UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 17-4718
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEVIN BROWN, a/k/a Deno Badazz,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at Charleston. Richard Mark Gergel, District Judge. (2:16-cr-00123-RMG-5)
Submitted: July 26, 2018 Decided: August 7, 2018
Before GREGORY, Chief Judge, and DIAZ and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis H. Lang, CALLISON TIGHE & ROBINSON, LLC, Columbia, South Carolina, for Appellant. Beth Drake, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina; John P. Cronan, Acting Assistant Attorney General, Matthew S. Miner, Deputy Assistant Attorney General, Leshia Lee-Dixon, Thomas E. Booth, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Devin Brown appeals his convictions for attempted murder in aid of racketeering
activity in violation of 18 U.S.C. §§ 1959(a)(5), 2 (2012), and using, carrying, and
discharging a firearm during and in relation to a crime of violence in violation of 18
U.S.C. §§ 924(c), 2 (2012). Brown contends that his convictions are not supported by
substantial evidence. We affirm.
We review de novo a district court’s denial of a motion for acquittal based on a
challenge to the sufficiency of the evidence. United States v. Palomino-Coronado, 805
F.3d 127, 130 (4th Cir. 2015). In resolving a sufficiency-of-the-evidence claim, we must
sustain the jury’s verdict “if it is supported by substantial evidence, viewed in the light
most favorable to the government. Substantial evidence is evidence that a reasonable
finder of fact could accept as adequate and sufficient to support a conclusion of a
defendant’s guilt beyond a reasonable doubt.” Id. (citation and internal quotation marks
omitted).
Under 18 U.S.C. § 1959(a)(5), “[w]hoever, . . . for the purpose of . . . maintaining
or increasing position in an enterprise engaged in racketeering activity” attempts to
murder any “individual in violation of the laws of any State or the United States” shall be
punished by imprisonment for not more than 10 years.
To establish a § 1959 claim, the government must prove beyond a reasonable doubt, (1) that the organization was a RICO 1 enterprise, (2) that
1 Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968 (2012).
2 the enterprise was engaged in racketeering activity as defined in RICO, (3) that the defendant in question had a position in the enterprise, (4) that the defendant committed the alleged crime of violence, and (5) that his general purpose in so doing was to maintain or increase his position in the enterprise.
United States v. Fiel, 35 F.3d 997, 1003 (4th Cir. 1994). Brown contends that the
evidence at trial was insufficient to establish that he had a position in a RICO enterprise
that was engaged in racketeering activity, and that he committed attempted murder to
maintain or increase his position in the enterprise.
As defined in § 1959, “enterprise includes any partnership, corporation,
association, or other legal entity, and any union or group of individuals associated in fact
although not a legal entity, which is engaged in, or the activities of which affect,
interstate or foreign commerce.” 18 U.S.C. § 1959(b)(2); see 18 U.S.C. § 1961(4) (2012).
A RICO enterprise is a group of persons associated together for a common purpose of engaging in a course of conduct. It includes not only legal entities but also any union or group of individuals associated in fact. Nevertheless, an association-in-fact enterprise must have at least 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
United States v. Pinson, 860 F.3d 152, 161 (4th Cir. 2017) (citations and internal
quotation marks omitted). “Racketeering activity” includes “any act or threat involving
murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene
matter, or dealing in a controlled substance or listed chemical . . . , which is chargeable
under State law and punishable by imprisonment for more than one year.” 18 U.S.C.
§§ 1959(b)(1), 1961(1) (2012).
3 Brown does not dispute on appeal that there was sufficient evidence at trial to
establish that he committed attempted murder under South Carolina law as alleged in the
indictment. 2 It was undisputed at trial that Brown was a member of a group called the
Wild Boys based in the Green Pond area of South Carolina, and that the members had
long-term relationships. Brown testified at trial that the Wild Boys were a record label
and rap group. However, several law enforcement officers testified that, based on their
investigations and experience, the Wild Boys were a street gang that, in addition to
producing rap videos, engaged in numerous violent acts and other criminal activities.
