United States v. Sherman Brown ( 2017 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0638n.06
Nos. 15-1963, 15-1966, 15-1998, 15-2064, 15-2065, 15-2089
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA )
FILED
) Nov 17, 2017
Plaintiff-Appellee, ) DEBORAH S. HUNT, Clerk
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
MARVIN NICHOLSON; BRIAN JACKSON; ) COURT FOR THE EASTERN
SHERMAN BROWN; MATTHEW SCHAMANTE; ) DISTRICT OF MICHIGAN
BRYAN SORRELL; ANTONIO JOHNSON, )
)
Defendants-Appellants.
BEFORE: GIBBONS, COOK, and THAPAR, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. This consolidated appeal arises from the
convictions of six members of the Phantom Motorcycle Club (“PMC”): Marvin Nicholson,
Antonio Johnson, Bryan Sorrell, Matthew Schamante, Brian Jackson, and Sherman Brown.
The government brought various charges against these six appellants and others1 in a
fifteen-count indictment. After a six-week trial, the jury convicted these defendants of:
 Nicholson – RICO Conspiracy, 18 U.S.C. § 1962(d); Assault with a Dangerous Weapon
in Aid of Racketeering, 18 U.S.C. § 1959(a)(3); Conspiracy to Assault with a Dangerous
Weapon in Aid of Racketeering, 18 U.S.C. § 1959(a)(6); two counts of Use and Carry of
a Firearm During, and in Relation to, a Crime of Violence, 18 U.S.C. § 924(c);
Conspiracy to Commit Murder in Aid of Racketeering, 18 U.S.C. § 1959(a)(5);
Assaulting, Resisting, or Impeding Certain Officers or Employees with a Dangerous
Weapon, 18 U.S.C. § 111(b); two counts of Felon in Possession of a Firearm, 18 U.S.C.
§ 922(g)(1).
1
Two of the individuals charged in the indictment, Christopher Odum and William Frazier, are also before
this court on appeal. In the district court, proceedings against Frazier and Odum were severed, and the case against
them proceeded separately. The cases were also initially consolidated on appeal, but this court granted Frazier and
Odum’s motion to separate cases for oral argument.
No. 15-1963/1963/1966/1998/2064/2065/2089, United States v. Nicholson, et al.
 Johnson – RICO Conspiracy, 18 U.S.C. § 1962(d); Assault with a Dangerous Weapon in
Aid of Racketeering, 18 U.S.C. § 1959(a)(3); Conspiracy to Assault with a Dangerous
Weapon in Aid of Racketeering, 18 U.S.C. § 1959(a)(6); Use and Carry of a Firearm
During, and in Relation to, a Crime of Violence, 18 U.S.C. § 924(c); Conspiracy to
Commit Murder in Aid of Racketeering, 18 U.S.C. § 1959(a)(5); Felon in Possession of a
Firearm, 18 U.S.C. § 922(g)(1).
 Sorrell – RICO Conspiracy, 18 U.S.C. § 1962(d); Assault with a Dangerous Weapon in
Aid of Racketeering, 18 U.S.C. § 1959(a)(3); Conspiracy to Assault with a Dangerous
Weapon in Aid of Racketeering, 18 U.S.C. § 1959(a)(6); Use and Carry of a Firearm
During, and in Relation to, a Crime of Violence, 18 U.S.C. § 924(c); Conspiracy to
Commit Murder in Aid of Racketeering, 18 U.S.C. § 1959(a)(5).
 Schamante – RICO Conspiracy, 18 U.S.C. § 1962(d); Possession of a Firearm Not
Registered in the National Firearms Registration, 26 U.S.C. §§ 5841, 5861(d), 5871.
 Jackson – Conspiracy to Commit Murder in Aid of Racketeering, 18 U.S.C. § 1959(a)(5).
 Brown – Conspiracy to Commit Murder in Aid of Racketeering, 18 U.S.C. § 1959(a)(5).
The appellants now challenge numerous aspects of the trial and sentencing. We affirm
the trial court.
I.
The charges and convictions in this case stem from a series of PMC confrontations with
rival motorcycle clubs. PMC is an “outlaw” motorcycle club that has chapters in Michigan,
Ohio, and six other states. The Detroit chapter is the “mother chapter.” PMC has a hierarchical
structure, with a national president, vice-president, enforcers, and treasurer. Each chapter also
has a chapter president and vice-president. PMC has a set of by-laws, members are required to
pay dues, and chapters pay money to the national treasurer.
PMC places high value on being the toughest, or “baddest,” outlaw motorcycle club.
One way to establish this dominance is to take the leather vests worn by members of rival clubs
(known as “rags”), which are important symbols in motorcycle club culture. This is considered
the ultimate sign of disrespect. PMC members are not allowed to let rivals take their own rags,
2
No. 15-1963/1963/1966/1998/2064/2065/2089, United States v. Nicholson, et al.
and they must resist with force or use violence to get them back. PMC’s rival motorcycle clubs
in the Detroit area include Hell Lovers and Satan’s Sidekicks.
Johnson served as PMC’s national president from 2009 until his indictment in this case.
Nicholson was a national enforcer, whose job it was to protect the national president. Brown
was formerly a national enforcer, but at the time of the indictment he no longer held a national
role. Sorrell and Jackson were both members of the Inkster, Michigan, chapter of PMC.
Schamante was vice president and then president of the Pontiac, Michigan, chapter.
Carl Miller, who gave extensive testimony as a government witness in this case, joined
PMC in 2007 and then became president of the Detroit chapter in 2012. After he was arrested
helping Sorrell steal a motorcycle in 2013, Miller began to cooperate with the ATF and FBI
investigation of PMC. Miller began recording his conversations with other PMC members, and
many of these recordings were introduced at trial.
II.
The defendants first challenge the district court’s denial of their motions for acquittal
based on insufficient evidence on several counts. The district court’s denial of a motion for
judgment of acquittal is reviewed de novo. See United States v. Vichitvongsa, 819 F.3d 260, 270
(6th Cir. 2016), cert. denied, 137 S. Ct. 79 (2016). In assessing the sufficiency of the evidence,
the test is “whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). “Circumstantial evidence
alone is sufficient to sustain a conviction and such evidence need not remove every reasonable
hypothesis except that of guilt.” United States v. Lowe, 795 F.3d 519, 522–23 (6th Cir. 2015)
(quoting United States v. Algee, 599 F.3d 506, 512 (6th Cir. 2010)). This standard imposes “a
3
No. 15-1963/1963/1966/1998/2064/2065/2089, United States v. Nicholson, et al.
very heavy burden” on defendants. United States v. Barnes, 822 F.3d 914, 919 (6th Cir. 2016)
(quoting United States v. Abboud, 438 F.3d 554, 589 (6th Cir. 2006)). We find that each
conviction is supported by sufficient evidence.
A.
Johnson, Nicholson, Sorrell, and Schamante first challenge the sufficiency of evidence
with regards to their RICO conspiracy convictions under 18 U.S.C. § 1962(d). To be convicted
of RICO conspiracy, a defendant must intend to further an endeavor that, if completed, would
satisfy all elements of a RICO offense. Salinas v. United States, 522 U.S. 52, 65 (1997); United
States v. Fowler, 535 F.3d 408, 421 (6th Cir. 2008). Defendants were charged with conspiring to
violate § 1962(c). Therefore, to sustain these convictions, the government must have shown that
each defendant agreed (1) to associate with an enterprise that has activities affecting interstate
commerce; (2) to participate in the conduct of the enterprise’s affairs; and (3) that either he or
another conspirator would engage in a pattern of racketeering activity. See Fowler, 535 F.3d at
418; see also 18 U.S.C. § 1962(c)–(d).
1.
Defendants first claim that the government failed to show at trial that PMC is an
enterprise. 18 U.S.C. § 1961(4) defines “enterprise” for RICO purposes as “any individual,
partnership, corporation, association, or other legal entity, and any union or group of individuals
associated in fact . . . .” Here, the government alleged an association-in-fact enterprise. An
association-in-fact enterprise requires only three structural features: “a purpose, relationships
among those associated with the enterprise, and longevity sufficient to permit these associates to
pursue the enterprise’s purpose.” Boyle v. United States, 556 U.S. 938, 946 (2009).
4
No. 15-1963/1963/1966/1998/2064/2065/2089, United States v. Nicholson, et al.
