
Bruton v. United States, 391 U.S. 123 (1968). Bruton concerned
 41

a joint trial in which a nontestifying defendant’s out-of-court
confession was admitted into evidence and both defendants were
subsequently convicted. The Court held that admitting one
defendant’s confession without giving the other defendant the
opportunity to cross-examine him violated the Confrontation
Clause of the Sixth Amendment. It reasoned that there was a
“substantial risk that the jury, despite instructions to the contrary,
looked to the incriminating extrajudicial statements in
determining petitioner’s guilt.” Id. at 126. Bruton and its
progeny, Richardson v. Marsh, 481 U.S. 200 (1987), and Gray
v. Maryland, 523 U.S. 185 (1998), all involved the admission of
incriminating out-of-court statements made by a nontestifying
codefendant.

The appellants have no Bruton claim, however, because
Franklin’s concessions through counsel do not implicate the
Confrontation Clause. The Confrontation Clause prohibits
“admission of testimonial statements of a witness who did not
appear at trial unless he was unavailable to testify, and the
defendant had had a prior opportunity for cross-examination.”
Davis v. Washington, 547 U.S. 813, 821 (2006) (quoting
Crawford v. Washington, 541 U.S. 36, 53–54 (2004)). The
opening statement and closing argument made by Franklin’s
counsel, however, neither were admitted into evidence nor were
they testimony. Indeed, although the appellants rely on Bruton,
they have not identified any incriminating out-of-court statement
made by Franklin that was admitted into evidence. In addition,
the admissions Franklin made through counsel were not facially
incriminating like the confession in Bruton, nor did they “refer[]
directly to the ‘existence’ of the nonconfessing defendant” as in
Gray, 523 U.S. at 192. Thus we conclude that the appellants’
Sixth Amendment rights were not compromised.

Finally, even if Franklin’s admissions through counsel
created some prejudice, the district court was not obligated to
 42

grant severance. “Rule 14 does not require severance even if
prejudice is shown; rather, it leaves the tailoring of the relief to
be granted, if any, to the district court’s sound discretion.”
Zafiro, 506 U.S. at 538–39. Here, the court considered and
responded to the objections from the other defense attorneys. It
directed Franklin’s counsel to limit the scope and content of the
admissions and required that he explain that the admissions did
not incriminate the other defendants. Moreover, the court gave
several limiting instructions to the jury concerning how it should
consider the admissions. These instructions helped mitigate any
potential prejudice arising from the admissions.

The appellants have not shown that Franklin’s admissions
through counsel caused sufficient prejudice to necessitate
severance. To the extent Franklin’s admissions through counsel
were an antagonistic defense, the court adequately responded by
giving the curative instruction approved in Zafiro. Likewise, the
appellants do not have a Bruton claim because no testimonial
statement by Franklin was ever admitted into evidence. Thus the
appellants have not shown that there was a “serious risk” that
trying them with Franklin would “compromise a specific trial
right” or “prevent the jury from making a reliable judgment
about guilt or innocence.” Zafiro, 506 U.S. at 539. The district
court was in the best position to evaluate whether allowing
Franklin’s admissions through counsel would prejudice the other
defendants’ right to a fair trial. Having examined the record, we
hold that the district court did not abuse its discretion when it
denied the appellants’ motions for severance.

B

Wilson contends that the district court should have granted
his motion to sever because there was a great disparity between
the evidence against him and the evidence against Franklin. As
he correctly notes, we have previously stated that “[w]hen the
 43

evidence against one or more defendants is ‘far more damaging’
than the evidence against another defendant, ‘the prejudicial
spillover may have deprived a defendant of a fair trial.’” United
States v. Manner, 887 F.2d 317, 324 (D.C. Cir. 1989) (quoting
United States v. Tarantino, 846 F.2d 1384, 1398 (D.C. Cir.
1988)). Nevertheless, Wilson has not identified any disparity
that could have deprived him of a fair trial. On the contrary, as
we have detailed in Part I.A, there was overwhelming evidence
to support his conviction. See also infra Part XII. Thus the
district court did not abuse its discretion in denying his motion
for severance.

IV

Appellants next challenge the jury instructions on the RICO
counts. Section 1962(c) of Title 18 makes it “unlawful” to
“conduct or participate, directly or indirectly, in the conduct of
[a qualifying] enterprise’s affairs through a pattern of
racketeering activity.” Section 1962(d) prohibits conspiracy to
violate other RICO provisions, including § 1962(c). Appellants
were all convicted under RICO’s conspiracy provision.
Judgment of Franklin at 2; Judgment of Blackson at 2; Judgment
of Robinson at 2; Judgment of Simmons at 2; Judgment of
Wilson at 2. Appellants challenge the court’s RICO jury
instructions on three grounds. They contend that the district
court’s instructions failed to: (1) make clear that, to be convicted
under § 1962(d), a defendant must participate in the operation or
management of the enterprise; (2) adequately define an
“enterprise” as requiring a structure apart from a pattern of
racketeering activity; and (3) require “continuity” as a necessary
element of a pattern of racketeering activity. We reject all three
challenges.
 44

A

First, appellants contend that the district court failed to
instruct the jury that, to be convicted under § 1962(d), a
defendant must participate in the operation or management of the
enterprise. We review de novo the failure of the district court to
provide a requested jury instruction. United States v. Hurt, 527
F.3d 1347, 1351 (D.C. Cir. 2008). The pertinent question is
“whether, taken as a whole, [the instructions] accurately state the
governing law and provide the jury with sufficient understanding
of the issues and applicable standards.” United States v.
Washington, 106 F.3d 983, 1002 (D.C. Cir. 1997). Because the
jury instructions given by the district court accurately reflect the
current state of the law on the degree to which operation or
management of the criminal enterprise is required for conviction
of RICO conspiracy, we hold that the district court’s jury
instructions did not err in this respect.

According to the district court’s jury instructions, in order
to find guilt for RICO conspiracy under § 1962(d), the jury was
required to find beyond a reasonable doubt: (1) that an enterprise
— in this case, an illegal association in fact — existed; (2) that
the enterprise engaged in or affected interstate commerce; (3)
that each defendant knowingly and intentionally agreed with
another person to conduct or participate in the affairs of the
enterprise; and (4) that each defendant knowingly and willfully
agreed that he or some other member of the conspiracy would
commit at least two racketeering acts. May 17, 2006 PM Trial
Tr. at 28–29. The district court subsequently elaborated on the
third element, stating “the government does not have to prove
that each defendant maintained a formal position in the
enterprise or that each defendant was part of upper management.
It is enough if the government proves beyond a reasonable doubt
that the defendant, even if he is a lower rung participant agreed
 45

to participate in an enterprise that one or more of the defendants
would manage or operate.” Id. at 32.

Appellants contend that the district court erred to the extent
that it did not instruct the jury that it must find that each
defendant managed or operated the enterprise. They rely
primarily on Reves v. Ernst & Young, in which the Supreme
Court held that RICO liability under 18 U.S.C. § 1962(c),
RICO’s prohibition on participation in a racketeering enterprise,
does not extend “beyond those who participate in the operation
or management of an enterprise through a pattern of racketeering
activity.” 507 U.S. 170, 184 (1993). Appellants claim that if a
similar requirement is not extended to § 1962(d), prosecutors
will be able to “get around Reves’ limitation on RICO liability
through the simple expedient of charging the defendants under
§ 1962(d), RICO’s conspiracy provision, rather than under
§ 1962(c),” thereby “eviscerating” Reves. Appellants’ Br. at 75,
77.

This court has previously declined to decide whether Reves’
operation or management test is applicable to prosecutions under
§ 1962(d). See United States v. Thomas, 114 F.3d 228, 243
(D.C. Cir. 1997). Since Thomas, however, the Supreme Court
has decided Salinas v. United States, 522 U.S. 52 (1997). In that
case, the Court held that a § 1962(d) “conspiracy may exist even
if a conspirator does not agree to commit or facilitate each and
every part of the substantive offense.” Id. at 63. Moreover, a
“conspirator must intend to further an endeavor which, if
completed, would satisfy all of the elements of a substantive
criminal offense, but it suffices that he adopt the goal of
furthering or facilitating the criminal endeavor.” Id. at 65.
Salinas thus indicates that an individual defendant need not
himself participate in the operation or management of an
enterprise in order to be liable for conspiracy under § 1962(d).
 46

Following Salinas, every court of appeals to consider the
question has held that the Reves operation or management test
does not apply to conspiracy under § 1962(d). See United States
v. Fernandez, 388 F.3d 1199, 1230 (9th Cir. 2004); Smith v.
Berg, 247 F.3d 532, 537–38 (3d Cir. 2001); United States v.
Zichettello, 208 F.3d 72, 99 (2d Cir. 2000); Brouwer v.
Raffensperger, Hughes & Co., 199 F.3d 961, 967 (7th Cir. 2000);
United States v. Posada-Rios, 158 F.3d 832, 857 (5th Cir. 1998).