These witnesses discussed the hand signs, gang colors, and tattoos the Wild Boys used to
identify themselves, as well as the structure of the group. The Government also
introduced numerous Facebook posts and YouTube videos in which members of the Wild
Boys used hand signs, wore gang colors, and displayed firearms. This evidence was
sufficient to allow the jury to find that the Wild Boys were a RICO enterprise.
The evidence was also sufficient to establish that the Wild Boys engaged in
racketeering acts—specifically, a 2012 gas station robbery and the 2015 shooting of a
woman whose sons were associated with a rival gang. Brown does not dispute that these
crimes constitute racketeering activity, and contrary to Brown’s argument, the
Government presented enough testimony and circumstantial evidence to establish that the
Wild Boys committed the crimes.
2 The evidence at trial tended to show that the charged predicate act of attempted murder was a drive-by shooting of a house associated with a rival gang.
4 Brown further asserts that the Government did not prove that he committed the
attempted murder in order to maintain or increase his position within the Wild Boys. The
Government presented evidence that several weeks before the shooting, Brown and
Joshua Manigault, another member of the Wild Boys, got into a dispute on Facebook
with Kobla Sanders, one of the men who was present at the shooting. Sanders testified
that Brown and Manigault were angry about a comment Sanders made on a post made by
Manigault’s girlfriend, and the subsequent exchange of words on Facebook included
references to Brown and Manigault “com[ing] to [Sanders’] neighborhood” and “dealing”
with him.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 17-4718
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEVIN BROWN, a/k/a Deno Badazz,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at Charleston. Richard Mark Gergel, District Judge. (2:16-cr-00123-RMG-5)
Submitted: July 26, 2018 Decided: August 7, 2018
Before GREGORY, Chief Judge, and DIAZ and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis H. Lang, CALLISON TIGHE & ROBINSON, LLC, Columbia, South Carolina, for Appellant. Beth Drake, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina; John P. Cronan, Acting Assistant Attorney General, Matthew S. Miner, Deputy Assistant Attorney General, Leshia Lee-Dixon, Thomas E. Booth, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Devin Brown appeals his convictions for attempted murder in aid of racketeering
activity in violation of 18 U.S.C. §§ 1959(a)(5), 2 (2012), and using, carrying, and
discharging a firearm during and in relation to a crime of violence in violation of 18
U.S.C. §§ 924(c), 2 (2012). Brown contends that his convictions are not supported by
substantial evidence. We affirm.
We review de novo a district court’s denial of a motion for acquittal based on a
challenge to the sufficiency of the evidence. United States v. Palomino-Coronado, 805
F.3d 127, 130 (4th Cir. 2015). In resolving a sufficiency-of-the-evidence claim, we must
sustain the jury’s verdict “if it is supported by substantial evidence, viewed in the light
most favorable to the government. Substantial evidence is evidence that a reasonable
finder of fact could accept as adequate and sufficient to support a conclusion of a
defendant’s guilt beyond a reasonable doubt.” Id. (citation and internal quotation marks
omitted).
Under 18 U.S.C. § 1959(a)(5), “[w]hoever, . . . for the purpose of . . . maintaining
or increasing position in an enterprise engaged in racketeering activity” attempts to
murder any “individual in violation of the laws of any State or the United States” shall be
punished by imprisonment for not more than 10 years.
To establish a § 1959 claim, the government must prove beyond a reasonable doubt, (1) that the organization was a RICO 1 enterprise, (2) that
1 Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968 (2012).
2 the enterprise was engaged in racketeering activity as defined in RICO, (3) that the defendant in question had a position in the enterprise, (4) that the defendant committed the alleged crime of violence, and (5) that his general purpose in so doing was to maintain or increase his position in the enterprise.
United States v. Fiel, 35 F.3d 997, 1003 (4th Cir. 1994). Brown contends that the
evidence at trial was insufficient to establish that he had a position in a RICO enterprise
that was engaged in racketeering activity, and that he committed attempted murder to
maintain or increase his position in the enterprise.