At trial, the prosecution presented ample evidence that PMC had the required purpose,
relationships, and longevity to qualify as an enterprise. The government showed that PMC’s
purpose was to promote and protect the organization’s “power, territory, and reputation . . .
through the use of intimidation [and] violence” by introducing testimony outlining the
importance to PMC of earning respect as the “baddest” motorcycle club. DE 201, Third
Superseding Indictment, Page ID 1664. It also demonstrated that PMC had the purpose of
enhancing its members’ money-making activities, including trafficking in stolen motorcycles, by
showing that Phantoms assisted each other in stealing motorcycles and transporting them across
state lines. For example, Phantoms would alert each other when a member had stolen a
motorcycle, and a Phantom would be assigned to teach new members how to steal motorcycles.
The required relationships were evidenced by testimony regarding PMC’s by-laws, its
hierarchical chain of command, and the process for becoming a PMC member. Finally, in
addition to testimony from multiple witnesses who had been members of PMC for several years,
the government introduced evidence that PMC has existed since 1968, demonstrating longevity.
Based on this, a rational juror could conclude that PMC was an association-in-fact enterprise.
Sorrell and Schamante also argue that PMC’s activities did not affect interstate
commerce. To meet RICO’s “affecting interstate commerce” requirement, the government need
only prove that the enterprise as a whole engaged in interstate commerce or that its activity
affected interstate commerce. See United States v. Qaoud, 777 F.2d 1105, 1116 (6th Cir. 1985)
(noting that it is the conduct of the “criminal enterprise itself,” rather than the “individual
defendant,” that must affect interstate commerce). If an enterprise engages in economic activity,
then even a de minimis connection to interstate commerce is sufficient to meet the interstate
requirement; however, if an enterprise does not engage in economic activity, then it must have a
5
No. 15-1963/1963/1966/1998/2064/2065/2089, United States v. Nicholson, et al.
more significant effect on interstate commerce. See Waucaush v. United States, 380 F.3d 251,
255–56 (6th Cir. 2004).
At trial, the jury heard extensive testimony regarding PMC’s interstate economic
activities, such as paying money toward a national fund and transporting stolen motorcycles
across state lines. Testimony also evidenced members’ use of hotels during PMC gatherings.
Thus, a jury could rationally conclude from the evidence that PMC was either directly engaged
in or substantially affected interstate commerce. See United States v. Donovan, 539 F. App’x
648, 660–61 (6th Cir. 2013).
2.
Schamante next asserts that there was insufficient evidence that he was associated with
the PMC enterprise. He concedes, however, that he served as the vice president and then
president of his chapter. This leadership role more than satisfies RICO’s loose association
requirement. See United States v. Delgado, 401 F.3d 290, 297 (5th Cir. 2005) (finding
association because defendant “personally testified that he was a member” of the enterprise);
United States v. Marino, 277 F.3d 11, 33 (1st Cir. 2002) (“Association may be by means of an
informal or loose relationship.”); United States v. Parise, 159 F.3d 790, 796 (3d Cir. 1998) (“For
the purposes of RICO, the threshold showing of ‘association’ is not difficult to establish: it is
satisfied by proof that the defendant was aware of at least the general existence of the enterprise
named in the indictment.” (citation and internal quotation marks omitted)).
Schamante and Sorrell each also argue that they did not participate in the affairs of the
PMC enterprise. The RICO participation prong is met when the defendant had “some part in
directing the enterprise’s affairs,” which “can be accomplished either by making decisions on
behalf of the enterprise or by knowingly carrying them out.” Fowler, 535 F.3d at 418 (citing
6
No. 15-1963/1963/1966/1998/2064/2065/2089, United States v. Nicholson, et al.
Reves v. Ernst & Young, 507 U.S. 170, 179 (1993)); see also Ouwinga v. Benistar 419 Plan
Servs., Inc., 694 F.3d 783, 793 (6th Cir. 2012) (knowingly carrying out the orders of an
enterprise satisfies the Reves test). The jury heard testimony that Sorrell shot Satan’s Sidekick
member Leon McGee after PMC president Johnson instructed PMC members to take Satan’s
Sidekicks’ rags and that Schamante participated in the fight at a Hell Lovers’ party on Johnson’s
orders and periodically supplied guns to other Phantoms. Moreover, Schamante acknowledged
that he served in leadership roles within PMC. Based on this evidence, a rational jury could
certainly find that Schamante and Sorrell participated in PMC’s affairs.
3.
Appellants next allege that the government did not present sufficient evidence of a
pattern of racketeering to sustain their convictions. A pattern of racketeering activity requires at
least two predicate acts of racketeering related to the enterprise that amount to continued
criminal activity. 18 U.S.C. § 1961(5); H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 239 (1989);
United States v. Corrado, 227 F.3d 543, 554 (6th Cir. 2000) (outlining the “relationship plus
continuity” test). These predicate acts do not need to be directly interrelated to establish the
required relationship, so long as they are connected to the enterprise’s affairs and operations.
United States v. Lawson, 535 F.3d 434, 444 (6th Cir. 2008); see also H.J. Inc., 492 U.S. at 240.
Continuity can be shown by a series of related predicate acts occurring over an extended period
of time. See H.J. Inc., 492 U.S. at 241–42; Vild v. Visconsi, 956 F.2d 560, 569 (6th Cir. 1992).
At trial, the prosecution introduced evidence related to PMC acts of violence and
intimidation between 2009 and 2013. The jury heard evidence of armed PMC members
traveling from Michigan to Cleveland, Ohio, to intimidate a rival motorcycle club, the Zulus,
into permitting PMC to establish a chapter in Cleveland in 2009. Additional testimony described
7
No. 15-1963/1963/1966/1998/2064/2065/2089, United States v. Nicholson, et al.
armed Phantoms taking the rags from leaders of the Omens motorcycle club in 2010, taking the
Black Bottoms motorcycle club’s rags in 2013, and taking Hell Lovers’ rags in Kentucky in
2013. There was also extensive testimony showing that PMC members raided a Hell Lovers
“bridge-the-gap” party in 2013 and that president Johnson instructed members to “tear the party
up, act as Phantoms.” Then, in September 2013, after Sidekicks disrespected Johnson, armed
PMC members went on a mission to take Sidekicks’ rags by force. After spotting Sidekick Leon
McGee leaving another club’s clubhouse, the Phantoms attacked, and Sorrell shot McGee. The
prosecution also introduced evidence of a PMC conspiracy to murder members of the rival Hell
Lovers motorcycle club in retaliation for a Phantom’s death, though this plan was disrupted
when the ATF and FBI executed search warrants on Nicholson’s, Johnson’s, and another
Phantom’s homes in October 2013.
Because a rational jury could conclude that these predicate acts, which extended across
several years, related to the enterprise’s affairs and operations, there was sufficient evidence that
a pattern of racketeering activity existed.
4.
Johnson, Nicholson, Sorrell, and Schamante next allege that the government did not
establish their participation in the “pattern of racketeering activity” required for a RICO
conspiracy conviction. However, unlike a § 1962(c) substantive RICO violation, to prove RICO
conspiracy, the prosecution is not required to show that a defendant actually committed a
racketeering act or any overt act at all. Salinas, 522 U.S. at 65 (“The interplay between
subsections [§ 1962](c) and (d) does not permit us to excuse from the reach of the conspiracy
provision an actor who does not himself commit or agree to commit the two or more predicate
acts requisite to the underlying offense.”); United States v. Corrado, 286 F.3d 934, 937 (6th Cir.
8
No. 15-1963/1963/1966/1998/2064/2065/2089, United States v. Nicholson, et al.
2002) (“Unlike the general conspiracy statute, § 1962(d) requires no ‘overt or specific act’ in
carrying the RICO enterprise forward.”). Instead, a RICO conspiracy conviction can be
sustained if a defendant agreed that either he or someone else would commit at least two RICO
predicate acts. United States v. Driver, 535 F.3d 424, 432 (6th Cir. 2008); United States v.
Saadey, 393 F.3d 669, 676 (6th Cir. 2005). This agreement does not have to be overt and may be
inferred from a defendant’s acts. United States v. Hughes, 895 F.2d 1135, 1141 (6th Cir. 1990);
Fowler, 535 F.3d at 420–21.
The prosecution introduced sufficient evidence that Johnson, Nicholson, Sorrell, and
Schamante were involved in a conspiracy with other Phantoms that included an agreement to
commit at least two predicate acts. The evidence at trial showed that Johnson served as PMC
national president beginning in 2009, ordered the confrontation in Cleveland with the Zulus in
2009, the Omens in 2010, the Satan’s Sidekicks in 2013 (which led to the shooting of Leon
McGee), and directed the plot to murder Hell Lovers. Nicholson served as a national enforcer
and participated in the raid on the Zulus, the hunt for Sidekicks that led to the McGee shooting,
and the plot to murder Hell Lovers. Sorrell participated in the raid on the Black Bottoms, was
present at the bridge-the-gap party, shot McGee, and participated in the plot to murder Hell
Lovers. Schamante served as president and vice president of the PMC Pontiac chapter, was
present at the bridge-the-gap party, and periodically provided guns to PMC members—
sometimes with obliterated serial numbers.