Moreover, contrary to appellants’ contention, the Supreme
Court’s recent decision in Boyle v. United States, 129 S. Ct. 2237
(2009), does not alter this understanding of § 1962(d). Boyle
addressed § 1962(c), not § 1962(d). To be sure, appellants are
correct that the Court in Boyle stated that Reves “turned on our
interpretation of the participation requirement of § 1962,” rather
than of § 1962(c) specifically. Boyle, 129 S. Ct. at 2243 n.3.
However, § 1962(c) is the only subsection of § 1962 to explicitly
include the sort of participation requirement discussed in Reves.
Therefore, Boyle’s footnote necessarily references the provision
discussed in Reves itself — § 1962(c).

The district court was thus correct to refuse appellants’
proposed instruction requiring the jury to find that each
defendant participated in the enterprise’s management or
operation.

We also reject Simmons’ argument that he is differently
situated from the other appellants. Simmons contends that
because he had no role in the management or operation of the
enterprise, he could not be convicted under § 1962(c), and so
should not be liable under § 1962(d). He argues that it was
impossible for him to conspire to violate a law that does not
apply to him. This contention — that a defendant must be
eligible for conviction under § 1962(c) to be convicted under
§ 1962(d) — is also foreclosed by Salinas. There, the Supreme
 47

Court squarely held that an individual “may be liable for
conspiracy even though he was incapable of committing the
substantive offense.” 522 U.S. at 64. Therefore, for Simmons
as for all of the appellants, the district court’s instructions were
not in error.

B

In their opening brief, appellants also challenge the jury
instructions on the ground that an association-in-fact enterprise
must have some structure beyond the attendant pattern of
racketeering activity.

Appellants’ contention is without merit. In Boyle, the
Supreme Court dismissed the notion that “the existence of an
enterprise may never be inferred from the evidence showing that
persons associated with the enterprise engaged in a pattern of
racketeering” as “incorrect.” 129 S. Ct. at 2245. Rather, it held
that “the evidence used to prove the pattern of racketeering
activity and the evidence establishing an enterprise may in
particular cases coalesce.” Id. (internal quotation marks
omitted).

C

Finally, appellants contend that the RICO jury instructions
were flawed because the district court failed to instruct the jury
that a pattern of racketeering must include an element of
continuity. They acknowledge, however, that they did not raise
this objection in the district court. Appellants’ Br. at 70. As
such, we review the absence of such an instruction only for plain
error. See FED. R. CRIM. P. 52(b); United States v. Wheeler, 525
F.3d 1254, 1256 (D.C. Cir. 2008).
 48

Assuming arguendo that the district court erred in this
unobjected-to instruction, an appellant seeking to show plain
error must still demonstrate that the district court’s error affected
substantial rights and seriously affected “the fairness, integrity
or public reputation of judicial proceedings.” United States v.
Olano, 507 U.S. 725, 736 (1993) (internal quotation marks
omitted). Appellants cannot meet that burden.

As this court has held, continuity as a required element of a
pattern of racketeering activity “may be proved by establishing
either a closed period of repeated conduct or a threat of future
criminal activity.” W. Assocs. Ltd. P’ship ex rel. Ave. Assocs.
Ltd. P’ship v. Mkt. Square Assocs., 235 F.3d 629, 633 (D.C. Cir.
2001) (internal quotation marks omitted). A closed period of
repeated conduct, in turn, may be proven through “a series of
related predicates extending over a substantial period of time.”
H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 242 (1989). A threat
of future criminal activity may be proved by, for example, “past
conduct that by its nature projects into the future with a threat of
repetition.” Id. at 241.

Here, the evidence showed both a closed period of repeated
conduct and a threat of future criminal activity. Appellants were
convicted of substantive drug distribution in a course of dealing
spanning the time period from November 21, 2002 (Count 6,
Indict. at 39; Judgment of Blackson at 2) to March 16, 2004
(Counts 77–78, Indict. at 47; Judgment of Franklin at 2).
Therefore, the predicates for appellants’ RICO conspiracy
spanned a substantial period of time. Furthermore, the evidence
presented at trial pointed to the likelihood of the criminal activity
continuing. Indeed, Franklin was recorded stating, “Nothing will
stop this money train!” Oct. 1, 2003 Wiretap Tr. at 1.

In light of the evidence at trial, appellants cannot show that
omission of a continuity instruction was plain error.
 49

V

Simmons asserts that reversible error occurred when the
prosecutor “vouched” for the credibility of an important witness,
his counsel promptly objected, and the court did nothing to
remedy the improper vouching. The witness, Roberta Moore,
testified for the prosecution pursuant to a plea agreement. Apr.
19, 2006 PM Trial Tr. at 9–12. On cross-examination, Simmons’
counsel used the plea agreement to attack her credibility, stating,
“Now in effect, based on this 10, 11 page plea agreement the
government is pulling the strings today, right?” Apr. 20, 2006
AM Trial Tr. at 40. The prosecution objected, and the court
sustained its objection. After establishing that Moore would be
sentenced to at least five years’ imprisonment unless the
government filed a motion supporting a lower sentence,
Simmons’ counsel continued, “So you have to keep them happy
so that they’ll file those motions, right?” Id. at 55. Again the
prosecution objected. Again the court sustained the objection.
Addressing Moore’s obligation to testify truthfully, Simmons’
counsel asked, “Basically in your situation you tell the truth
when it helps you, right?” Id. at 62. He later asked, “And you
know the reason you haven’t been sentenced yet is because since
the government has so much control over you they want to sit
here and [] see how you perform, right?” Id. at 72. On redirect,
the prosecutor walked Moore through the details of the plea
agreement again, highlighting the fact that the government’s
recommendation would not bind the judge at sentencing.
Referring to the judge, the prosecutor then asked, “What do you
think she’d do if you lied?” Id. at 88. Moore responded, “I’d be
locked up.” Id. Simmons’ counsel interjected, “Objection, Your
Honor,” but the court overruled his objection, stating, “I think it
was an appropriate redirect.” Id.
 50

On appeal, Simmons argues that this exchange constituted
improper prosecutorial vouching because it implied that the
prosecution and the court could monitor and verify whether
Moore testified truthfully. A prosecutor may not vouch for the
credibility of a witness. “[I]t is for the jury, and not the
prosecutor, to say which witnesses are telling the truth.” United
States v. (Xavier) Brown, 508 F.3d 1066, 1075 (D.C. Cir. 2007)
(quoting Harris v. United States, 402 F.2d 656, 658 (D.C. Cir.
1968)) (internal brackets omitted). When a prosecutor vouches
for a witness’ credibility, it may “convey the impression that
evidence not presented to the jury, but known to the prosecutor,
supports the charges against the defendant,” thereby jeopardizing
“the defendant’s right to be tried solely on the basis of the
evidence presented to the jury.” Id. (quoting United States v.
Young, 470 U.S. 1, 18 (1985)). Likewise, prosecutorial vouching
“carries with it the imprimatur of the Government and may
induce the jury to trust the Government’s judgment rather than
its own view of the evidence.” Id. (quoting Young, 470 U.S. at
18–19) (emphasis omitted).

Our standard of review depends on whether the vouching
objection was properly preserved. Federal Rule of Evidence 103
states that to preserve an issue concerning the admission of
evidence, a party must make “a timely objection or motion to
strike . . . stating the specific ground of objection, if the specific
ground was not apparent from the context.” FED. R. EVID.
103(a)(1). For nonevidentiary issues, Federal Rule of Criminal
Procedure 51 requires that the objecting party inform the court
of its objection “and the grounds for that objection.” FED. R.
CRIM. P. 51(b). In this case, Simmons’ counsel objected in a
timely manner, but did not state his ground for objecting, much
less do so with specificity. When “the defendant fails to object
or to state the specific ground for an overruled objection, we may
reverse only for plain error unless the defendant can demonstrate
on appeal that the ground for the objection was obvious from the
 51

context in which it was made.” United States v. Boyd, 54 F.3d
868, 872 (D.C. Cir. 1995). In Boyd, the prosecutor asked the
defendant why two police eyewitnesses were “making this up.”
The defendant’s counsel stated, “I object,” and the judge replied,
“Overruled.” Id. at 870. The court reviewed this exchange only
for plain error because “nothing in the context of defense
counsel’s unexplained objection made obvious the ground
therefor.” Id. at 872.

In this case, as in Boyd, the defendant’s basis for his
unexplained objection is not clear from the context. Moreover,
nothing about the court’s response indicates that it understood
that Simmons’ objection concerned vouching. We thus conclude
that the plain error standard governs. To demonstrate plain error,
an appellant must show “(1) a legal error that was (2) ‘plain’ (a
term that is synonymous with ‘clear’ or ‘obvious’), and that (3)
affected [his] substantial rights.” (Xavier) Brown, 508 F.3d at
1071 (quoting United States v. Sullivan, 451 F.3d 884, 892 (D.C.
Cir. 2006)); see also United States v. Olano, 507 U.S. 725,
732–34 (1993). Even when a plain error has been shown, we
will reverse only “if (4) the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” (Xavier)
Brown, 508 F.3d at 1071 (quoting Sullivan, 451 F.3d at 892–93).
The appellant bears the burden of proving each element under
this standard. Id.

