United States v. Tondwin Lewis

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 25, 2022
• Docket: 19-6148
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 22a0044n.06

Nos. 19-6148/6186/6253/6254/6352

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED UNITED STATES OF AMERICA, ) Jan 25, 2022 ) DEBORAH S. HUNT, Clerk Plaintiff-Appellee, ) ) v. ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR TONDWIN LEWIS (19-6148); NERNEST ) THE WESTERN DISTRICT OF NESBY (19-6186); DAVANTE TURNER ) TENNESSEE (19-6253); MARKEASE ALEXANDER ) (19-6254); ARIQ RAYFORD (19-6352), ) OPINION ) Defendants-Appellants. ) )

Before:ROGERS, STRANCH, and DONALD, Circuit Judges.

JANE B. STRANCH, Circuit Judge. Tondwin Lewis, Nernest Nesby, Davante Turner,

Markease Alexander, and Ariq Rayford (Defendants) were members of an organization called the

Conservative Vice Lords, and its Memphis-based subgroup, the Concrete Cartel. After a fifteen-

day jury trial, they were each convicted of conspiracy under the Racketeer Influenced and Corrupt

Organizations Act (RICO) and of various other offenses related to armed robberies and drug

trafficking. On appeal, each raises challenges to his conviction and/or sentence. We AFFIRM

the district court’s judgments.

I. BACKGROUND

Lewis, Nesby, Turner, Alexander, and Rayford all lived in and around Memphis,

Tennessee and were part of the “Conservative Vice Lords” (CVL), a national organization. The Nos. 19-6148/6186/6253/6352, United States v. Lewis, et al.

members of the CVL in the Memphis area considered themselves a subgroup within CVL called

the “Concrete Cartel.” The Defendants contended that the Concrete Cartel promoted the

betterment of the members and the community in general. They do not dispute the general

hierarchy, method of communication, and customs of the organization. References to the

organization herein will include both the CVL and the Concrete Cartel unless otherwise specified.

Members of the Concrete Cartel held various positions with different responsibilities and

distinguished themselves based on rank and status. In general, members could increase their rank

by acquiring “stars,” and could gain special, nationwide notoriety through “Universal Elite” status.

Lewis, Nesby, Turner, Alexander, and Rayford were all “ranking members” of the CVL on various

levels. Turner held the highest rank and was a five-star “Minister of Command” at the state level

and a Universal Elite; Lewis was a three-star Universal Elite at the city-level; Alexander was a

three-star “Chief of Security” at the city level and a Universal Elite; Rayford was a three-star Chief

of Security at the city level; and Nesby was a three-star Chief of Security at the local level.

Members of the Concrete Cartel are expected to learn and abide by an established set of

rules. They attend weekly meetings, are restricted from eating certain foods, communicate via a

complex system of numbers and codes, act secretly, have various greetings, and have special

handshakes and oaths. When a member breaks a rule, he or she is punished.

The Government contends, and various former members of the group testified at trial, that

the overarching purpose of the Concrete Cartel is “to earn money for its members, principally

through drug trafficking and robberies.” To show this purpose, the Government called former

members who testified that members routinely robbed pharmacies and then sold the stolen

prescription drugs for profits. In addition, the record showed that members who stole drugs were

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expected to sell drugs to other members at a discounted price, allowing those members to share in

the profits from the robberies.

A. Indictment and Offenses

On May 31, 2018, Lewis, Nesby, Turner, Alexander, and Rayford were each indicted on

one count of Racketeering Conspiracy and additional counts related to their participation in armed

robberies and drug trafficking. As to the armed robberies and drug trafficking charges, various

counts were brought against Defendants related to seven robberies, which occurred on the

following dates: June 18, 2015 (Counts 2–6 against Turner); February 15, 2016 (Counts 7–9

against Rayford); April 30, 2016 (Counts 10–13 against Nesby); May 1, 2016 (Counts 14–18

against Nesby); July 22, 2016 (Counts 19–23 against Alexander); November 1, 2016 (Counts 24–

31 against Alexander, Turner, and Lewis); and July 5, 2017 (Counts 32–34 against Turner and

Lewis). Defendants pleaded not guilty to all counts brought against them.