Thus, even though it is not required for a RICO conspiracy conviction, these defendants
were directly involved in many of the RICO predicate acts. A rational jury could find that each
defendant agreed that either he or someone else would commit at least two RICO predicate acts.
9
No. 15-1963/1963/1966/1998/2064/2065/2089, United States v. Nicholson, et al.
Having failed to demonstrate insufficient evidence for any of the prongs of RICO
conspiracy, we find that there is sufficient evidence to sustain each appellant’s RICO conspiracy
conviction.
B.
Johnson, Nicholson, Sorrell, Brown, and Jackson next assert that insufficient evidence
exists to sustain their convictions for Violent Crimes in Aid of Racketeering (“VICAR”),
18 U.S.C. § 1959(a). We hold the evidence is sufficient.
18 U.S.C. § 1959(a) prohibits committing or conspiring to commit certain violent crimes,
including murder and assault with a dangerous weapon, “for the purpose of gaining entrance to
or maintaining or increasing [one’s] position in an enterprise engaged in racketeering
activity . . . .” “Racketeering activity” and “enterprise” are given the same definitions as in
RICO.2 Therefore, the evidence discussed above related to the RICO charges establishes that the
government presented sufficient evidence that PMC is an enterprise affecting interstate
commerce engaged in racketeering activity for VICAR purposes. We now assess whether there
is sufficient evidence of the predicate crimes of violence and whether the defendants committed
these crimes to “maintain or increase” their positions in the PMC enterprise. We conclude that
there is and that they did.
1.
A VICAR conviction requires that the government prove the defendant committed the
predicate crime of violence. The defendants here were convicted of violent crimes related to two
primary incidents: the shooting of Leon McGee and the conspiracy to murder Hell Lovers.
2
The only difference is that the interstate commerce requirement in RICO is found in the statute’s
substantive provision, while in VICAR it is in the definition of “enterprise.” Compare 18 U.S.C. § 1962(c), with 18
U.S.C. § 1959(b)(2).
10
No. 15-1963/1963/1966/1998/2064/2065/2089, United States v. Nicholson, et al.
a.
In September 2013, after members of Satan’s Sidekicks disrespected Johnson, Johnson
instructed PMC members to take Sidekicks’ rags by force. PMC members gathered at the PMC
clubhouse (Nicholson, Jackson, Sorrell, and Brown were all present) and from there left to track
down Sidekicks. Although the mission was to steal rags, several Phantoms, including Sorrell,
were armed, and at one point Nicholson asked Miller whether everyone was armed, and Miller
responded that Brown was bringing his gun. Nicholson, Sorrell, and Brown, along with other
PMC members, staked out a rival’s clubhouse, and when Leon McGee emerged, Sorrell and
another Phantom attacked. Sorrell punched McGee, and McGee stabbed Sorrell, at which point
Sorrell shot McGee.
Johnson, Nicholson, and Sorrell were convicted of assault with a dangerous weapon in
aid of racketeering and conspiracy to assault with a dangerous weapon in aid of racketeering, or
aiding and abetting those offenses, related to the shooting of Leon McGee. The court instructed
the jury on direct liability, aiding and abetting liability, and Pinkerton liability. 18 U.S.C. § 2. A
defendant is guilty of aiding and abetting when he “takes an affirmative act in furtherance” of an
offense “with the intent of facilitating the offense’s commission.” Rosemond v. United States,
134 S. Ct. 1240, 1245 (2014). This is true “even if that aid relates to only one (or some) of a
crime’s phases or elements.” Id. at 1247. Under Pinkerton, all members of a conspiracy are
responsible for the acts committed by the other members in advancement of the conspiracy, so
long as they are reasonably foreseeable. Pinkerton v. United States, 328 U.S. 640, 646–48
(1946).
Johnson claims that the evidence is insufficient to sustain his VICAR conviction because
he only ordered Phantoms to strip Sidekicks of their rags—not to shoot anyone. However, a jury
11
No. 15-1963/1963/1966/1998/2064/2065/2089, United States v. Nicholson, et al.
could conclude that Johnson’s instruction “facilitat[ed] the offense’s commission” and that
escalation to violence was reasonably foreseeable. See Rosemond, 134 S. Ct. at 1245, 1248.
Similarly, Nicholson attended the PMC meeting before the assault on McGee, specifically asked
whether Phantoms brought guns, and was present at the scene of the shooting. Finally, Sorrell
was present at the meeting and actually shot Leon McGee. From this evidence, a rational jury
could conclude that defendants were guilty of assault with a dangerous weapon in aid of
racketeering and infer a conspiracy to do the same.
b.
All defendants except Schamante were convicted of conspiracy to commit murder in aid
of racketeering related to the PMC plot to murder Hell Lovers. After PMC member Steven
Caldwell was murdered while riding his motorcycle in late September 2013, PMC president
Johnson held a meeting in which he called for retaliation against Hell Lovers—the suspected
culprits. At the meeting—with Nicholson, Sorrell, Jackson, and Brown all in attendance—
Johnson announced a plan to murder three Hell Lovers, which would cause other Hell Lovers to
travel to Michigan for the funerals, at which time PMC would attack and kill a large number of
them. Nicholson dispensed orders to PMC members to carry out the first murder, and Nicholson
and other PMC members began preparations. Nicholson’s and Johnson’s direct involvement in
the conspiracy easily meet the sufficiency standard.
Additionally, Sorrell, Brown, and Jackson all attended the planning meeting and
individually made comments indicating agreement with the plot to kill Hell Lovers. In a
recorded conversation with government informant Miller, Sorrell referenced Johnson’s plan to
attack Hell Lovers and stated that that he was “waiting for the phone call” and that he was
12
No. 15-1963/1963/1966/1998/2064/2065/2089, United States v. Nicholson, et al.
“itching” to retaliate.3 DE 740, Gov’t Ex. 28A, Page ID 11227–28; DE 740, Gov’t Ex. 28B,
Page ID 11230. In another recording, Brown said to Miller that PMC should “[h]it em hard as
hell,” which Miller testified to at trial as referring to killing Hell Lovers. DE 711, Gov’t Ex.
43F, Page ID 9483. And in a conversation with Miller, Jackson recounted Johnson’s announced
plan and said that Slowpoke, the Hell Lover believed to have killed Caldwell, “gotta get it.” DE
740, Gov’t Ex. 36A, Page ID 11260. Thus, a rational jury could have found that Sorrell, Brown,
and Jackson participated in the conspiracy.
2.
Sorrell and Jackson further argue that the government did not present sufficient evidence
that they committed these predicate crimes “for the purpose of gaining entrance to or maintaining
or increasing position in an enterprise engaged in racketeering activity,” as required by the
VICAR statute. 18 U.S.C. § 1959(a). This court has explained that “VICAR’s ‘purpose’
element is met if the jury could find that an ‘animating purpose’ of the defendant’s action was to
maintain or increase his position in the racketeering enterprise.” United States v. Hackett,
762 F.3d 493, 500 (6th Cir. 2014). Thus, increasing his position within PMC need not have been
each defendant’s sole or even primary motivation.
A rational jury could find that this standard was met for each defendant. As for Sorrell,
at trial the government introduced evidence outlining the importance to PMC of maintaining its
reputation as the “baddest” biker gang and that stealing rags—the original mission that led to the
McGee assault—is how it maintains that reputation. See Hackett, 762 F.3d at 500 (finding
sufficient evidence of VICAR “purpose” even when defendant arguably could have acted in self-
3
Sorrell also argues that this is insufficient evidence of conspiracy because he cannot conspire with a
government informant, and these conversations were with Miller only. See United States v. Deitz, 577 F.3d 672,
681 (6th Cir. 2009). Although the recorded conversations were with Miller, from this evidence a rational jury could
conclude that Sorrell had agreed with other PMC members, particularly Johnson, about the object of the conspiracy.
13
No. 15-1963/1963/1966/1998/2064/2065/2089, United States v. Nicholson, et al.
defense). As for Jackson, the plot to murder Hell Lovers was hatched in retaliation for the
murder of a PMC member, and Jackson acknowledged that Phantoms were expected to retaliate
against anyone who disrespected them. See United States v. Gills, No. 15-1613, 2017 WL
3328036, at *3 (6th Cir. Aug. 4, 2017) (stating that a rational jury could find that defendant acted
to preserve standing in a gang because the gang “expected its members to retaliate violently
when someone disrespected or threatened a fellow member”). A rational jury could have
concluded that this expectation motivated Jackson’s participation in the conspiracy.