In reviewing for plain error, the threshold question is
whether there was a legal error. Therefore we must first
determine whether the prosecutor’s question constituted
improper vouching. Given the context, we conclude this
exchange was not plainly improper vouching, if it was vouching
at all. Simmons would have us interpret the prosecutor’s
question to imply that the court could monitor and verify the
truthfulness of Moore’s testimony: “What do you think she’d do
if you lied [and she would know if you did]?” But the question
 52

could also be interpreted as “What do you think she’d do if you
lied [assuming she knew you were lying]?” These possible
interpretations show that the question does not necessarily imply
that the judge would have known if Moore was lying. In
addition, the prosecutor’s question made sense in the context of
the preceding cross-examination. On cross, Simmons’ counsel
questioned whether Moore was telling the truth, thereby putting
her state of mind in question. The prosecutor’s question on
redirect also focused on Moore’s state of mind, asking “What do
you think she’d do if you lied?” Apr. 20, 2006 AM Trial Tr. at
88 (emphasis added). Thus the question focused on Moore’s
understanding of the plea agreement and her state of mind in
testifying. Moreover, unlike the vouching in the cases upon
which Simmons relies, it did not express the prosecutor’s
personal opinion about Moore’s credibility. We conclude that
this was hardly vouching, but was in fact a proper rejoinder to
the cross-examination concerning the motive of the witness.
This was not plain error, if it was error at all.

Assuming arguendo that Simmons had preserved this issue
and it was error, we are convinced that this alleged vouching was
harmless. Even discounting Roberta Moore’s testimony, the
evidence against Simmons was extensive. Moreover, the alleged
vouching was relatively innocuous, particularly given the
preceding cross-examination. In short, Simmons cannot prevail
on this issue.

VI

At trial, cooperating witness Michael Abney testified that
William Simmons was John Franklin’s “loyalest foot soldier,”
describing him as Franklin’s “rescue puppet.” May 2, 2006 AM
Trial Tr. at 42–43. When asked to clarify what he meant by
“rescue puppet,” he explained that Franklin had rescued
Simmons from a “life of destruction,” which he characterized as
 53

“[d]rug addiction, no place to live, that type of thing.” Id. at
44–45. The prosecutor then said, “Now let’s talk about Mike’s
lifestyle of destruction. What did you know about him?” Abney
responded, “I known that he smoked crack, snort dope. He had
a history of known to be a thief, robbing, killing and stuff.” Id.
at 45. Simmons’ counsel objected and sought to have Abney’s
answer stricken, but the court denied his motion. Although it
refused to strike the statement, the court suggested, “Why don’t
we speak about Mr. Simmons’ drug use and limit [] the
testimony to that.” Id. at 45–46.

Simmons contends that the court’s failure to strike Abney’s
answer constitutes reversible error because it was inadmissible
character evidence and its prejudicial effect substantially
outweighed its probative value. Federal Rule of Evidence 404(b)
states: “Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show
action in conformity therewith. It may, however, be admissible
for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident . . . .” FED. R. EVID. 404(b). In criminal cases, Rule
404(b) requires that the prosecution provide pretrial notice when
it intends to introduce character evidence if the defendant has
requested such notice. Id. We review the district court’s Rule
404(b) decisions for abuse of discretion. United States v. Long,
328 F.3d 655, 660 (D.C. Cir. 2003). In doing so, we give “much
deference” to the district court’s decision. Id. (quoting United
States v. Cassell, 292 F.3d 788, 792 (D.C. Cir. 2002)). We will
sustain that decision “so long as the evidence is relevant under
Rule 401 and is offered as proof of a matter other than the
defendant’s character or propensity to commit a crime.” Id.

As a procedural matter, Simmons argues that the
government failed to provide notice that it planned to introduce
this evidence. Although Simmons asserts that he requested
 54

notice, he offers no evidence to that effect. Moreover, it is not
clear whether the government expected Abney to make this
statement, or whether the statement came as a surprise, meaning
that it had no ability to give notice. Therefore we lack sufficient
information to evaluate Simmons’ claim that he never received
the notice he claims to have sought.

Turning to the statement itself, the government argues that
it was admissible because it went to Simmons’ motive for
serving as Franklin’s “runner.” It reasons that Simmons decided
to serve as Franklin’s runner because Franklin saved him from
a “life of destruction.” The government notes that Simmons’
counsel had already portrayed his client as a drug addict who
would steal to get drug money and therefore could not have been
a trusted member of the alleged drug conspiracy. Even accepting
this argument, however, it is difficult to understand how Abney’s
statement about Simmons’ “history . . . of robbing [and] killing”
demonstrates this motive. Moreover, it is hard to see how this
statement could have been admissible under Rule 403, which
states that “relevant[] evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice.” FED. R. EVID. 403. Here, admitting evidence
concerning Simmons’ alleged history of killing risked substantial
unfair prejudice while adding very little probative information
concerning his destructive lifestyle, especially considering that
Simmons’ counsel had already disclosed information about
Simmons’ drug addiction and propensity to steal. Thus the court
arguably should have stricken this statement from the record and
given a limiting instruction to the jury.

Nonetheless, we conclude that considering the trial as a
whole, the district court’s failure to strike this statement or give
a limiting instruction was harmless error. The question is
whether this evidence affected Simmons’ substantial rights, for
“[a]ny error, defect, irregularity, or variance that does not affect
 55

substantial rights must be disregarded.” FED. R. CRIM. P. 52(a).
In evaluating whether this was harmless error, we ask “what
effect the error had or reasonably may be taken to have had upon
the jury’s decision.” Kotteakos v. United States, 328 U.S. 750,
764 (1946). Specifically, we must determine whether “the error
had substantial and injurious effect or influence in determining
the jury’s verdict.” Id. at 776. An error is harmless if the guilty
verdict was “surely unattributable to the error.” United States v.
Baugham, 449 F.3d 167, 176 (D.C. Cir. 2006) (quoting Sullivan
v. Louisiana, 508 U.S. 275, 279 (1993)).

We conclude that Abney’s statement about Simmons’
“history of . . . robbing [and] killing” did not have a substantial
effect on the jury’s verdict. First, even if the jury accepted
Abney’s statement as true, the information it conveyed was not
particularly germane to the conspiracy and drug distribution
counts on which Simmons was ultimately convicted. The
statement was most probative as evidence that Simmons had a
propensity for violence, but the jury found Simmons not guilty
of murder and all other violent crimes with which he was
charged. Verdict at 37–39. This supports our conclusion that the
evidence Simmons protests, which concerned robbing and
killing, did not influence the jury’s verdict. Second, the other
evidence against Simmons was so extensive we see no realistic
possibility that this single uncorroborated remark, made in
passing by a particularly garrulous witness, had any meaningful
effect on the jury’s verdict. Third, even though the court refused
to strike the statement, it did prospectively limit Abney’s
testimony to Simmons’ history of drug abuse, thereby avoiding
additional prejudice and suggesting that Abney’s statement was
not especially relevant. Evaluating Abney’s statement in the
context of the whole trial, then, we are convinced that the district
court’s failure to strike this statement was harmless error and
does not merit reversal.
 56

VII

At trial, William Robinson sought to introduce two defense
witnesses whose personal experiences would enable them to
interpret various taped phone calls the government had
introduced into evidence. The first witness was a former drug
dealer; the second was a resident of the 18th and M
neighborhood. The district court denied the motion, ruling that
neither witness had the particularized knowledge of the events in
question required of lay witnesses.

Antawan Robinson, the court found, lacked the
particularized knowledge to serve as a lay fact witness “because
he doesn’t live in the area, he hasn’t lived in the area, he has
never talked to the defendants . . . by the telephone.” May 16,
2006 PM Trial Tr. at 47. The district court likewise ruled that
the second witness, who had even less firsthand knowledge of
the conspiracy, was an inappropriate lay fact witness.

On appeal, Robinson argues only that the district court erred
by excluding Antawan Robinson as a lay witness. He initially
asserted error with respect to the second witness, but then offered
no argument in support of that witness’ admission, thereby
abandoning his argument with respect the second witness. See
Terry v. Reno, 101 F.3d 1412, 1415 (D.C. Cir. 1996); FED. R.
APP. P. 28(a)(9)(A). We review the district court’s evidentiary
ruling for abuse of discretion. United States v. Whitmore, 359
F.3d 609, 616 (D.C. Cir. 2004).

Federal Rule of Evidence 702 governs expert testimony.
Expert witnesses may testify to matters of “scientific, technical,
or other specialized knowledge.” FED. R. EVID. 702. Lay
testimony, by contrast, is governed by Rule 701. Unlike experts,
lay witnesses must base their testimony on their experiential
“perception” and not on “scientific, technical, or other
 57

specialized knowledge within the scope of Rule 702.” FED. R.
EVID. 701(a), (c). This requirement ensures that lay testimony
is “the product of reasoning processes familiar to the average
person in everyday life.” United States v. Garcia, 413 F.3d 201,
215 (2d Cir. 2005). Moreover, it avoids the “risk that the
reliability requirements set forth in Rule 702 will be evaded
through the simple expedient of proffering an expert in lay
witness clothing.” FED. R. EVID. 701 advisory committee’s
notes, 2000 amends.