On July 13, 2018, and on June 3, 2019, the Government moved to dismiss Counts 24–31

against Lewis and Turner, respectively. The district court granted those motions on July 17, 2018,

and June 3, 2019.

B. Jury Trial and Sentencing

On June 3, 2019, a jury trial began, which spanned fifteen days. All five co-Defendants

were tried in tandem. On June 24, 2019, the jury returned its verdict finding Lewis, Turner, Nesby,

Alexander, and Rayford guilty on all counts charged, except for Counts 2–6 against Turner.

Thereafter, they were each individually sentenced to various terms of incarceration.

II. ANALYSIS

On appeal, Lewis, Nesby, Turner, Alexander, and Rayford raise challenges to: the

sufficiency of evidence as to the RICO conspiracy convictions and their robbery convictions;

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constitutional and evidentiary errors regarding the trial; and, their individual convictions and

sentences. We address these matters in turn.

A. Sufficiency of the Evidence Challenges to Jury Verdict

Lewis, Turner, Nesby, Alexander, and Rayford all raise sufficiency of the evidence

challenges to their RICO conspiracy convictions. Alexander and Turner separately raise

challenges related to the robberies in which they were implicated.1

1. Standard of Review

The standard of review for sufficiency of evidence challenges varies depending on whether

a defendant’s argument was properly preserved before the district court. See, e.g., United States

v. Kuehne, 547 F.3d 667, 696–97 (6th Cir. 2008). Where a claim was properly preserved—the

defendant made a motion pursuant to Federal Rule of Criminal Procedure 29 (Rule 29 motion)

both at the end of the prosecution’s case-in-chief and at the close of evidence—the sufficiency of

evidence claim is reviewed de novo. Under the de novo standard, the evidence is viewed in the

light most favorable to the jury’s verdict and the critical question is whether “any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt.” United

States v. Fisher, 648 F.3d 442, 450 (6th Cir. 2011) (quoting Jackson v. Virginia, 443 U.S. 307,

319 (1979)) (emphasis in original). A defendant bears a heavy burden and circumstantial evidence

alone, if substantial and competent, may sustain a conviction. See United States v. Tarwater,

308 F.3d 494, 504 (6th Cir. 2002) (citing United States v. Humphrey, 279 F.3d 372, 378 (6th Cir.

1 In his briefing, Lewis also raises a sufficiency of the evidence challenge to his Hobbs Act Robbery conviction, contending that he was “incapable of forming the intent to commit the crime” because he was intoxicated. At oral argument, held on October 26, 2021, counsel for Lewis confirmed that the issue was being waived. Accordingly, the court will not reach the merits of that issue.

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2002)). Because Turner and Nesby properly renewed their motions at the close of all evidence,

their sufficiency of the evidence claims are reviewed de novo.

Not all of the Defendants renewed their Rule 29 motion at the close of evidence. Where a

defendant fails to renew his or her Rule 29 motion after the close of evidence, that defendant’s

sufficiency of evidence challenges are reviewed under a “manifest miscarriage of justice” standard.

See Kuehne, 547 F.3d at 697. Under this standard, a conviction is reversed only “if the record is

‘devoid of evidence pointing to guilt.’” United States v. Carnes, 309 F.3d 950, 956 (6th Cir. 2002)

(quoting United States v. Abdullah, 162 F.3d 897, 903 (6th Cir. 1998)). Alexander and Rayford

initially raised “general” motions under Rule 29. And Lewis raised specific grounds for his Rule

29 motion pertaining to his RICO conspiracy conviction.2 But they did not renew their motions

after the close of evidence. Thus, the manifest miscarriage of justice standard applies to Lewis’s,

Alexander’s, and Rayford’s sufficiency of the evidence challenges.