C.
Johnson, Nicholson, and Sorrell next challenge their convictions under 18 U.S.C.
§ 924(c) for using or carrying a firearm during and in relation to a crime of violence, or aiding
and abetting that offense, related to the McGee shooting. To be convicted of violating § 924(c)
under an aiding and abetting theory, a defendant must have advance knowledge that the plan
would include a firearm. Rosemond, 134 S. Ct. at 1249. This advance-knowledge requirement
does not mean that a defendant must know in advance that his confederate will actually use the
gun. Instead, the government must show that the defendant “decided to join in the criminal
venture . . . with full awareness of its scope . . . including its use of a firearm.” United States v.
Johnson, No. 16-2063, 2017 WL 3263744, at *8 (6th Cir. Aug. 1, 2017) (quoting Rosemond,
134 S. Ct. at 1249).
Sorrell, Nicholson, and Johnson each argue that they did not have this requisite advance
knowledge because the McGee incident was not supposed to involve a gun fight, and instead
Phantoms were only supposed to steal Sidekicks’ rags. We disagree. First of all, there is
overwhelming evidence—including Sorrell’s own statements caught on recording—that Sorrell
actually shot McGee. Thus, there is no reason to even rely on aiding and abetting liability for
14
No. 15-1963/1963/1966/1998/2064/2065/2089, United States v. Nicholson, et al.
Sorrell. Second, before the assault, Nicholson asked Miller whether other PMC members were
carrying weapons, and as a result knew that at least one Phantom would be bringing his gun.
Lastly, the government presented evidence at trial that prior raids ordered by Johnson included
firearms and that Johnson was aware that PMC members usually carried firearms on such raids.
See United States v. Soto, 794 F.3d 635, 662 (6th Cir. 2015). Viewing the evidence in the light
most favorable to the government, a rational jury could thus conclude that Johnson knew in
advance that the raid on Sidekicks would include firearms. See Johnson, No. 16-2063, 2017 WL
3263744, at *8. There was sufficient evidence presented at trial to sustain each defendant’s
§ 924(c) conviction.
D.
Johnson next argues that there is insufficient evidence to sustain his conviction of being a
felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). This conviction was based
on two pistols found by ATF agents executing a search warrant on a home with which Johnson
was associated. The evidence is sufficient to sustain this conviction.
The possession element of § 922(g)(1) can be satisfied by showing constructive
possession, which exists if an individual “knowingly has the power and the intention at a given
time to exercise dominion and control over an object, either directly or through others.” United
States v. Walker, 734 F.3d 451, 455 (6th Cir. 2013) (quoting United States v. Craven, 478 F.2d
1329, 1333 (6th Cir.1973)). Constructive possession may be proven by circumstantial evidence,
and it is not necessary that the defendant have exclusive possession. Id.; United States v. White,
679 F. App’x 426, 434 (6th Cir. 2017). Instead, “[p]roof that the person has dominion over the
premises where the firearm is located is sufficient.” White, 679 F. App’x at 434 (quoting United
States v. Kincaide, 145 F.3d 771, 782 (6th Cir. 1998)) (internal quotation marks omitted).
15
No. 15-1963/1963/1966/1998/2064/2065/2089, United States v. Nicholson, et al.
Here, the government introduced significant circumstantial evidence linking Johnson to
these guns. Prior surveillance had revealed Johnson at the home, and in executing the warrant,
agents seized documents indicating that Johnson owned the home.4 The pistols were found in a
closet that also held a Phantom vest with “President” on it. And in a recorded phone call,
Johnson expressed relief that he had not been at the house at the time of the search because “they
would’ve pulled two pistols out the house. . . . [T]hey would’ve had me.” DE 740, Gov’t Ex.
48C, Page ID 11289. Drawing inferences in favor of the government, a rational juror could find
that Johnson constructively possessed the firearms.
E.
Nicholson challenges his conviction for assaulting and resisting a federal officer with a
dangerous weapon in violation of 18 U.S.C. § 111(b) and the associated firearm violation under
18 U.S.C. § 924(c) for firing shots on ATF agents who were executing a search warrant at his
house on October 4, 2013. Nicholson claims he did not know the people he fired on were federal
agents. However, § 111(b) does not require that the defendant know the person he is assaulting
is a federal officer—it just requires an intent to assault. United States v. Feola, 420 U.S. 671,
684 (1975) (“All [§ 111] requires is an intent to assault, not an intent to assault a federal
officer.”); United States v. Plummer, 789 F.2d 435, 437 (6th Cir. 1986). Moreover, the search
teams used vehicles with flashing police lights, and agents knocked and announced their
presence repeatedly before breaching Nicholson’s front door. There is sufficient evidence to
sustain this conviction.
4
It was, however, later determined that Johnson had quitclaimed his interest in the property to his girlfriend
in 2010.
16
No. 15-1963/1963/1966/1998/2064/2065/2089, United States v. Nicholson, et al.
III.
Brown, Jackson, Schamante, and Sorrell argue that the district court erroneously denied
their constitutional fair-cross-section challenge to the jury venire. We hold that it did not.
During the second day of voir dire, the defendants challenged the composition of the jury
venire as unrepresentative of the number of African-Americans in the district’s Detroit Division.
Although the defendants had access to juror questionnaires indicating each prospective juror’s
racial and ethnic background for over a month, defense counsel made the motion only after
observing that just three African Americans remained in the jury pool of 100 potential jurors.
Citing a court rule, the district court told defendants that their motion should be referred to the
Chief Judge of the Eastern District of Michigan5 and instructed defendants to proceed with that
motion separately. Two weeks later, the defendants filed a motion alleging systematic
underrepresentation and requesting disclosure of jury wheel materials, which was referred to the
Chief Judge. In the interim between the defendants’ oral motion during voir dire and the filing
of the written motions with the Chief Judge, jury selection was completed, and the jury was
sworn in.
Upon referral, the Chief Judge denied the defendants’ oral motion during voir dire as
untimely under Federal Rule of Criminal Procedure 12(b)(3), which requires challenges to the
composition of the jury be made before “the start of trial.” Fed. R. Crim. P. 12(c). In so holding,
5
The referenced rule, Administrative Order No. 00-AO-060, actually instructs that if, “[i]n preparation for
resolution of a motion challenging the composition of a jury wheel or panel on the basis of race or ethnicity or
both,” a party moves for information beyond juror number, race, or Hispanic ethnicity, “such motion will be referred
to the Chief Judge.” Order No. 00-AO-060 (Disclosure of Juror Information), E.D. Mich. (Oct. 9, 2000),
http://www.mied.uscourts.gov/PDFFIles/00-AO-060.pdf [https://perma.cc/G375-CULP]. In their oral motion,
defendants did not originally ask for this type of information; however, when the defendants filed their written
motions to the Chief Judge, they did request this type of information.
17
No. 15-1963/1963/1966/1998/2064/2065/2089, United States v. Nicholson, et al.
the Chief Judge concluded that trial commences at the start of voir dire. Finding no good cause
for delay under Rule 12(c)(3), the Chief Judge refused to entertain the jury pool challenge.6
This court reviews a challenge to the composition of petit jurors de novo. United States
v. Ovalle, 136 F.3d 1092, 1100 (6th Cir. 1998); United States v. Allen, 160 F.3d 1096, 1101 (6th
Cir. 1998). A district court’s refusal to find good cause and prejudice to excuse an untimely
Rule 12 challenge is reviewed for abuse of discretion. Soto, 794 F.3d at 655; see also United
States v. Edmond, 815 F.3d 1032, 1043 (6th Cir. 2016), rev’d on other grounds, 137 S. Ct. 1577(2017).
“The Sixth Amendment secures to criminal defendants the right to be tried by an
impartial jury drawn from sources reflecting a fair cross section of the community.” Berghuis v.
Smith, 559 U.S. 314, 319 (2010). And Federal Rule of Criminal Procedure 12 controls the
timing of making a constitutional challenge to jury composition. Davis v. United States,
411 U.S. 233, 236–37 (1973); United States v. Boulding, 412 F. App’x 798, 802 (6th Cir. 2011).
Rule 12(b)(3) states that a motion challenging jury composition “must be raised by pretrial
motion if the basis for the motion is then reasonably available and the motion can be determined
without a trial on the merits.” Fed. R. Crim. P. 12(b)(3). Rule 12(c) then instructs that such
motions must be filed by the deadline set by the court, and, if the court does not set a deadline,
“the deadline is the start of trial.” Fed. R. Crim. P. 12(c)(1). If a party does not move by this
deadline, then the party must show good cause as to why the court should consider the untimely
motion. Fed. R. Crim. P. 12(c)(3).