A witness with firsthand experience of a particular drug
operation may testify under Rule 701. See United States v.
Williams, 212 F.3d 1305, 1309 (D.C. Cir. 2000). In the absence
of firsthand experience, a witness with the requisite expertise
may testify as an expert about the many aspects of drug
operations falling outside the scope of lay knowledge. See
United States v. Boney, 977 F.2d 624, 628 (D.C. Cir. 1992)
(“operations of narcotics dealers” are “a suitable topic for expert
testimony because they are not within the common knowledge of
the average juror”). At issue here is whether a lay witness may
testify about drug operations outside the scope of lay knowledge
based on past personal experience with other, similar drug
operations.

At least three Circuits have found that such witnesses may
testify only when qualified as experts. See United States v.
Oriedo, 498 F.3d 593, 603–04 (7th Cir. 2007); Garcia, 413 F.3d
at 215–17; United States v. Figueroa-Lopez, 125 F.3d 1241,
1246 (9th Cir. 1997). But see United States v. Page, 521 F.3d
101, 105 (1st Cir. 2008). We agree with those courts holding
that an individual without personalized knowledge of a specific
drug conspiracy may not testify about drug topics that are
beyond the understanding of an average juror under Rule 701.
Such a witness may be permitted to testify only as an expert
under Rule 702.
 58

For a witness to testify reliably about a matter outside the
scope of typical lay knowledge, the witness’ knowledge must
come from one of two sources: the firsthand experience of a lay
witness, FED. R. EVID. 701, or the sort of “knowledge, skill,
experience, training, or education” that would qualify the witness
as an expert, FED. R. EVID. 702. Thus, if a witness lacks
firsthand knowledge of a matter outside the scope of lay
expertise, he may testify only if qualified as an expert. To hold
otherwise would conflate the “particularized” knowledge
necessary to testify as a lay witness with the “specialized”
personal knowledge gained from previous experience that allows
a witness to testify as an expert. An individual testifying about
the operations of a drug conspiracy because of knowledge of that
drug conspiracy has “particularized” knowledge and should be
admitted as a lay witness; an individual testifying about the
operations of a drug conspiracy based on previous experiences
with other drug conspiracies has “specialized” knowledge and —
provided his testimony meets the rule’s enumerated requirements
— should be admitted as an expert.

Antawan Robinson’s proposed testimony falls squarely into
the category of expert testimony. Robinson proposed to testify
about terminology used in drug operations, a matter outside the
scope of a typical lay person’s knowledge and experience.
Robinson had no firsthand experience with the M Street Crew;
his testimony was to have been based entirely on his own
experience as a drug dealer elsewhere. Such evidence is
admissible only under Rule 702. Had the defense wished to
introduce Robinson’s testimony, it could have done so only by
attempting to qualify him as an expert based on his experience
of other drug operations.

We therefore affirm the district court’s ruling not to allow
Antawan Robinson to testify as a lay witness for the defense.
 59

VIII

On the morning of March 16, 2004, an FBI team entered the
home of Nicole Harris to arrest her fiancé, George Wilson. The
agents had an arrest warrant for Wilson, but had not yet obtained
a search warrant for the residence. After arresting Wilson, they
obtained written consent from Harris to search the premises.
During their search, the agents discovered a 7.62mm assault rifle
and approximately $80,000 in cash. Wilson filed a pretrial
motion to suppress this evidence. After holding an evidentiary
hearing, the district court ruled that the warrantless search did
not violate the Fourth Amendment because it was conducted
pursuant to valid consent. In the alternative, the court stated that
even absent valid consent, the evidence would still be admissible
under the inevitable discovery doctrine. Wilson appeals this
ruling, arguing that there was no valid consent for the search and
no probable cause upon which a warrant could have issued. In
addition, he contends that the Supreme Court’s decision in
Georgia v. Randolph, 547 U.S. 103 (2006), entitles him to an
evidentiary hearing concerning whether the agents intentionally
deprived him of the opportunity to object to the search.

Valid consent constitutes an exception to the general Fourth
Amendment requirement of a warrant supported by probable
cause. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).
To be valid, consent must be voluntarily given. Whether consent
is voluntary depends on “the totality of all the surrounding
circumstances.” Id. at 226. In applying the “totality of the
circumstances” test, a court may consider various factors,
including the consenting party’s “age, poor education or low
intelligence, lack of advice concerning his constitutional rights,
the length of any detention before consent was given, the
repeated and prolonged nature of the questioning, and the use of
physical punishment.” United States v. Hall, 969 F.2d 1102,
1107 (D.C. Cir. 1992) (quoting United States v. Lloyd, 868 F.2d
 60

447, 451 (D.C. Cir. 1989)). Since this inquiry is factually
intensive, we will reverse a district court’s determination that
consent was voluntary only for clear error. United States v.
Lewis, 921 F.2d 1294, 1301 (D.C. Cir. 1990). In addition, we
accord extra deference to the district court’s determinations
concerning witness credibility. See Bose Corp. v. Consumers
Union of U.S., Inc., 466 U.S. 485, 500 (1984).

At the evidentiary hearing, FBI team leader Kevin Ashby
testified concerning the circumstances under which Harris gave
consent. He testified that after arresting Wilson, he decided to
seek her consent to search rather than waiting for a warrant. Jan.
5, 2006 Evid. Hg. at 44–45. Ashby spoke to Harris, who was not
handcuffed, while she was sitting on her couch. Id. at 45. He
read the consent form to Harris and explained that she could
refuse to give consent, but also informed her that they were
applying for a search warrant and would remain in her home
until the warrant had been obtained. Id. at 45, 71. Harris
initially refused to give consent, but after thinking about it for a
few minutes, she signed the form. Id. at 45, 47.

Harris offered a somewhat different account of events.
When the search took place, she was 33 years old and had gone
to school through the twelfth grade. She testified that the FBI
team burst into the upstairs bedroom where she and Wilson had
been sleeping, ordered them onto the floor, and handcuffed them
both. Harris, who was only wearing a “nighty,” asked the
officers to put more clothes on her. Id. at 111. Once she was
clothed, the officers took her downstairs and sat her on the
couch. Id. at 111–12. When she asked whether they had a
search warrant, a male officer (presumably Ashby) told her that
they did not yet have one, but that it was “sitting in front of the
Judge.” Id. at 114. The officer also told Harris that they would
not leave her house until they had gotten a search warrant. Id. at
118. When she asked if she could make a phone call, the agents
 61

told her no. Id. at 114. Harris testified that she remained
handcuffed until just before she signed the consent form. Id. at
123. She stated that she did not sign the consent form
voluntarily. When asked why she did sign it, she said, “I signed
the form because I felt that I didn’t have no other choice and they
wouldn’t allow me to make a phone call and I was scared.” Id.
at 120. On cross-examination, the prosecution used a picture that
showed Harris wearing a shirt with her arms through the sleeves
to impeach her repeated testimony that she was handcuffed while
discussing the consent form and deciding whether to sign it. Id.
at 136–37. In response, she admitted that she might have been
mistaken about the handcuffs. Id. at 137. In addition, Harris
admitted that she did not want the evidence seized from her
home to be used in her fiancé’s trial. Id. at 139–40.

The district court found that Harris was “only partly
credible,” finding that “[h]er testimony to the Court’s
observation was memorized and not really being drawn from her
recollection of her prior experience.” Jan. 9, 2006 Evid. Hg. at
119. The court surmised that the agents probably removed
Harris’ handcuffs while she was still upstairs, allowing her to get
dressed before she was taken downstairs. Id. at 121. It found
that although the sudden intrusion “undoubtedly startled and
scared Ms. Harris at first . . . nothing in her evidence supports
her statements that she continued to feel scared or pressured.”
Id. Hence the district court concluded that Harris’ “consent was
voluntary under the totality of the circumstances,” specifically
noting that she was in her “early thirties,” that she was “an
educated person,” that she talked to Ashby for two to five
minutes, that she admitted having been told that she did not have
to agree to the search, and that she was not handcuffed or
restrained from leaving the residence. Id. at 123.

On this record, we cannot say that the district court’s
determination that Harris gave voluntary consent was clearly
 62

erroneous. Considering the totality of the circumstances, most
factors point toward voluntariness. Harris was 33 years old and
she had completed the twelfth grade. Although the raid itself
must have been startling, the agents did not seek her consent to
search until she was out of the handcuffs, had dressed, and was
seated on the couch. Ashby read the consent form to her and
made sure she understood that she could choose whether to sign
it or not. Morever, she apparently weighed that decision for
several minutes before signing. There was no evidence of any
physical coercion, verbal threats, or other conduct that would
have impinged on Harris’ ability to make a voluntary decision.
Wilson points to the agent’s statement that the FBI team would
not leave until they obtained a search warrant, arguing that it left
Harris without a choice. Having found and arrested Wilson on
the premises, however, it was not improper for the FBI to secure
the premises while a search warrant was obtained. See Segura
v. United States, 468 U.S. 796, 810 (1984). Consequently, we
affirm the district court’s decision denying Wilson’s motion to
suppress. Since there was valid consent, Wilson’s contention
that the FBI lacked sufficient probable cause to support a search
warrant is irrelevant. Likewise, we need not address the court’s
alternate holding that the evidence would inevitably have been
discovered.