2. RICO Conspiracy

A defendant violates RICO if he “conduct[s] or participate[s], directly or indirectly, in the

conduct of [an] enterprise’s affairs through a pattern of racketeering activity,” or conspires to do

so. 18 U.S.C. § 1962(c)–(d). Defendants are charged with a RICO conspiracy, and thus, the

Government must “prove four elements: agreement, to conduct or participate, in an enterprise,

through a pattern of racketeering activity.” United States v. Gills, 702 F. App’x 367, 373 (6th Cir.

2017) (citing Salinas v. United States, 522 U.S. 52, 62–63 (1997)).

2 Lewis raised specific grounds for his Rule 29 motion, all of which pertained to his RICO conspiracy conviction. Ordinarily, this waives all grounds not specified. United States v. Porter, 886 F.3d 562, 556 (6th Cir. 2018). However, the only remaining challenges he raises involve the RICO conspiracy conviction, which have not been waived and are therefore subject to review.

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Lewis, Turner, Nesby, Alexander, and Rayford raise various attacks on the sufficiency of

evidence that supports their RICO conspiracy convictions. Because Turner and Nesby, whose

sufficiency of the evidence claims are reviewed de novo, raise some of the same arguments as

Lewis, Alexander, and Rayford, we review those overlapping claims de novo, noting that a failure

to surmount this standard of review also constitutes a failure to show a manifest miscarriage of

justice.

a. Enterprise

Lewis, Alexander, Rayford, and Nesby contend that the Government provided insufficient

evidence to establish the existence of an “enterprise.”

A RICO enterprise includes “any union or group of individuals associated in fact.”

18 U.S.C. § 1961(4). This definition is broad in scope. A group qualifies under the statute if it

has “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). Even informal organizations may meet the statutory definition: groups need not

possess a “hierarchical structure or a chain of command”; “decisions may be made on an ad hoc

basis and by any number of methods”; members “need not have fixed roles”; and “[t]he group

need not even have a name, regular meetings, dues, established rules and regulations, disciplinary

procedures, or induction or initiation ceremonies.” Id. at 948.

In this case, multiple prosecution witnesses testified that the Concrete Cartel is an existing

enterprise under Boyle. According to one former member, Clemeko Starks, the purpose of the

group was to facilitate making profits by robberies and drug sales. Another former member,

Darnell Jordan, joined for protection to increase profits and better notoriety in the Memphis

community. Former members further testified that the members of the group advanced its purpose

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by robbing pharmacies and then selling the drugs to others for profit or to members at a discount.

The members of the enterprise “protected” each other by providing access to guns, delivering

additional support to execute successful robberies through the enterprise’s network of affiliated

people, and affording protection from people who robbed drug dealers. Finally, there was a clear

relationship among the members of the group through the various meetings and customs which the

membership followed for a period of several years. This evidence was sufficient to allow a rational

jury to conclude that the Concrete Cartel was a RICO enterprise within the definition of Boyle.

556 U.S. at 946.

Defendants have several responses. They argue that the organization was benign because

it did not explicitly sanction crimes at its meetings and as a result, any crimes were sanctioned on

an individual level—often on the spur of the moment—not by the Concrete Cartel organization.

They contend that none of the profits or stolen drugs went directly to the organization’s

membership but that they were distributed among those who committed the robbery. While

Defendants provide alternative, benign explanations to make sense of the circumstances, several

witnesses testified that they joined the group for the explicit purpose of advancing their drug sale

profits. Concrete Cartel members supported each other, shared weapons with each other, stole

drugs together, and redistributed the stolen drugs together for the benefit of the individual

constituents of the group. This coordination shows that the Concrete Cartel was a RICO enterprise,

regardless of whether the robberies occurred on an ad hoc basis by some members or whether the

perpetrators of the robberies shared the profits with the centralized, named organizations. See,

e.g., Gills, 702 F. App’x at 374; United States v. Kamahele, 748 F.3d 984, 1004 (10th Cir. 2014).

It follows that there was sufficient proof for a reasonable jury to conclude (as the jury did here)

that the organization constituted a RICO enterprise.