Appellants and the government focus their argument on whether the oral motion raised
two days into voir dire was raised after the “start of trial” under Rule 12(c)(1) and thus time-
6
The Chief Judge also held that that because defendants’ jury pool challenge was untimely, their motion
for disclosure was moot.
18
No. 15-1963/1963/1966/1998/2064/2065/2089, United States v. Nicholson, et al.
barred, absent good cause. The government argues that the “start of trial” cutoff under Rule
12(c)(1) requires that a challenge to the jury pool be brought before voir dire begins. Appellants
instead assert that trial “starts” when jeopardy attaches, which, in a jury trial, is when the jury is
sworn in.7 E.g., Martinez v. Illinois, 134 S. Ct. 2070, 2074 (2014) (per curiam).
We believe that the 2014 Amendments to the federal rules clarify that for Rule 12
purposes, absent a deadline set by the court, trial does not “start” until jeopardy attaches. The
advisory committee notes accompanying the 2014 Amendments to 12(c), which added the “start
of trial” language, state:
Paragraph (c)(1) retains the existing provisions for establishing the time
when pretrial motions must be made, and adds a sentence stating that
unless the court sets a deadline, the deadline for pretrial motions is the
start of trial, so that motions may be ruled upon before jeopardy
attaches.
Fed. R. Crim. P. 12 advisory committee’s note to 2014 amendments (emphasis added). Thus, the
committee notes make clear that the swearing-in of the jury serves as the “start of trial.” The
Chief Judge therefore erred in holding that the motion during voir dire was untimely. However,
because the oral motion failed to make a prima facie constitutional fair-cross-section claim, even
though it was timely, it was still properly denied.
To succeed in making a prima facie case of a violation of the fair-cross-section
requirement, a defendant must show:
(1) that the group alleged to be excluded is a “distinctive” group in the
community; (2) that the representation of this group in venires from
which juries are selected is not fair and reasonable in relation to the
number of such persons in the community; and (3) that this
underrepresentation is due to systematic exclusion of the group in the
jury-selection process.
7
Normally a district judge will set a deadline for pretrial motions, eliminating the need to assess the precise
“start” of trial under 12(c)(1). This case, however, originally involved over a dozen defendants and was repeatedly
rescheduled (two defendants were ultimately tried separately), and the record does not indicate a final formalized
deadline for filing pretrial motions.
19
No. 15-1963/1963/1966/1998/2064/2065/2089, United States v. Nicholson, et al.
Duren v. Missouri, 439 U.S. 357, 364 (1979). “Exclusion is ‘systematic’ if it is ‘inherent in the
particular jury-selection process utilized.’” United States v. Suggs, 531 F. App’x 609, 619 (6th
Cir. 2013) (quoting Duren, 439 U.S. at 366). It is not sufficient to make general observations
about the assembled venire. See Allen, 160 F.3d at 1103 (noting that defendants “must show
more than that their particular panel was unrepresentative”). Thus, the defendants should have
made a motion outlining the aspects of the Eastern District of Michigan’s jury pool selection
process that lead to systematic exclusion of African Americans before the start of trial.
Here, however, the defendants did not make even a preliminary showing of systematic
exclusion. The motion during voir dire related only to observations about the assembled
venire—not the jury selection process.8 After the district judge instructed that matters related to
jury composition must go before the Chief Judge, the defendants hastened to note that they were
making their oral motion before “jeopardy will attach.” But despite counsels’ demonstrated
awareness of the importance of filing the motion in a timely manner, defendants did not file their
motions with the Chief Judge until over two weeks later—long after the jury was sworn in.
Defendants should have instead immediately filed a motion meeting the prima facie requirements
for a constitutional cross-section challenge or a motion requesting additional disclosures with the
Chief Judge. By delaying two weeks, the 12(c)(1) deadline passed.
In sum, although Rule 12 does not categorically bar constitutional fair-cross-section
claims raised during voir dire, such a motion must at least allege a prima facie case of systematic
exclusion. Thus, motions made during voir dire will likely require defense counsel to move
8
This is further demonstrated by the later requests and arguments made in defendants’ untimely motion for
disclosure filed with the Chief Judge. In that motion, the defendants stated that “examination of these [jury
selection] materials . . . will allow for an objective analysis of the formula employed by the Eastern District of
Michigan to determine if there is underrepresentation of African-Americans in the jury pool as a result of a
constitutional deprivation or systematic exclusion.” DE 412, Mot. for Disclosure, Page ID 1917. This shows that
the defendants had not yet decided for themselves, much less presented to the court, that there was systematic
exclusion at the time of the oral motion two weeks prior.
20
No. 15-1963/1963/1966/1998/2064/2065/2089, United States v. Nicholson, et al.
quickly to either request disclosure of nonpublic information or to use publicly available
information to make a prima facie showing of systematic exclusion before the jury is sworn.
Here, defendants did neither. They did not use the ample public information available detailing
the Eastern District’s jury pool selection method9 to make their motion before the district judge,
and they did not bring their motions before the Chief Judge until well after jeopardy attached.
Thus, although trial does not “start” until jeopardy attaches, defendants would be well advised to
bring these motions before voir dire.
IV.
Nicholson, Johnson, Jackson, Sorrell, and Schamante challenge the district court’s
handling of a Remmer hearing and the court’s denial of their joint motion for mistrial on the
issue. The district court did not err in denying defendants’ motion for a mistrial based on the
Remmer hearing.
Midway through trial, the court received a note from Juror 11 in which he reported being
followed by two people in a car. Before alerting the court, Juror 11 informed his fellow jurors of
the incident. The court then held a Remmer hearing and called each juror individually to an in
camera hearing to assess whether the report of this incident had impacted any juror. Before
beginning to question individual jurors, the court allowed counsel for the defendants to submit
written questions for the court to consider, and counsel for Jackson did so. The judge asked the
individual jurors two questions: (1) “Do you understand that the defendants, in this case, are not
involved in [Juror 11’s] experience?” and (2) “[D]o you feel that you can continue as a fair and
unbiased juror, in this case?” DE 451, Tr. Vol. 17, Page ID 4207–08. One juror was excused
9
The Eastern District of Michigan’s procedures for drawing potential jurors at that time was publicly
available information. See Administrative Order No. 13-AO-016 (2013 Juror Selection Plan), E.D. Mich. (Mar. 18,
2013), https://www.mied.uscourts.gov/PDFFIles/13Ao016.pdf [https://perma.cc/VCG8-KPMP]; Administrative
Order No. 13-AO-011 (Amended Master Jury Wheels), E.D. Mich. (Feb. 19, 2013), http://www.mied.uscourts.gov/
PDFFIles/13AO011.pdf [https://perma.cc/2FML-N7QA].
21
No. 15-1963/1963/1966/1998/2064/2065/2089, United States v. Nicholson, et al.
after stating that the incident would make her more cautious. All other jurors (including Juror
11) reported that they were not impacted and could continue to be fair jurors. The court found
that the jurors testified credibly and concluded that there was no credible allegation of extraneous
influences.
This circuit reviews a district court’s decision not to grant a mistrial after investigating
allegations of unauthorized contact with jurors for abuse of discretion. United States v. Pennell,
737 F.2d 521, 533 (6th Cir. 1984). Appellants argue that that the court did not do enough to
ascertain what each individual thought and felt about the incident. Some of the appellants also
argue that defense counsel should have been allowed to directly question jurors individually and
under oath. Neither argument has merit.
When the court learns of possible outside influences on the jury, it must conduct a
hearing to investigate. Remmer v. United States, 347 U.S. 227, 229–30 (1954). However, “[t]he
district court retains considerable discretion in deciding how to conduct such an inquiry.” United
States v. Taylor, 814 F.3d 340, 348 (6th Cir. 2016). The defense bears the burden of proving
prejudice, and “if a district court views juror assurances of continued impartiality to be credible,
the court may rely upon such assurances in deciding whether a defendant has satisfied the burden
of proving actual prejudice.” Pennell, 737 F.2d at 533.
Appellants first argue that the district court failed to engage in a searching inquiry and
that the questions were not phrased to elicit honest responses. The Sixth Circuit, however, has
recently spoken on this point. In United States v. Taylor, the panel affirmed a district court’s
Remmer hearing as effective, noting that the appellant’s argument centered not on a denial of
opportunity to establish bias, “but on the district court’s not having questioned the jurors as
extensively as [the defendant] would have liked.” Taylor, 814 F.3d at 350. It held that “[a]ll that
22
No. 15-1963/1963/1966/1998/2064/2065/2089, United States v. Nicholson, et al.
Remmer requires is that the defendant be given an opportunity to prove juror bias, not that he be
given the opportunity to prove juror bias based on answers to pre-determined questions.” Id. at
351 (internal citation omitted).