We turn briefly to Wilson’s argument concerning Georgia
v. Randolph, which was decided after the search of Harris’
residence. At trial, Wilson renewed his motion to suppress based
on the recent decision in Randolph, but the court again denied it.
In Randolph, the Supreme Court held that even given valid
consent from one occupant, the express objection of a physically
present co-occupant renders the search unreasonable with respect
to that co-occupant. 547 U.S. at 106. Randolph also suggested
that “evidence that the police have removed the potentially
objecting tenant . . . for the sake of avoiding a possible
objection” might invalidate a subsequent search with respect to
 63

that tenant. Id. at 121–22. Seizing on this dicta, Wilson argues
that we should remand for an evidentiary hearing to determine
whether the FBI agents who arrested him intentionally deprived
him of the opportunity to object to the search. We disagree.
Nothing in the evidence supports the proposition that the agents
arrested and removed him to mute his possible objections to the
search. Moreover, as the district court noted, it strains credulity
to think that the FBI somehow anticipated the Randolph decision
and therefore whisked Wilson away to prevent him from
objecting. Apr. 13, 2006 AM Trial Tr. at 76. For these reasons,
we affirm the district court’s decision denying Wilson’s renewed
motion to suppress.

IX

John Franklin was convicted of being the principal
administrator, organizer, or leader of a Continuing Criminal
Enterprise (“CCE”) in violation of 21 U.S.C. § 848 (Count 3).
Pursuant to § 848(b), he was sentenced to life imprisonment.
Franklin challenges his conviction on the ground that there was
insufficient evidence to support the finding that he “occupie[d] a
position of organizer, a supervisory position, or any other
position of management” with respect to “five or more other
persons,” necessary for conviction on this count. 21 U.S.C.
§ 848(c)(2)(A).

Upon reviewing the evidence in the light most favorable to
the government, as we must, we conclude that a reasonable jury
could have found the essential elements of the offense beyond a
reasonable doubt. See United States v. Washington, 12 F.3d
1128, 1135–36 (D.C. Cir. 1994) (quoting Jackson v. Virginia, 443
U.S. 307, 319 (1979)). There was sufficient evidence to show
that Franklin managed Elizabeth Lee, Monica Bell, William
Simmons, William Robinson, and various of his other
“lieutenants” and “foot soldiers.”
 64

• Elizabeth Lee. Drug “packagers” can be considered
“managees” under 21 U.S.C. § 848. United States v.
Williams-Davis, 90 F.3d 490, 509 (D.C. Cir. 1996). Elizabeth
Lee, who was Franklin’s common-law wife, testified regarding
the drug packaging activities she pursued on Franklin’s behalf.
See, e.g., Mar. 22, 2006 PM Trial Tr. at 7: “Well, I would get up,
like I said, when the kids went off to school, and I would get the
half an ounce bottles and the ounce bottles, put everything on the
dresser, measuring cups and everything, measure it out and put it
in the half an ounce bottles and the ounce bottles, wipe
everything down, and put them in a suitcase. So when [Franklin]
come in all he had to do was just grab it and go ahead back out.”
Other evidence showed Franklin “directed” Lee’s drug
packaging. United States v. Mitchell, 49 F.3d 769, 773 (D.C. Cir.
1995). For example, Lee testified that Franklin would sometimes
“call [her] from the street” to direct her packaging activities.
Mar. 22, 2006 PM Trial Tr. at 11; see also id. at 11, 12: “Q. And
what kind of questions would he be asking you? A. What I bottle
up, or [Franklin]’ll ask for a certain amount, have a certain
amount done for him so he could come in and pick it up. Q. Did
he ever ask you to count — tell him how much money he had
available and that kind of thing? A. Yes.”; “If he wanted a
specific amount done, sometimes he would call back and tell me
make sure you have such-and-such full ounces and half ounces.”

Thus, the jury could reasonably have found beyond a
reasonable doubt that Franklin managed the packaging activities
of Elizabeth Lee.

• Monica Bell. Similarly, the evidence showed that
Monica Bell, who served as a “tester” of Franklin’s PCP, was
under Franklin’s direction. Bell testified that, “[a]bout three
times a week,” Franklin would “call” her and then “come by.”
Apr. 18, 2006 PM Trial Tr. at 82. At that point, Franklin would
ask Bell “to test [a] dipper[] for him,” and Bell would “[t]est PCP
 65

laced dippers, cigarettes” “[f]or John.” Id. at 78, 77. In
exchange, Bell “might have got a dipper if [she] wanted one.” Id.
at 86. That Bell was directed by Franklin is unmistakable.
Indeed, Bell testified to her direction by Franklin: “Q. Okay.
Where Mr. Franklin says, hey, listen, go out front and get a
cigarette from somebody, anybody, who is he telling that to? A.
Me. Q. And what does he want you to do? A. Go get a cigarette
from somebody outside.” Id. at 97. Additionally, Lee, Franklin’s
drug packager, testified to Franklin’s direction of his testers: “Q.
What were you guys talking about? A. A tester. Q. What’s a
tester? A. He take some [PCP] out in the bottle and have people
to smoke it to test it.” Mar. 22, 2006 PM Trial Tr. at 40.
Moreover, the fact that Bell received compensation in the form
of free “dippers” and performed such services as often as three
times a week renders her similarly situated to the “regular
drivers” found to be managees in Mitchell, 49 F.3d at 773, or the
“runners, packagers, or transporters” found to be managees in
Williams-Davis, 90 F.3d at 509.

Given the evidence that she performed a service for Franklin,
at his bidding, for compensation, there was sufficient evidence
for the jury reasonably to find beyond a reasonable doubt that
Bell was managed by Franklin.

• William Simmons. Drug runners can be considered
managees for purposes of 21 U.S.C. § 848. See Williams-Davis,
90 F.3d at 509. There was sufficient evidence from a variety of
sources for a jury reasonably to find beyond a reasonable doubt
that William “Mike” Simmons served as a drug runner for
Franklin and was under Franklin’s direction.

Michael Abney testified that Simmons was “John Franklin
loyalest foot soldier.” May 2, 2006 AM Trial Tr. at 42. Abney
further testified that Simmons’ drug sales were completely
directed by Franklin: “Q. What if anything did, did Mike do for
 66

John? A. Whatever he told him. Sell bottles to people. If John
need, if John needed anything done, he’d do it. He was like his,
I say he was like his rescue puppet.” Id. at 43. Abney further
testified that when he bought PCP for distribution from Franklin,
Simmons retrieved and delivered the drugs to him. Finally,
Abney testified that his experience was not unusual: “Q. Did you
see Mike [Simmons] get water [i.e, PCP] for other people under
those circumstances? A. Yes. Q. Can you tell us about that? A.
He do it the same way he do me. People go to get it from John,
give John the money, Mike go get the water.” Id. at 52.

Monica Bell likewise testified that when she tested
Franklin’s PCP for him, Simmons often delivered the “dipper”
for her to test. Undercover officer Leftridge testified that on
three occasions, after she purchased PCP from Franklin, another
man — whom she later identified as Simmons — delivered the
drugs to her. Her testimony was supported by videotape of two
of those occasions. Finally, supporting evidence was presented
by other cooperating government witnesses, who described
Simmons as Franklin’s “[s]idekick,” or “running partner,” Apr.
19, 2006 PM Trial Tr. at 44 (Roberta Moore), and his “runner,”
“flunky,” “little man,” or “helper,” Apr. 27, 2006 AM Trial Tr.
at 88 (Omari Minnis). These witnesses also testified to firsthand
experience of Simmons “running” for Franklin.

• William Robinson. According to Michael Abney,
Robinson was one of Franklin’s “lieutenants.” Although Abney’s
definition of a “lieutenant” may not correspond to that previously
accepted by the court in United States v. Thomas, 114 F.3d 228,
259 (D.C. Cir. 1997), there was sufficient evidence for the jury
reasonably to find beyond a reasonable doubt that Franklin
managed Robinson. First, in several instances, the law-
enforcement task force recorded conversations in which Franklin
directed Robinson either to make a sale or to assist Franklin in a
sale. Second, undercover officer Leftridge testified similarly,
 67

describing how during one of her buys from Franklin, he had
Robinson deliver the PCP she had purchased. Leftridge’s
testimony is corroborated by a surveillance video on which
Robinson’s face is visible as he delivers the PCP. Third, on at
least one occasion, Franklin instructed Robinson to find someone
to “taste” his PCP to ensure its quality.

• Foot Soldiers. Michael Abney classified himself and
at least 16 other members of the M Street Crew as “foot soldiers.”
However, while “foot soldier” evokes the bottom rung of a
military-like hierarchy, Abney’s use of the term during his trial
testimony did not deal solely with position in the chain of
command. Instead, at various times he used the term “foot
soldier” to indicate that his sales activity was less lucrative than
that of “lieutenants,” that he lacked his own source of drugs, or
that his status among his peers was lower. As such, Abney’s
division of the members of the M Street Crew into “foot soldiers”
and “lieutenants” is not dispositive evidence that Franklin
managed either group.