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Rayford, whose claim is reviewed under the manifest miscarriage of justice standard,

separately argues that because the Government failed to prove every attribute alleged in the

indictment regarding the group’s structure and activities, it failed to prove a RICO enterprise. But

even assuming Rayford is correct that certain allegations of the indictment were not fully proven,

“[a] part of the indictment unnecessary to and independent of the allegations of the offense proved

may normally be treated as ‘a useless averment’ that ‘may be ignored.’” United States v.

Weinstock, 153 F.3d 272, 279 (6th Cir. 1998) (quoting United States v. Miller, 471 U.S. 130, 136

(1985)). Rayford has offered no explanation as to how any variances between the Government’s

conspiracy indictment and the evidence adduced at trial—which ultimately led the jury to convict

Defendants on the RICO conspiracy charge—materially differed. See United States v. Martinez,

981 F.2d 867, 872 (6th Cir. 1992) (“A variance occurs when the evidence offered at trial differs

materially from the charge in the indictment.”). In any case, Rayford was indicted for a RICO

conspiracy, the jury heard evidence from several prior members of the organization regarding its

purpose, internal relationships, and longevity, and the jury ultimately concluded that the elements

of the conspiracy—including whether an enterprise within the meaning of a RICO conspiracy

existed—were proven beyond a reasonable doubt. Thus, the evidence presented at trial led the

jury to reach the very conclusion charged in the indictment: that the Concrete Cartel satisfied the

definition of a RICO enterprise.

Rayford fails to carry his burden to demonstrate that the record was devoid of any evidence

that would allow the jury to conclude that the Concrete Cartel was a RICO enterprise.

b. Pattern of Racketeering

Lewis and Turner both contend that their RICO conspiracy convictions cannot be sustained

because the Government failed to establish a “pattern of racketeering activity.” Specifically, they

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both assert that they could not be convicted of a RICO conspiracy, where they were involved in

only one predicate scheme.

Under a substantive RICO charge, a “pattern of racketeering activity” requires “at least

two” predicate acts. 18 U.S.C. § 1961(5). However, “[u]nlike a substantive RICO charge, a RICO

conspiracy charge does not require proof that the defendant committed any predicate acts.” United

States v. Fowler, 535 F.3d 408, 421 (6th Cir. 2008) (emphasis added). Rather, it requires only

proof that the defendant “intend[ed] to further an endeavor which, if completed, would satisfy all

of the elements of a substantive [RICO] offense, [and] it suffices that he adopt the goal of

furthering or facilitating the criminal endeavor.” Salinas, 522 U.S. at 65. When a defendant does

commit predicate acts implicated in a substantive RICO offense, those acts are sufficient proof

that he agreed to commit them to sustain a RICO conspiracy conviction. See United States v.

Lawson, 535 F.3d 434, 445 (6th Cir. 2008).

Lewis and Turner were convicted of several predicate acts. Both were convicted of Hobbs

Act robbery (Count 32), brandishing and discharging a firearm in relation to a crime of violence

(Count 33), and attempt to knowingly and intentionally possess with the intent to distribute

Oxycodone (Count 34). And these acts were connected to the enterprise as they were within the

scope of the RICO enterprise charged in the case and furthered that enterprise. Thus, a rational

jury could find that Lewis and Turner committed—and thus agreed to commit—sufficient

predicate offenses that furthered the criminal endeavor.

Lewis additionally argues that because the counts involving the robbery, brandishing and

discharging of a firearm, and attempt to knowingly and intentionally possess Oxycodone with the

intent to distribute, all concerned “one robbery,” those counts collectively amount to only one

predicate act. As noted above, though, one predicate act is sufficient to sustain a RICO conspiracy

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conviction, and each offense constitutes a separate predicate act, even though they were related by

the single robbery. See, e.g., Lawson, 535 F.3d at 444. In Lawson, we held that even though the

two drug distribution charges were related to the broader charge of conspiracy to distribute

controlled substances among the entire enterprise, the three offenses constituted separate predicate

acts for RICO purposes. Id. “All that is now required for a RICO offense is the commission of

two predicate offenses which the state defines as separately chargeable and separately punishable.”

United States v. Licavoli, 725 F.2d 1040, 1053 (6th Cir. 1984) (Merritt, J., concurring).