Appellants next claim that defense counsel should have had the opportunity to directly
question the jurors during the Remmer hearing—though none of the defense attorneys actually
requested this during the proceeding. They contend that United States v. Corrado, 227 F.3d 528(6th Cir. 2000), mandates that defense counsel be permitted to directly question jurors about
potential bias. However, this case does not mandate defense counsel participation in every
Remmer hearing, and both precedent and common sense indicate that the district court judge can
accurately and effectively assess issues of juror outside influence, particularly when these issues
arise in the middle of trial. United States v. Sturman, 951 F.2d 1466, 1478 (6th Cir. 1991)
(“[W]hen the questioning of the jurors occurs during the trial it is preferable it be done by the
judge. Jurors may resent being questioned directly by counsel.”); see also Taylor, 814 F.3d at
348–49.
Here, upon receiving the note from Juror 11, the district court immediately questioned the
jurors individually. This questioning, though not phrased precisely how defendants may have
wished, allowed the court to sufficiently probe whether each juror had been impacted by the
reported incident. The effectiveness of this questioning is exemplified by the court’s decision to
excuse one of the jurors. The district court did not commit an abuse of discretion in questioning
the jurors itself and refusing to ask the defense counsel’s proffered questions.
V.
The appellants next raise two arguments related to the jury instructions. A district court’s
decision not to give proposed jury instructions is reviewed for abuse of discretion. United States
23
No. 15-1963/1963/1966/1998/2064/2065/2089, United States v. Nicholson, et al.
v. LaVictor, 848 F.3d 428, 453–54 (6th Cir. 2017), cert. denied, 137 S. Ct. 2231 (2017).
“A refusal to give requested instructions is reversible error only if (1) the instructions are correct
statements of the law; (2) the instructions are not substantially covered by other delivered
charges; and (3) the failure to give the instruction impairs the defendant’s theory of the case.”
Id. at 454 (citing United States v. Newcomb, 6 F.3d 1129, 1132 (6th Cir. 1993)). The court
reviews objections to instructions not raised at trial for plain error. United States v. Lechner, 806
F.3d 869, 880 (6th Cir. 2015).
A.
The defendants first challenge the district court’s refusal to instruct the jury on what they
refer to as “subjective intent.”
In the “General Principles” portion of the jury instructions, the district court included
Sixth Circuit Pattern Jury Instruction 2.08, which provides jurors guidance on how to infer the
mental state of defendants to determine whether the required mens rea elements are met for each
charge.10 Counsel for defendants jointly requested that this instruction also state: “Speech is
protected by the First Amendment. Unless you find beyond a reasonable doubt that the
Defendants subjectively intended to carry out the conduct he [sic] verbally articulated.” DE 464,
Trial Tr. Vol. 24(A), Page ID 5637. Defense counsel argued that this instruction would likely be
required under Elonis v. United States, 135 S. Ct 2001 (2015), which was pending before the
Supreme Court at that time.
10
The district court instructed in relevant part:
Ordinarily, there is no way that a Defendant’s state of mind can be proved directly
because no one can read another person’s mind and tell what that person is thinking.
But a Defendant’s state of mind can be proved indirectly from the surrounding
circumstances. This includes things like what the Defendant said, what the Defendant
did, how the Defendant acted, and any other facts or circumstances in evidence that
show what was in the Defendant’s mind.
DE 658, Trial Tr. Vol. 27, Page ID 8542–43.
24
No. 15-1963/1963/1966/1998/2064/2065/2089, United States v. Nicholson, et al.
The district court rightly denied this requested instruction, as Elonis is wholly
inapplicable to this case.11 Elonis’s reasoning and precedential force only extend to cases
involving threat crimes related to speech activities—not to jury instructions in cases involving
mental states for crimes of violence or conspiracy. See Elonis, 135 S. Ct. at 2012 (declining to
consider any First Amendment issues). The government’s brief correctly notes that the
“[d]efendants’ argument fails to distinguish between statutes that penalize certain
communications themselves, and using statements as evidence of the existence and purpose of an
agreement.” CA6 R.58, Gov’t Br., at 127. The given instruction—Pattern Jury Instruction
2.08—rightly instructed the jury that they could consider a defendant’s speech as evidence of his
intent or agreement. In addition to this instruction, the jury was specifically instructed as to each
crime charged and on the government’s duty to prove every element—including mens rea
elements—beyond a reasonable doubt.
Given that the defendants’ proposed instruction was a misstatement of the law and that
the given instructions adequately covered the relevant charges, the district court did not abuse its
discretion by refusing to give the “subjective intent” instruction.
11
In Elonis the defendant was convicted of transmitting a threat in interstate commerce under 18 U.S.C.
§ 875(c) after the jury was instructed that a “true threat” is one that the speaker intentionally makes that would cause
a reasonable person to fear bodily injury or death—essentially allowing conviction based on negligence. See Elonis,
135 S. Ct. at 2007, 2011–12. The Supreme Court reversed, holding that § 875(c) required a mental state higher than
negligence. Id. at 2012–13. The Court noted that its conclusion was based on interpretation of § 875 and expressly
refused to consider any First Amendment issues. Id. at 2012.
25
No. 15-1963/1963/1966/1998/2064/2065/2089, United States v. Nicholson, et al.
B.
Johnson also argues that the jury was improperly instructed that Carl Miller was not a co-
conspirator and asks this court to review the instruction for plain error. Because Johnson
requested the instruction he now challenges, the invited error doctrine precludes this challenge
on appeal.
The invited error doctrine “holds that a party may not complain on appeal of errors that
he himself invited or provoked the court or the opposite party to make.” United States v.
Barrow, 118 F.3d 482, 490 (6th Cir. 1997); see also Lechner, 806 F.3d at 880; United States v.
Sharpe, 996 F.2d 125, 128–29 (6th Cir. 1993). At trial, Johnson’s counsel participated in the
request that the jury be instructed that Carl Miller, who served as a government informant, could
not be considered a co-conspirator, and the government and Johnson’s counsel specifically
agreed on the instruction now at issue. Although the invited error doctrine “does not foreclose
relief when the interests of justice demand otherwise,” justice does not so demand in this case, as
Johnson merely challenges the instruction as incorrect—not a as a serious breach of his
constitutional rights. See Barrow, 118 F.3d at 491 (entertaining a challenge to jointly submitted
jury instructions that allegedly violated defendant’s constitutional rights and distinguishing from
Sharpe, where “the defendant . . . was simply challenging the jury instructions as faulty”).
Moreover, though the invited error doctrine forecloses Johnson’s claim, we note that the given
instruction was a correct statement of law. See, e.g., United States v. Deitz, 577 F.3d 672, 681
(6th Cir. 2009) (stating that “[the informant’s] status as a government agent prevents the
government from proving the existence of a conspiracy solely between [the defendant] and [the
informant]”).
26
No. 15-1963/1963/1966/1998/2064/2065/2089, United States v. Nicholson, et al.
VI.
Sorrell raises two constitutional claims, neither of which have merit.
A.
Sorrell first claims that his Fifth Amendment right against self-incrimination and his
Sixth Amendment right to counsel were violated by Miller’s recording of Sorrell between
September and October 2013. At the time of these recordings, Sorrell had been arraigned and
was represented in Michigan state court on charges related to unlawfully driving an automobile.
On the tenth day of trial in district court, Sorrell’s counsel made a motion to suppress these
recordings, alleging that they violated Sorrell’s Sixth Amendment right to counsel. The court
found this motion untimely, noting that there was no good cause for delay. The court later ruled
that even had the motion been timely, suppression was not warranted under the Sixth
Amendment. Sorrell did not raise the Fifth Amendment argument at trial.
This court reviews the district court’s determination that a defendant has not established
good cause for delay under Rule 12(c)(3) for abuse of discretion. Soto, 794 F.3d at 655. It
reviews suppression claims raised for the first time on appeal for plain error. Id.
The district court did not abuse its discretion in finding that there was no good cause for
Sorrell’s delay in raising his Sixth Amendment claim. See Fed. R. Crim. P. 12(b)(3)(C), (c)(3).
Sorrell acknowledged that the motion was untimely, and the record indicates that Sorrell’s
counsel had notice of the recordings at least fifteen months before trial began. Further, even
were Sorrell to show good cause, his Sixth Amendment claim is meritless. At the time of the
recordings he was not represented by counsel as to the charges in this case, and the charges in the
pending state court case were not for the same offense. See Texas v. Cobb, 532 U.S. 162, 173
(2001) (adopting the Blockburger v. United States, 284 U.S. 299 (1932), “same offense” test for
27
No. 15-1963/1963/1966/1998/2064/2065/2089, United States v. Nicholson, et al.
attachment of Sixth Amendment right to counsel). Thus, his Sixth Amendment right to counsel
is not implicated here. Id.; McNeil v. Wisconsin, 501 U.S. 171, 175 (1991).