Other evidence, however, shows that Franklin managed his
“foot soldiers.” For example, both Abney and another “foot
soldier,” Omari Minnis, described the M Street Crew’s rotational
system, whereby the “foot soldiers” would take turns selling
drugs to customers. Minnis testified that the street sellers “took
turns” in order to ensure there was “enough [business] to go
around.” Apr. 27, 2006 AM Trial Tr. at 79. Abney observed that
the rotation system would “[k]eep a lot of hostility down.” May
2, 2006 AM Trial Tr. at 98. Minnis also testified that the system
was widely followed. Although Abney testified he was the only
“foot soldier” not to follow the rotation system, he identified
“John [Franklin] and the lieutenants” as the ones who imposed it.
Id. at 97–98. Additionally, Tracy Ambers testified that she
originally bought PCP from someone named “Ron,” but Franklin
 68

directed Ron to give Ambers Franklin’s telephone number so that
she could deal exclusively with Franklin in the future.

From this evidence the jury could reasonably credit Abney’s
description of Franklin imposing a selling regime on his “foot
soldiers” and Ambers’ recollection of Franklin directing “Ron”
to give her Franklin’s number. Franklin acknowledges that an
individual exercises managerial responsibility by “maintaining
control over drugs and customers by setting resale prices or
determining to whom the drugs could be sold.” Appellants’ Br.
at 122 (citing Mitchell, 49 F.3d at 772). Establishing when and
by whom drugs can be sold is analogous. Thus, based on
Abney’s and Ambers’ testimony, the jury could reasonably have
found beyond a reasonable doubt that Franklin exercised
managerial control over his “foot soldiers” and therefore fell
within the purview of 21 U.S.C. § 848.

• Lieutenants George Wilson and Joseph Blackson.
Along with William Robinson, Michael Abney classified George
Wilson and Joseph Blackson as Franklin’s “lieutenants.”
“Lieutenants” are generally managees of the “general” of a crew
for the purpose of 21 U.S.C. § 848. See Williams-Davis, 90 F.3d
at 509. However, as noted, Abney’s understanding of the term
“lieutenant” renders his classification insufficient to establish that
Franklin managed Wilson and Blackson. Abney’s view of what
it meant to be a “lieutenant” fluctuated during his testimony. In
describing the roles of Wilson and Blackson, Abney portrayed a
“lieutenant” as a manager, but, in later testimony, he described a
“lieutenant” as a more successful drug dealer who was also, to
some degree, a supplier. Status as a successful drug supplier does
not render a person managed by Franklin. See Mitchell, 49 F.3d
at 772.

However, Abney’s classification of “lieutenants” does not
stand alone. Other aspects of his testimony indicate that Franklin
 69

was in a managerial position, at least with respect to Wilson. For
example, Abney described a scuffle between himself and Wilson
over whether to give a discount to a regular customer. Franklin
stepped in, siding with Abney, and directed Wilson to stop
bullying Abney — a directive Wilson apparently obeyed.
Additionally, a wiretapped conversation between Franklin and
Wilson revealed that Wilson considered himself to be managed
by Franklin. As such, he asked Franklin on one occasion whether
Franklin would like him to kill someone (an offer that Franklin
refused): “Sugg [i.e. Wilson]: Want me to put somebody head on
a slab. John: Huh? Sugg: Want me to show, want me to show
my loyalty? John: Naw everything alright.” Sept. 27, 2003
Wiretap Tr. at 1–2. Thus the jury could reasonably find beyond
a reasonable doubt that Franklin managed at least Wilson and,
perhaps — based upon Abney’s testimony — Blackson as well.
In any event, Wilson plus Lee, Bell, Simmons, Robinson, and the
“foot soldiers” brings the total number of people that a reasonable
jury could find were managed by Franklin well beyond five.
Franklin’s challenge to the sufficiency of the evidence on Count
3 thus fails.

X

Count 31 charged Blackson with distribution of PCP on
April 15, 2003. Near the end of the trial, on May 16, 2006,
Blackson filed a Renewed Motion for Severance and Motion for
Judgment of Acquittal asserting, in part, that the government had
dismissed Count 31 by presenting no evidence. The government
acknowledged that it had offered no evidence on Count 31.
Count 31 did not appear on the verdict form submitted to the jury,
although the record does not indicate that the district court
formally dismissed the count.

Nonetheless, the district court judgment states that the jury
found Blackson guilty on Count 31, and imposes a sentence of
 70

360 months’ imprisonment, based in part on that count. The
government acknowledges that this was in error, and we hold the
error is plain. See United States v. Olano, 507 U.S. 725, 732–37
(1993); United States v. Saro, 24 F.3d 283, 286–88 (D.C. Cir.
1994). Because the error may have affected Blackson’s sentence,
the error affects substantial rights, and permitting the error to go
uncorrected would seriously affect the integrity of judicial
proceedings. We therefore reverse Blackson’s conviction on
Count 31 and remand for resentencing.

XI

Simmons was convicted of conspiring to distribute one or
more kilograms of PCP, of conspiring to distribute ecstasy, of
RICO conspiracy, and of three counts of distribution of PCP. At
sentencing, the government argued that Simmons’ base offense
level under the Sentencing Guidelines should be 38 because he
actually knew or could reasonably foresee that the conspiracy
would involve more than 30 kilograms of PCP. Simmons argued
that 32 was the appropriate base level because he was only
convicted of a conspiracy involving one or more kilograms. The
district court agreed his base offense level was 32 and imposed
a two-level increase for the use of firearms within the scope of
the conspiracy, and a one-level increase based on the parties’
stipulation that the drug sales occurred within 1,000 feet of a
school. With this adjusted offense level of 35, combined with
Simmons’ Category II criminal history, the district court
calculated a Guidelines range of 188 to 235 months.

The district court stated that although it was unable to find
that Simmons could reasonably foresee the full 30 kilograms of
PCP distributed by the M Street Crew, it was “not comfortable
with 235 months either,” and it would impose a prison sentence
of 264 months, or 22 years. Aug. 24, 2006 Sent. Hg. at 46. To
explain that sentence, the district court noted the jury’s special
 71

finding that the amount of PCP involved in the conspiracy
exceeded 30 kilograms. Although that finding was associated
with the CCE charge against Franklin only, the district court
concluded it was “perfectly legitimate to use that [amount] in
sentencing for other defendants to the extent it applies because
the conduct underlying the narcotics conspiracy, the RICO
conspiracy and the CCE count are all the same.” Id. at 48.

Regarding the extent of Simmons’ involvement in the
conspiracy, the district court found that the evidence showed he
“was on the street regularly with Mr. Franklin,” “delivered testers
to Monica Bell,” “delivered [PCP] to Roberta Moore,” and
“handled PCP at M Street by being a runner for Mr. Franklin.”
Id. The district court also referenced the evidence describing
Simmons as “a flunky,” and found that “he would regularly
retrieve PCP vials from Franklin’s truck and bring [them] to M
Street Crew members,” that he could be seen “on the video
cam[era] delivering [PCP] to the undercover officer [Leftridge],”
and that “he stored 144 empty vials in his mother’s house.” Id.
at 49. Nevertheless, the district court concluded that it could not
find that Simmons knew or could reasonably foresee that the
conspiracy involved the full 30 kilograms in view of evidence
that he was not on the street every day, that “he’s terribly, terribly
addicted and would go off on binges on some unknown
regularity,” and that it was not clear exactly how often Simmons
worked with Franklin. Id.

The district court turned to the sentencing factors in 18
U.S.C. § 3553(a). With regard to the nature and circumstances
of the offense, the district court found that Simmons was a
willing participant in a narcotics and RICO conspiracy. As to the
history and characteristics of the defendant, the district court
found that Simmons was addicted to drugs, suggesting a higher
sentence. Regarding the seriousness of the offenses, the district
court found that they were serious. Finally, as to the need for
 72

adequate deterrence and to protect the public from further crimes,
the district court found that Simmons’ drug use made him a risk
to commit future crimes. Aug. 24, 2006 Sent. Hg. at 51–52.
Based on these findings, the district court concluded that a
sentence within the Guidelines range would not be “just
punishment” in view of Simmons’ conduct, convictions, history,
and characteristics, and sentenced Simmons to 264 months’
imprisonment. Id. at 52. Upon inquiring of his counsel whether
these were “the necessary findings,” Simmons’ counsel agreed
they were, and also agreed later in the sentencing hearing that the
district court had “addressed and resolved” all of Simmons’
objections. Id. at 52, 54.