Both Lewis and Turner were charged with three separate offenses, each of which was

separately punishable. Their argument that they were convicted of only one predicate act,

therefore, fails as a matter of law. In any case, their convictions for the separate predicate offenses

support the jury’s conclusion that Turner and Lewis engaged in a pattern of racketeering activity

that supports a RICO conspiracy conviction.

c. Connection Between Predicate Acts and RICO Enterprise

Nesby, Rayford, and Turner next contend that there is insufficient proof that their

racketeering acts were connected to the illegal enterprise. In so contending, they take issue with

the relationship prong of the “relationship plus continuity” test employed under the RICO statute.

See United States v. Corrado, 227 F.3d 543, 554 (6th Cir. 2000) (quoting Sedima v. Imrex Co.,

473 U.S. 479, 496 n.14 (1985)).

Under the relationship prong, “[t]he business of a criminal enterprise is crime [and its]

crimes form a pattern defined by the purposes of the enterprise.” Id. (quoting United States v.

Masters, 924 F.2d 1362, 1366 (7th Cir. 1991)) (alterations in original). By this definition,

predicate acts can be linked to the enterprise by evidence that “(1) the defendant was enabled to

commit the offense solely by virtue of his position in the enterprise; or (2) the offense was related

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to the activities of the enterprise.” Id. (quoting United States v. Locascio, 6 F.3d 924, 943 (2d Cir.

1993)) (emphasis added).

As discussed above, the Concrete Cartel’s purpose was to facilitate drug dealing, protect

its affiliates, and make higher profits from drug sales. The Government presented evidence that

Nesby, Rayford, and Turner robbed various pharmacies and stores for drugs in the presence of

others affiliated with the Concrete Cartel. Former members of the Concrete Cartel testified that

the members would routinely rob pharmacies and redistribute the proceeds from the robberies

among themselves or other affiliated members. From this evidence, a rational jury could

reasonably infer that Nesby, Rayford, and Turner’s robberies and drug trafficking activities were

an extension of the Concrete Cartel’s activities. Thus, Nesby, Rayford, and Turner fail to satisfy

their burden to show that any rational trier of fact would not have found a connection between

their acts and the RICO enterprise. See Fisher, 648 F.3d at 450.

3. Robbery-Related Convictions

Alexander and Turner each challenge the sufficiency of the evidence concerning the

convictions which resulted from their robberies.

a. July 22, 2016, Robbery (Alexander)

Alexander’s convictions were for a robbery on July 22, 2016, during which he and his

accomplices entered a CVS pharmacy wearing masks and ordered everyone to get down. One of

the men located the pharmacist, forced the pharmacist to turn over the pharmacy’s opioids, and

then left with over 5,000 pills, worth more than $32,000. Alexander was not apprehended directly

following the robbery.

At trial, the Government sought to prove Alexander’s involvement in the crime through

several pieces of circumstantial evidence. First, the Government provided cell phone location data

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showing that Alexander’s cell phone traveled to the CVS, was present at the time of the robbery,

and then traveled away from the area afterward. Second, the Government provided evidence from

a security camera of a resident who lived across the street from the CVS showing that Alexander’s

car was near CVS at the time of the robbery. Jodeci Hill, a prosecution witness and Alexander’s

longtime girlfriend, identified that car as Alexander’s car. Third, a CVS employee who fled the

robbery testified that he noticed that one of the robbers was wearing a unique pair of sneakers.

When shown a picture of the shoes that Alexander wore, the CVS employee identified them as

being nearly identical to the shoes he saw at the robbery. Fourth, Hill testified that Alexander told

her that he committed the robbery on July 22, 2016. And finally, a fellow member of the Concrete

Cartel and prosecution witness, LaShawn Shannon, testified that Alexander was in possession of

the pills after the July 2016 robbery, and that when Alexander referred to a “pill situation” during

a jail-cell call, he understood that Alexander was referring to the July 2016 robbery.