Sorrell’s Fifth Amendment claim is equally unpersuasive. The voluntary conversations
that Sorrell had with Miller were not interrogations, and Sorrell was not in custody at the time of
any of the conversations. See Miranda v. Arizona, 384 U.S. 436 (1966); see also Thompson v.
Keohane, 516 U.S. 99, 102 (1995). The district court did not err in refusing to suppress the
recordings.
B.
Sorrell next argues that the government wrongly suppressed exculpatory medical bills in
violation of Brady v. Maryland, 373 U.S. 83 (1963). After Sorrell was convicted and sentenced,
the government filed an application for victim restitution as to Leon McGee for his injuries from
the September 2013 shooting. Attached to this motion were medical bills from McGee’s time in
the hospital that had not been previously provided to Sorrell’s counsel.
Because the alleged Brady violation was not first raised with the district court, this court
reviews for plain error only.12 United States v. Crayton, 357 F.3d 560, 569 (6th Cir. 2004)
(“[When] the defense counsel did not make a motion for a mistrial or raise the question of a
possible Brady violation to the district court, we review at most for plain error.”); United States
v. Dhaliwal, 464 F. App’x 498, 504 (6th Cir. 2012).
To succeed on a Brady claim, a defendant must show: (1) that the evidence in question is
favorable, (2) that the state purposefully or inadvertently suppressed the relevant evidence, and
12
Instead of moving for a new trial with the district court, Sorrell initially raised his Brady argument for the
first time on appeal. On September 1, 2017—after the filing of all briefs in this appeal—Sorrell made a motion for
new a trial in the district court pursuant to Federal Rule of Criminal Procedure 33 related to the medical bill
evidence. The trial court, however, could not rule on that motion during this pending appeal. Fed. R. Crim. P.
33(b)(1) (“If an appeal is pending, the court may not grant a motion for a new trial until the appellate court remands
the case.”); see United States v. Blanton, 697 F.2d 146, 148 (6th Cir. 1983).
28
No. 15-1963/1963/1966/1998/2064/2065/2089, United States v. Nicholson, et al.
(3) that the state’s actions resulted in prejudice. Bell v. Bell, 512 F.3d 223, 231 (6th Cir. 2008);
see also Strickler v. Greene, 527 U.S. 263, 281–82 (1999). The prejudice prong of this test
requires that “there [be] a reasonable probability that, had the evidence been disclosed, the result
of the proceeding would have been different.” Turner v. United States, 137 S. Ct. 1885, 1893
(2017) (quoting Cone v. Bell, 556 U.S. 449, 470 (2009)).
These medical bills’ utter lack of materiality is enough to dispose of Sorrell’s Brady
claim. Sorrell argues that the bills could have been used to impeach government witnesses’
testimony because they do not specifically indicate that McGee was shot in the face. This
argument is unpersuasive. First, Sorrell’s charge related to this incident is assault with a deadly
weapon, which is not tied to the location of the victim’s wound. Second, there was substantial
evidence presented at trial—including Sorrell’s own statements caught on recording—that
Sorrell shot McGee. Finally, there was ample additional evidence at trial showing that McGee
suffered gunshot wounds to the face. Although these hospital bills were not introduced,
McGee’s hospital records were, and these stated that McGee that he received a gunshot wound
“to the face” and “had some bullet fragments in his face.” DE 739, Gov’t Ex. 61, Page ID
11009, 11007. The prosecution even introduced one such fragment at trial, and McGee testified
that it had been pulled from his face. Thus, Sorrell’s Brady claim is without merit.
VII.
Jackson challenges denial of his pretrial motion to exclude evidence that he “allegedly
admitted to supplying a gun that was used by one of the co-defendants in the attempted robbery
and shooting of members of the Satan’s Sidekicks Motorcycle Club on September 9, 2013.” DE
396, Jackson Mot. in limine, Page ID 1800. (This was the shooting of Leon McGee.) Jackson
argues that this evidence should have been excluded under Federal Rule of Evidence 404(b),
29
No. 15-1963/1963/1966/1998/2064/2065/2089, United States v. Nicholson, et al.
401, or 403. This court reviews a district court’s admissibility determinations for abuse of
discretion. United States v. Rios, 830 F.3d 403, 426 (6th Cir. 2016). The district court properly
denied Jackson’s motion.
First, Rule 404(b)’s prohibition on using other “crimes, wrongs, or acts” to prove a
Defendant’s character does not mandate exclusion here. Fed. R. Evid. 404(b). Jackson was
charged with conspiracy to commit murder in aid of racketeering in violation of 18 U.S.C.
§ 1959(a)(5). The existence of a racketeering enterprise and Jackson’s participation in that
enterprise are essential elements of this crime, and the Satan’s Sidekick shooting was one of the
primary events used at trial to demonstrate PMC’s racketeering activities. This incident is
therefore “intrinsic” to Jackson’s charge and conviction. See United States v. Marrero, 651 F.3d
453, 471 (6th Cir. 2011) (“Where the challenged evidence is ‘intrinsic’ to, or ‘inextricably
intertwined’ with evidence of, the crime charged, Rule 404(b) is not applicable.” (quoting United
States v. Henderson, 626 F.3d 326, 338 (6th Cir. 2010))); United States v. Hardy, 228 F.3d 745,
748 (6th Cir. 2000) (noting that “[p]roper background evidence” includes evidence that is “a
prelude to the charged offense [and] is directly probative of the charged offense.”). Thus, Rule
404(b) did not bar admission of this testimony. For the same reasons, this evidence is relevant
under Rule 401.
Even if probative, Jackson asserts the evidence should have been excluded as unfairly
prejudicial under Rule 403. The alleged unfair prejudice here is the jury’s exposure to “[g]un
violence involving rival motorcycle clubs.” DE 396, Jackson Mot. in limine, Page ID 1803.
This purported prejudice—discussion of motorcycle club violence—was, however, the subject of
defendants’ entire trial and served as the basis for Jackson’s murder conspiracy conviction. Any
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No. 15-1963/1963/1966/1998/2064/2065/2089, United States v. Nicholson, et al.
potential prejudice, therefore, does not substantially outweigh the probative value of this
evidence. The district court did not abuse its discretion in refusing to exclude this evidence.
VIII.
Schamante, Jackson, Brown, and Sorrell each challenge their respective sentences
imposed by the district court. This court reviews a district court’s factual findings at sentencing
for clear error and its application of the Sentencing Guidelines de novo. E.g., United States v.
Hazelwood, 398 F.3d 792, 795 (6th Cir. 2005). The ultimate sentence is reviewed for
reasonableness, using an abuse of discretion standard. E.g., Gall v. United States, 552 U.S. 38,
51 (2007); United States v. Young, 847 F.3d 328, 370 (6th Cir. 2017). Denial of a mitigating-
role reduction is reviewed for clear error. See United States v. Randolph, 794 F.3d 602, 616 (6th
Cir. 2015). The district court did not err in calculating or imposing any of these sentences.
A.
Schamante was convicted of RICO conspiracy and possession of an unregistered firearm
and sentenced to 102 months in prison. He now challenges two of the sentencing court’s factual
determinations.
Schamante first challenges the determination that he was involved in trafficking stolen
motorcycles and motorcycle parts across state lines. Schamante, however, raised this objection
at his sentencing, and in response the court specifically referenced testimony by another PMC
member that Schamante had sold stolen motorcycles. Schamante further argues that the court
erred in concluding that it was reasonably foreseeable that another Phantom would use a gun
Schamante provided to shoot two people in Columbus, Ohio. But there was ample evidence at
trial about Phantoms’ violent altercations with other clubs and their interstate travel to support
31
No. 15-1963/1963/1966/1998/2064/2065/2089, United States v. Nicholson, et al.
this factual finding. (Schamante’s PMC nickname is even “Arsenal.”) The district court did not
commit clear error in these factual determinations.
Schamante also argues that the court erred in imposing a sentence at the “top end” of the
sentencing guideline range. Because the imposed sentence is within the applicable Guidelines
range, it may be presumed reasonable. Gall, 552 U.S. at 51; United States v. Dunning, 857 F.3d
342, 350–51 (6th Cir. 2017). We apply this presumption of reasonableness and affirm the
sentence imposed by the district court.
B.
Jackson was sentenced to 93 months in prison for his conviction for conspiracy to
commit murder in aid of racketeering under 18 U.S.C. § 1959(a)(5). He now challenges this
sentence based on the application of U.S. Sentencing Guideline (“USSG”) § 2E1.3 and the
district court’s denial of the requested mitigating-role reduction. The district court applied the
correct base offense level and did not clearly err in applying a minor-participant reduction
instead of a minimal-participant reduction.