On appeal, Simmons contends his sentencing was
procedurally unsound because the district court failed to give
adequate reasons for imposing an above-Guidelines sentence, and
the sentence was substantively unreasonable. Our review for
both procedural soundness — including whether the district court
considered the necessary factors and adequately explained a
deviation from the Guidelines — and the substantive
reasonableness of sentences is for abuse of discretion. Gall v.
United States, 552 U.S. 38, 51 (2007). Where a defendant failed
to make a timely objection to the alleged procedural error in the
district court, however, our review is for plain error. In re Sealed
Case, 527 F.3d 188, 191–92 (D.C. Cir. 2008). If there was no
procedural error, the court then considers whether the sentence
was substantively reasonable, giving “due deference” to the
district court’s determination that the § 3553(a) factors, as a
whole, justify the extent of the variance. Gall, 552 U.S. at 51.
The court reviews the substantive reasonableness of a sentence
under the abuse of discretion standard even when no objection
was raised in the district court. See United States v. Bras, 483
F.3d 103, 113 (D.C. Cir. 2007).
 73

A

Simmons contends that the district court failed to provide
adequate reasons for imposing an above-Guidelines sentence. He
does not contest the determination of his base offense level or the
adjustments for guns and selling drugs within 1,000 feet of a
school. Instead, he takes issue with the district court’s reasons
for imposing a sentence that was 29 months above the upper
bound suggested by the Guidelines range. Maintaining that the
district court gave only two justifications for this variance — the
seriousness of the offense and his history of drug abuse —
Simmons contends drug abuse is not an appropriate basis for
imposing an above-Guidelines sentence because the Guidelines
proscribe taking drug dependence or abuse into account. He cites
§ 5H1.4 of the Guidelines, which states that “[d]rug or alcohol
dependence or abuse is not a reason for a downward departure,”
and various pre-Booker cases holding that drug history may not
be a basis for a departure, but no case holding that drug history
may not be a basis for an upward variance. Nevertheless, he
maintains the same policy rationale supports both propositions,
presumably that the Guidelines sentencing scheme encourages
defendants to admit and seek treatment for their drug
dependency. Appellants’ Br. at 139; see also id. at 138 (citing
United States v. Luscier, 983 F.2d 1507, 1510 (9th Cir. 1993));
United States v. Richison, 901 F.2d 778, 781 (9th Cir. 1990).

Because Simmons did not object in the district court, our
review of his procedural challenge is for plain error, and we find
none. The record shows the district court adequately explained
its reasoning. In addition, although the district court did consider
Simmons’ history of drug abuse as one factor in its sentencing
decision, the record does not support Simmons’ claim that the
district court “relied primarily” on that history of abuse in
imposing an upward variance. Appellants’ Br. at 137. The
district court mentioned a number of other factors, especially the
 74

extent of his involvement in the overall conspiracy. In any event,
Simmons’ reliance on Guidelines § 5H1.4 is misplaced because
that provision refers only to downward departures based on drug
abuse; indeed, he overlooks that § 5H1.4 states that “[s]ubstance
abuse is highly correlated to an increased propensity to commit
crime,” suggesting drug abuse may be an appropriate reason for
an increased sentence.

B

Simmons contends, for the first time in his reply brief, that
the district court’s sentencing process was unsound because the
district court failed to provide him with a written statement of the
reasons for the variance as required under 18 U.S.C. § 3553(c)(2).
Simmons asserts the “Statement of Reasons” in the amended
judgment and conviction order (filed on Sept. 8, 2006) was left
blank as to the reasons for the upward variance. He relies on In
re Sealed Case, where this court held it was plain error for the
district court not to provide a written statement of reasons, stating
that “[w]hen a district judge fails to provide a statement of
reasons, as § 3553(c) requires, the sentence is imposed in
violation of law,” and “[t]he absence of a statement of reasons is
prejudicial in itself because it precludes appellate review of the
substantive reasonableness of the sentence.” 527 F.3d at 191,
193. Accordingly Simmons contends, because this court is
unable to determine the reasonableness of his sentence, a remand
for resentencing is required.

This contention fails for at least two reasons. First, the
contention is untimely because it is first raised in a reply brief.
See, e.g., United States v. Berkeley, 567 F.3d 703, 711 n.4 (D.C.
Cir. 2009); United States v. Johnson, 216 F.3d 1162, 1168 (D.C.
Cir. 2000). Second, the contention would be subject only to
review for plain error because Simmons did not so object in the
district court, and there is no error, much less plain error.
 75

Although the complete judgment does not appear in the joint
appendix filed by the parties and the “Statement of Reasons” was
sealed in the district court, the complete judgment in fact includes
a “Statement of Reasons” by the district court referencing its
findings at the sentencing hearing.7 Under the section titled
“Advisory Guideline Sentencing Determination,” the district
court wrote: “Narcotics and RICO conspiracy of insufficient
foreseeability of 30 kg but significantly more than 1–3 kg,
offense of conviction: ÷ See sentencing transcript.” Statement
of Reasons at 2. In the section titled “Departures Authorized by
the Advisory Sentencing Guidelines,” the district court indicated
that the sentence was above the advisory Guideline range and
listed the following “facts justifying the departure”:
“Aggravating: Clearly foreseeable of more than 1–3 kg but not
full 30 of co-conspirators.” Id. With the “Statement of Reasons”
appended to the original judgment and commitment order, this
court is able to conduct appellate review of the reasonableness of
Simmons’ sentence, including the variance, and a remand is
unnecessary. See In re Sealed Case, 527 F.3d at 193. (Although
the “Statement of Reasons” termed Simmons’ increased sentence
a “departure,” the record makes clear the district court was
imposing a variance. Compare United States v. (Daniel) Brown,
578 F.3d 221, 225–28 (3d Cir. 2009).)

C

Simmons contends his sentence was substantively
unreasonable because his “sad personal history and
characteristics, and his limited role in the offenses of conviction,
would have supported a variance below the guideline range.”

7
The “Statement of Reasons” remains under seal except
insofar as this opinion refers to information in the Statement. See
United States v. Reeves, 586 F.3d 20, 22 n.1 (D.C. Cir. 2009); United
States v. Parnell, 524 F.3d 166, 167 n.1 (2d Cir. 2008).
 76

Appellants’ Br. at 137–38. He points out that the government did
not request the upward variance and emphasizes his minor role in
the conspiracy: Unlike his co-conspirators, he did not make
much money from the conspiracy, did not possess a firearm, and
lived in poverty.

Simmons fails to demonstrate that his sentence was
substantively unreasonable for several reasons. He acknowledges
that the government advocated an initial base offense level of 38,
not 32, and he cannot deny that the evidence of his participation
in the conspiracy was substantial. The district court provided a
reasoned explanation for Simmons’ sentence based on the
statutory factors. As is evident from a comparison of his sentence
with the sentences imposed on the other appellants, the district
court accounted for the level and significance of Simmons’
participation in the conspiracy. See United States v. Thomas, 114
F.3d 228, 261–62 (D.C. Cir. 1997). And, in relying on
considerations invoking sentencing discretion, Simmons points
to no reason this court should not accord due deference to the
district court’s determination that the § 3553(a) factors justify a
variance. See Gall, 552 U.S. at 51.

XII

A

William Robinson, George Wilson, and Joseph Blackson
challenge the district court’s calculation of their Guidelines
ranges. They contend that the district court incorrectly attributed
to each of them the distribution of 30 or more kilograms of PCP.

The district court properly could find that more than 30
kilograms of PCP were involved in the M Street Crew
conspiracy. Pursuant to 21 U.S.C. § 848(b), the instructions
regarding the continuing criminal enterprise charge against
 77

Franklin (Count 3) required the jury to find that the CCE
involved distributing at least 30 kilograms of PCP, and the jury
so found. The only CCE predicate offense involving that amount
of PCP was Count 1, narcotics conspiracy, of which all appellants
were found guilty. Drugs distributed by a co-conspirator in
furtherance of a conspiracy are attributable to a member of the
conspiracy so long as the distribution was “reasonably
foreseeable” to that member. United States v. Childress, 58 F.3d
693, 722 (D.C. Cir. 1995); U.S.S.G. § 1B1.3(a)(1)(B). Even if
reasonably foreseeable, however, a member of a conspiracy is not
necessarily accountable for a co-conspirator’s “side deals” that
are not in furtherance of the conspiracy. United States v. Saro, 24
F.3d 283, 288 (D.C. Cir. 1994).

Herbert Martin testified that he had supplied Franklin with
“[a]t least about 15, 20 gallons” of PCP. Mar. 14, 2006 AM Trial
Tr. at 65. Conservatively estimated, in accordance with the
instructions to the jury, 15 gallons is 39 kilograms. There was
evidence, however, that Franklin had sold 6 kilograms of PCP to
Ceasar Harris independent of the M Street Crew conspiracy.
Subtracting the 6 kilograms sold to Harris left 33 kilograms of
PCP. During the course of the investigation, the law enforcement
task force intercepted 6,916 of Franklin’s telephone calls and
there was no reference in the recorded conversations to outside
sales other than to Harris. Robinson, Wilson, and Blackson do
not claim, much less point to evidence of, any other side deals by
Franklin. Neither do they contend the jury instructions failed to
instruct on the scope of the conspiracy. Therefore, in the absence
of evidence of other side deals, the district court’s finding that the
M Street Crew distributed more than 30 kilograms of PCP was
not clearly erroneous. The question remains whether the 30
kilograms of PCP was reasonably foreseeable to Robinson,
Wilson, and Blackson individually.
 78

• William Robinson. During sentencing the district
court made individualized findings that the M Street Crew sales
were foreseeable by Robinson in their entirety. We find no clear
error. The district court relied on the evidence that Robinson
“was engaged in selling activities almost daily,” that he “was the
source of PCP when Franklin was otherwise not handy,” and that
he “had regular and constant communications with Mr. Franklin
about the quantity of PCP on the street and who should get PCP
from whom and to whom should he sell it to and that sort of
thing.” Sept. 6, 2006 Sent. Hg. at 53. These findings are
supported by wiretaps and the testimony of Abney and
undercover officer Leftridge.