Alexander claims that the evidence at trial discussed above was insufficient to establish

that he was one of the perpetrators of the robbery. In support of his claim, he makes three factual

points. First, Hill testified at trial that the only pills Alexander had after the robbery were Xanax,

a type of pill that was not stolen in the July 2016 robbery. Second, the shoes identified are “hardly

a unique sighting akin to a unicorn in American society.” And finally, Hill’s memory was not

clear and thus “it is entirely plausible that Ms. Hill was confused as to ‘which’ robbery he was

discussing.”

As noted, because Alexander did not renew his Rule 29 motion at the close of all evidence,

his claim is reviewed for manifest miscarriage of justice, i.e., whether the record is devoid of any

evidence pointing to his guilt. Even excluding the evidence with which Alexander takes issue, the

record on the whole contains other inculpatory evidence—including that his car and cell phone

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were present at that CVS at the time of the robbery—sufficient to allow the jury to conclude that

Alexander was one of the perpetrators of the July 2016 robbery. In short, the record was not devoid

of any evidence that would allow the jury to conclude that Alexander was a perpetrator in the

robbery. That Alexander can point to other, plausible explanations regarding some of the evidence

does not satisfy his burden. See, e.g., United States v. Romero, 57 F.3d 565, 570 (7th Cir. 1995)

(“Alternative explanations alone, even if plausible, do not ordinarily overcome the defendant’s

burden in challenging the sufficiency of the evidence.”).

b. July 5, 2017, Robbery (Turner)

Turner was convicted of a robbery which occurred on July 5, 2017 (Counts 32–34). At

that robbery, three men—Turner, Lewis, and another Concrete Cartel member, William Pinkney—

entered a CVS wearing masks and armed. A pharmacist in the store was able to call 911, but one

of the three men found the pharmacist and fired a shot as he ordered him to the pharmacy. The

men ultimately fled after hearing the sirens.

The police officer who responded to the scene saw Lewis running across the parking lot

next to the CVS and apprehended him. He was wearing latex gloves and was in possession of a

gun. Thereafter, Lewis began vomiting in the officer’s car and he was taken to the hospital for

medical treatment. Subsequently, another officer saw two men run across the street from the CVS.

He and several other officers searched the area and found Turner and Pinkney hiding in a large

commercial dumpster. When questioned regarding what they were doing there, Pinkney told the

officer “he live[d] there.”

At the place where Pinkney and Turner were apprehended, police found latex gloves and a

gun. And nearby, the police officers found a red sweatshirt, which the surveillance video showed

matched the sweatshirt worn by one of the robbers. The video showed that the masked robber in

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the red sweatshirt also wore gray sweatpants and blue sneakers—both of which Turner wore when

he was apprehended. In addition, the clothing worn by the second robber in the video—black

pants, black Nike sneakers, and a black coat—matched the clothing worn by Pinkney at the time

of his arrest.

Turner contends that this evidence was insufficient to support his convictions because there

was no direct testimony identifying him as a perpetrator in the robbery; he was not found in

possession of any stolen items, narcotics, or firearms; and he did not confess to any involvement

in the robbery. Turner argues that “mere proximity [is] insufficient to establish that a defendant

aided and abetted in the commission of a criminal offense.”

Here, however, evidence beyond mere proximity to the robbery exists. Indeed, the

arresting officer testified that the clothing which Turner and Pinkney wore when they were arrested

matched the clothing worn by the two robbers in the video. Photographs were also submitted for

the jurors to draw their own independent conclusions. And Turner omits the fact that when he was

apprehended by the police, latex gloves and a gun were also found in the dumpster area. Turner

provides no analysis to explain why this evidence would be insufficient for a jury to conclude that

he was a perpetrator of the robbery. The jury is entitled to “tak[e] into account ‘their own wisdom,

experience, and common sense’ when evaluating the evidence admitted at trial.” Thompson v.

Parker, 867 F.3d 641, 648 (6th Cir. 2017) (quoting Doan v. Brigano, 237 F.3d 722, 734 (6th Cir.

2001)). Based on the evidence and construing it in the light most favorable to the jury verdict, a

rational jury could find, as this jury did, that Turner was one of the perpetrators of this robbery.