Jackson first alleges that the district court incorrectly calculated his base offense level as
33 and argues that it instead should have been 19 under the applicable sentencing guideline,
USSG § 2E1.3. The applicable guideline, USSG § 2E1.3 (Violent Crimes in Aid of
Racketeering Activity), instructs: “(a) Base Offense Level (Apply the greater): (1) 12; or (2) the
offense level applicable to the underlying crime or racketeering activity.” Application Note 1
explains that if the underlying conduct violates state law, as here, “the offense level
corresponding to the most analogous federal offense is to be used.” USSG § 2E1.3 cmt.1.
Jackson’s conviction for conspiracy to commit murder is most analogous to the federal offense
under 18 U.S.C. § 1117 (Conspiracy or Solicitation to Commit Murder), which appears in the
32
No. 15-1963/1963/1966/1998/2064/2065/2089, United States v. Nicholson, et al.
Sentencing Guidelines at USSG § 2A1.5. Therefore, § 2E1.3(a)(2) instructs the court to cross-
reference § 2A1.5—Conspiracy or Solicitation to Commit Murder—which has a base offense
level of 33. Thus, because § 2E1.3(a) instructs the court to “[a]pply the greater” of 12 or the
base offense level for the underlying crime, the court used 33 as Jackson’s base offense level.
Jackson contends instead that racketeering itself should have served as the “underlying
crime or racketeering activity” under § 2E1.3(a)(2). He argues that § 2E1.3(a)(2) allows the
court to calculate the alternative base offense level by looking to either “the underlying crime”
or to “racketeering activity.” Thus, because racketeering activity carries a base offense level of
19, he believes that 19 should have been used, or at the very least considered, as his base offense
level.
Jackson’s argument, however, is flawed for several reasons. First, his reading goes
against the plain language of the Guidelines instruction: to pick the greater between two options.
Second, the base offense level used in sentencing under this guideline is designed to vary in
reference to the seriousness of the violent crime undertaken in aid of racketeering, and
bifurcation of § 2E1.3(a)(2) would defeat the sliding-scale VICAR sentencing inquiry. Finally,
and perhaps most fatally, were we to accept Jackson’s argument and look to “racketeering
activity” itself as a source of the base offense level, it would not actually yield his desired result.
This is because the sentencing guideline for general racketeering activity instructs the court to
apply the greater of base offense level “(1) 19; or (2) the offense level applicable to the
underlying racketeering activity.” USSG § 2E1.1. Thus, even were we to look to § 2E1.1 for
§ 2E1.3(a)(2)’s “racketeering activity,” § 2E1.1(a)(2) would take us back to where we started—
§ 2A1.5 (Conspiracy or Solicitation to Commit Murder), carrying a base offense level of 33.
The district court did not err in sentencing Jackson subject to a base offense level of 33.
33
No. 15-1963/1963/1966/1998/2064/2065/2089, United States v. Nicholson, et al.
Jackson also claims that he should have been given a four-level “minimal participant”
reduction pursuant to USSG § 3B1.2(a) instead of the two-level “minor participant” reduction
granted by the district court under § 3B1.2(b). A minimal-participant reduction is meant to cover
defendants “who are plainly among the least culpable of those involved in the conduct of a
group.” USSG § 3B1.2 cmt.4. A minor participant, in contrast, is one “who is less culpable than
most other participants in the criminal activity, but whose role could not be described as
minimal.” Id. at cmt.5.
The district court did not commit clear error in finding that Jackson was a minor
participant instead of a minimal participant. Jackson, though not a ringleader in the Hell Lover
murder conspiracy, played more than a minimal role—there was evidence at trial and sentencing
showing that Jackson actively participated, including by sharing information about targets with
others in the conspiracy. Further, application of a mitigating-role reduction and the correct level
thereof is a fact-based determination that requires careful balancing and allows the sentencing
court to exercise discretion. See United States v. Salas, 455 F.3d 637, 643 (6th Cir. 2006)
(“Simply because the court could have applied a minor role adjustment under the facts of this
case . . . does not mean that the district court was required to apply the adjustment.” (quoting
United States v. Garcia-Morones, 49 F. App’x 556, 558 (6th Cir. 2002))). The sentencing court
presided over the trial where the relevant evidence was produced, and it sufficiently probed
Jackson’s involvement in the conspiracy in selecting the minimal-participant reduction.
Finally, Jackson asserts that the district court erred in refusing to apply a three-level
reduction to his offense level under USSG § 2X1.1. The district court correctly held that
§ 2X1.1 does not apply in this case, as § 2X1.1(b) only applies when an attempt, solicitation, or
conspiracy is not “expressly covered” by another offense guideline section. USSG § 2X1.1(c).
34
No. 15-1963/1963/1966/1998/2064/2065/2089, United States v. Nicholson, et al.
Because Jackson’s conspiracy conviction is covered by the specific “Conspiracy or Solicitation
to Commit Murder” sentencing guidelines in USSG § 2A1.5, § 2X1.1 is expressly inapplicable.
See also United States v. James, 575 F. App’x 588, 592 (6th Cir. 2014).
C.
Brown was sentenced to 100 months in prison for his conviction for conspiracy to
commit murder in aid of racketeering under 18 U.S.C. § 1959(a)(5). Brown first raises the same
argument put forward by Jackson regarding the calculation of his base offense level under
§ 2E1.3(a)(2), and this argument is meritless for the same reasons.
Brown next asserts that he should have been granted a mitigating-role reduction due to
the small extent of his participation in the conspiracy.13 We do not believe that the district court
clearly erred in not applying this reduction, because facts on the record support that Brown was
actively involved in the conspiracy to murder Hell Lovers. Further, although the sentencing
court did not vary Brown’s base offense level, it “varied down from the 120-month guideline
range” and imposed a 100-month sentence applying the factors in 18 U.S.C. § 3553(a) because it
concluded that Brown’s involvement “was not minimal but was involved but not at a leadership
position.” DE 666, Brown Sentencing Tr., Page ID 8932. This demonstrates that, although his
base offense level was not reduced, the court actively and adequately considered Brown’s level
of involvement in the conspiracy when imposing the sentence. We affirm his sentence.
13
The government contends that Brown’s mitigating-role-reduction argument should be reviewed for plain
error only, as it was not raised below. See United States v. Ells, 687 F. App’x 485, 486 (6th Cir. 2017) (mem);
United States v. Ellerbee, 73 F.3d 105, 108 (6th Cir. 1996). Brown’s attorney, however, referenced mitigation at the
sentencing hearing, stating: “I know there’s different levels of participation and different things. . . . But looking at
the totality of the circumstances, I think Mr. Brown’s role is very minimal in that plot.” DE 666, Brown Sentencing
Tr., Page ID 8926. Mitigation was also raised in Brown’s sentencing memorandum, which stated: “Mr. Brown’s
role in the PMC is a basis for a variance based upon [his] minor/minimal role[ ]. These factors should warrant a
departure or variance from the applicable statutory maximum . . . .” DE 596, Brown Sentencing Mem., Page ID
7387. Therefore, we review the district court for clear, not plain, error.
35
No. 15-1963/1963/1966/1998/2064/2065/2089, United States v. Nicholson, et al.
D.
Sorrell was sentenced to a total term of 252 months for his convictions on five counts.
He claims that the district court improperly calculated his base offense level and challenges the
application of a 10-year mandatory minimum based on his conviction under 18 U.S.C.
§ 924(c)(2).
Sorrell’s argument that his sentence was “improperly scored” is the same one raised by
Jackson and Brown as to USSG § 2E1.3(a)(2) and is rejected for the same reasons. His
argument related to the mandatory minimum is equally without merit. Sorrell was sentenced to a
10-year mandatory minimum pursuant to his 18 U.S.C. § 924(c) conviction. Sorrell originally
argued that this mandatory sentence only applies to individuals who have committed prior crimes
of violence in a seemingly mistaken reference to 18 U.S.C. § 924(e). Sorrell, however, was
convicted of and sentenced under § 924(c)(1)(A), which provides for a 10-year minimum when a
firearm is discharged during a crime of violence. In its verdict, the jury specifically found that
the firearm was discharged, and at sentencing Sorrell’s counsel acknowledged that the 10-year
minimum was applicable to this conviction. Additionally, in his reply brief, Sorrell
acknowledged that the 10-year minimum was correctly applied. Application of the mandatory
minimum was not error, and we affirm his sentence.
IX.
Accordingly, the defendants’ convictions and sentences are affirmed.
36