• George Wilson. In finding Wilson could reasonably
foresee the full extent of the PCP sold by the M Street Crew, the
district court referred to Wilson’s proximity to the day-to-day
activities of the Crew (“Wilson was on the street at 18th and M
Northeast daily”), his proximity to Franklin (“Wilson was in
almost daily contact with Mr. Franklin”), and his role in directing
sales (Wilson was “observant as to the actions of the crew and the
members and engaged in sales” and reported his observations to
Franklin). Aug. 17, 2006 Sent. Hg. at 37–38. These findings,
too, are supported by wiretaps and Abney’s testimony, and are
not clearly erroneous.

• Joseph Blackson. Blackson was incarcerated
following his arrest on July 29, 2003. The district court found
that “Mr. Blackson had direct knowledge of the growth of the
scope of the conspiracy,” that his trafficking to Officer Leftridge
was “part and parcel of the growth of that drug trafficking,” and
that “for a period of time he could certainly observe the level of
sales by his co[-]conspirators.” Aug. 31, 2006 Sent. Hg. at 66.
The district court also found that Blackson never “withdrew from
the conspiracy” and that he “immediately went back to
trafficking” after his release, so that he knew or could reasonably
 79

foresee the full amount of PCP sold by the M Street Crew,
including that sold while he was incarcerated. Id. at 67. These
findings are not clearly erroneous. Blackson concedes that his
imprisonment in 2003 did not constitute a withdrawal from the
conspiracy, and he does not challenge the district court’s finding
that he went back to selling drugs upon his release. Testimony
from Ronnie Tucker, Abney, and undercover officer Leftridge
supports the district court’s finding that Blackson had sufficient
involvement in the conspiracy to reasonably foresee the amount
of PCP sold.

B

Wilson and Blackson also challenge the increase in their
sentences under the Guidelines for having played a management
or supervisory role with respect to the M Street Crew’s
distribution of PCP, ecstasy, and crack cocaine. See U.S.S.G.
§ 3B1.1(b). The Guidelines list a number of factors that a
sentencing court should consider when deciding whether to apply
an enhancement under § 3B1.1(b) for a defendant’s role,
including:

the exercise of decision making authority, the nature of
participation in the commission of the offense, the
recruitment of accomplices, the claimed right to a larger
share of the fruits of the crime, the degree of
participation in planning or organizing the offense, the
nature and scope of the illegal activity, and the degree of
control and authority exercised over others.

U.S.S.G. § 3B1.1 App. Note 4; see also United States v. Smith,
374 F.3d 1240, 1249 (D.C. Cir. 2004). The court has held that
“[a]ll persons receiving an enhancement [under § 3B1.1] must
exercise some control over others.” United States v. Graham,
 80

162 F.3d 1180, 1185 (D.C. Cir. 1998). Because the evidence
supports such a finding as to Wilson and Blackson, we affirm.

• George Wilson. The evidence relied upon by the
district court at sentencing demonstrates both that a number of
the relevant factors were present in Wilson’s case and that the
district court considered them in sentencing him. Abney’s
testimony, for example, indicates that Wilson exercised decision-
making authority. Indeed, the district court cited Abney’s
testimony in stating that “Mr. Wilson directed others. Mr. Abney
characterized Mr. Wilson, Mr. Robinson and Mr. Blackson as
lieutenants as opposed to foot soldiers[, and] when Mr. Franklin
was absent, the street sellers would go to the lieutenants when
they needed advice.” Aug. 17, 2006 Sent. Hg. at 42. Additional
evidence relied upon by the district court shows Wilson directly
planning or organizing: A wiretapped conversation revealed
Wilson “talking of holding a gun to the man suspected of theft of
the crew drugs that also shows taking charge in a way that the
others did not.” Id. at 43. The district court further found based
on cooperating Crew-member testimony that Wilson had chased
a non-Crew member from the street in order “to protect the sales
for the organization.” Id. at 42–43. And, based on other
testimony, the district court found that Wilson was viewed as a
leader by Crew members. Id. at 43.

These findings are supported by evidence showing that
Wilson exercised “some control over others,” Graham, 162 F.3d
at 1185. For example, after classifying Wilson as a “lieutenant,”
Abney referred to “John [Franklin] and the lieutenants” as those
“whose recommendation or whose suggestion [it] was that there
be” a rotational system of drug selling. May 2, 2006 AM Trial
Tr. at 16, 98. These “lieutenants” resolved altercations among
the “foot soldiers” in Franklin’s absence. Abney’s view of
Wilson as a supervisor is also supported by at least one wiretap
recording on which Wilson was recorded telling Franklin that he
 81

had admonished “foot soldier” Ronnie Tucker for “his failure to
maintain sales the way he was suppose[d] to.” Aug. 17, 2006
Sent. Hg. at 43. Given the district court’s findings and the record
evidence demonstrating his management or supervisory role,
Wilson’s contention that “the court did not take into account the
totality of Abney’s testimony” in sentencing him, Appellants’ Br.
at 150, is unpersuasive. See Smith, 374 F.3d at 1250.

• Joseph Blackson. The district court made a similar
finding regarding Joseph Blackson’s role in the conspiracy. The
district court found that Blackson was heavily involved in drug
sales on M Street, as exemplified by his dealings with undercover
officer Leftridge. He “was the one with whom Officer Leftridge
made her initial connections,” “he sold her wholesale quantities
of drugs,” and “he got the PCP that he sold from Mr. Franklin.”
Aug. 31, 2006 Sent. Hg. at 68. Blackson’s own words to
undercover officer Leftridge confirmed this: He told her “that he
and his brother supply everyone on M Street,” and that “he and
his brother sold Ecstasy before PCP.” Id. The district court also
found that investigating officers initially thought Blackson was
the Crew leader based on his “conduct and position,” and that
while in jail Blackson wanted to know what was happening to
others who were still on the street. Id. at 68–69. Additionally,
the district court found that some cooperating witnesses identified
Blackson as a “lieutenant.” Id. at 69. The district court
concluded:

Proving that Mr. Blackson was a leader in other ways
isn’t really in the record. But I think what is in the record
and the totality of the evidence is sufficient for the Court
to find that with individual attention to Mr. Blackson that
he was more of a supervisor/leader/manager type than the
guys who were selling on the streets. They certainly
viewed him in that way.

Id.
 82

Although the district court’s findings might have been
clearer concerning whether Blackson exercised some control of
others, they suffice. There was record evidence supporting the
district court’s finding that Blackson was a manager/supervisor.
Most pertinently, Abney had named “John [Franklin] and the
lieutenants” as suggesting the rotational system of drug selling.
May 2, 2006 AM Trial Tr. at 98. According to Abney, these
“lieutenants,” including Blackson, resolved altercations among
“foot soldiers” in Franklin’s absence, id. at 13–15, and Ronnie
Tucker testified Blackson sometimes held PCP for Franklin when
he was not around, Apr. 24, 2006 PM Trial Tr. at 18. However,
the district court did agree with Blackson that Abney’s and
Tucker’s testimony was “somewhat disjointed and difficult to
really pin down.” Aug. 31, 2006 Sent. Hg. at 68. At times
Abney seemed to confuse status as a “lieutenant” possessing
command authority with either a dealer’s separate drug
connection, his financial success, or with his self-esteem. See
supra Part IX. Also, Tucker appeared at one point to equate
Blackson to Simmons, a “foot soldier”; this evidence might have
tended to show that Blackson was at the bottom level of the
conspiracy, which would not be sufficient to justify an
enhancement under § 3B1.1(b), Graham, 162 F.3d at 1184.

But recognizing these problems, the district court could sort
through the evidence, credit Abney’s testimony that Blackson
would settle altercations in Franklin’s absence, and find that some
“foot soldiers” viewed Blackson as having control over them.
Abney’s testimony supports the finding that Blackson exercised
the requisite degree of “control over others,” Graham, 162 F.3d
at 1185. Likewise, Blackson’s statements to Officer Leftridge
that he and Franklin supplied everyone on M Street and that
dealing with Franklin was the same as dealing with him both
indicate a managerial role in the conspiracy. Moreover, the fact
that the investigating officers initially thought Blackson was the
Crew leader at least supports the conclusion that his role was that
 83

of a manager/supervisor. According due deference to the district
court’s application of the Sentencing Guidelines to evidentiary
findings, United States v. Tann, 532 F.3d 868, 874 (D.C. Cir.
2008), the district court had a sufficient basis to conclude that
Blackson was a manager/supervisor.

***

For the foregoing reasons, except for Blackson’s judgment
as to Count 31, we affirm the district court’s judgments. We
vacate Blackson’s judgment on Count 31 and remand to the
district court for further proceedings consistent with this opinion.

So ordered.