As defined in § 1959, “enterprise includes any partnership, corporation,
association, or other legal entity, and any union or group of individuals associated in fact
although not a legal entity, which is engaged in, or the activities of which affect,
interstate or foreign commerce.” 18 U.S.C. § 1959(b)(2); see 18 U.S.C. § 1961(4) (2012).
A RICO enterprise is a group of persons associated together for a common purpose of engaging in a course of conduct. It includes not only legal entities but also any union or group of individuals associated in fact. Nevertheless, an association-in-fact enterprise must have at least 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
United States v. Pinson, 860 F.3d 152, 161 (4th Cir. 2017) (citations and internal
quotation marks omitted). “Racketeering activity” includes “any act or threat involving
murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene
matter, or dealing in a controlled substance or listed chemical . . . , which is chargeable
under State law and punishable by imprisonment for more than one year.” 18 U.S.C.
§§ 1959(b)(1), 1961(1) (2012).
3 Brown does not dispute on appeal that there was sufficient evidence at trial to
establish that he committed attempted murder under South Carolina law as alleged in the
indictment. 2 It was undisputed at trial that Brown was a member of a group called the
Wild Boys based in the Green Pond area of South Carolina, and that the members had
long-term relationships. Brown testified at trial that the Wild Boys were a record label
and rap group. However, several law enforcement officers testified that, based on their
investigations and experience, the Wild Boys were a street gang that, in addition to
producing rap videos, engaged in numerous violent acts and other criminal activities.
These witnesses discussed the hand signs, gang colors, and tattoos the Wild Boys used to
identify themselves, as well as the structure of the group. The Government also
introduced numerous Facebook posts and YouTube videos in which members of the Wild
Boys used hand signs, wore gang colors, and displayed firearms. This evidence was
sufficient to allow the jury to find that the Wild Boys were a RICO enterprise.
The evidence was also sufficient to establish that the Wild Boys engaged in
racketeering acts—specifically, a 2012 gas station robbery and the 2015 shooting of a
woman whose sons were associated with a rival gang. Brown does not dispute that these
crimes constitute racketeering activity, and contrary to Brown’s argument, the
Government presented enough testimony and circumstantial evidence to establish that the
Wild Boys committed the crimes.
2 The evidence at trial tended to show that the charged predicate act of attempted murder was a drive-by shooting of a house associated with a rival gang.
4 Brown further asserts that the Government did not prove that he committed the
attempted murder in order to maintain or increase his position within the Wild Boys. The
Government presented evidence that several weeks before the shooting, Brown and
Joshua Manigault, another member of the Wild Boys, got into a dispute on Facebook
with Kobla Sanders, one of the men who was present at the shooting. Sanders testified
that Brown and Manigault were angry about a comment Sanders made on a post made by
Manigault’s girlfriend, and the subsequent exchange of words on Facebook included
references to Brown and Manigault “com[ing] to [Sanders’] neighborhood” and “dealing”
with him. This testimony, taken together with the other evidence regarding the
importance to the Wild Boys of responding to disrespect shown to its members, entitled
the jury to conclude that Brown committed attempted murder to maintain or increase his
position within the Wild Boys.
Because the jury’s verdict is supported by substantial evidence, we affirm the
district court’s judgment. 3 We dispense with oral argument because the facts and legal
3 Brown also contends that if his conviction under § 1959(a)(5) is invalid, his § 924(c) conviction is also invalid. Because Brown’s § 1959(a)(5) conviction is valid, this argument fails. Further, we conclude that Brown waived the argument that 18 U.S.C. § 924(c)(3)(B) (2012) is unconstitutional by failing to raise it in his opening brief. See Grayson O Co. v. Agadir Int’l LLC, 856 F.3d 307, 316 (4th Cir. 2017) (“A party waives an argument by failing to present it in its opening brief or by failing to develop its argument—even if its brief takes a passing shot at the issue.” (brackets and internal quotation marks omitted)).
5 contentions are adequately presented in the materials before this court and argument
would not aid the decisional process.
AFFIRMED