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B. Constitutional Challenges

Turner and Rayford raise one constitutional challenge. Both contend that their Sixth

Amendment right to a public trial was violated by the exclusion of two spectators from the trial

for approximately twenty minutes.

The facts regarding this issue are not disputed by the parties. On June 6, 2019, Defendant

Turner’s girlfriend, Jerrica Tyson, was present for the trial with a female companion. During trial,

Deputy U.S. Marshal Cook observed Tyson and her friend speaking loudly and distracting jurors.

Consequently, he made eye contact with them to indicate that they stop speaking loudly.

The next day, Tyson and her friend were present again. Throughout the day, Deputy

Marshal Cook observed them speaking loudly, at which point he asked them both to come out in

the hallway. He told them to stop speaking during the proceedings and then allowed them to re-

enter the courtroom. When they re-entered the courtroom, the Government was engaged in the

direct examination of one of its witnesses. This time, a case agent for the Government, Officer

Scott Edwards, recognized Ms. Tyson and noticed that she was holding a notepad with the word

“snitch” written on it and the names “Issue Cooks” and “Michael Taylor.” Officer Edwards

became suspicious that Tyson could be attempting to intimidate a witness and requested that she

follow him out of the courtroom to the hallway. When Turner realized that she had left the

courtroom, he directed Tyson’s companion to find out what had happened. Deputy Marshal Cook

then followed the companion outside, at which point Cook told her and her friend that they could

not attend the trial for the rest of the day. At that time, Officer Edwards also seized Tyson’s

notebook, took a picture of her driver’s license, and told her to leave the trial. About twenty

minutes later, the Government’s witness completed his direct examination, and the court recessed

for lunch.

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During lunch, the court was informed of the incident. The district judge stated that he

“didn’t know anything like that was going on” and was “very concerned about it.” The court gave

defense counsel an opportunity to contact Tyson and her friend and ask them to return, which

defense counsel declined to do. After the jury was dismissed for the day, Turner’s counsel moved

for a mistrial.

The following morning, the court decided that it needed a hearing to develop the issue on

the record. Following the receipt of testimony and evidence on the record, the court concluded

that there had been no courtroom closure that implicated the Sixth Amendment and therefore

denied Turner’s motion for a mistrial. The court stated that it “did not take an affirmative step to

prevent anyone from entering into the court.” The court reiterated that Tyson and her companion

were only excluded for about 20 minutes, after which it “gave the defense an opportunity to call

and have them come back” but “they declined.” The court also ruled that even if the exclusion

constituted a partial courtroom closure under the Sixth Amendment, it was permissible because

preserving court decorum and addressing potential threats to witnesses provided a substantial

reason to ask the spectators to leave. It noted that the response was sufficiently tailored to the

circumstances.

In considering whether a courtroom closing violated the Sixth Amendment, questions of

law are reviewed de novo and questions of fact are reviewed for clear error. United States v.

Simmons, 797 F.3d 409, 412 (6th Cir. 2015).

In general, depriving a defendant of his or her Sixth Amendment right to a public trial is a

“structural defect affecting the framework within which the trial proceeds” that requires reversal

regardless of whether the defendant demonstrates that the error prejudiced some substantive right.

See Arizona v. Fulminante, 499 U.S. 279, 310 (1991). But “[i]t does not necessarily follow . . .

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that every deprivation in a category considered to be ‘structural’ constitutes a violation of the

Constitution or requires reversal of the conviction, no matter how brief the deprivation or how

trivial the proceedings that occurred during the period of deprivation.” Gibbons v. Savage,

555 F.3d 112, 120 (2d Cir. 2009). Indeed, “courts have consistently refused to find Sixth

Amendment violations when a courtroom closure is so limited.” United States v. Arellano-Garcia,

503 F. App’x 300, 305 (6th Cir. 2012) (citing Gibbons, 555 F.3d at 121; United States v. Perry,

479 F.3d 885, 890–91 (D.C. Cir. 2007); United States v. Al-Smadi, 15 F.3d 153, 154–55 (10th Cir.

1994); United States v. Sherlock, 962 F.2d 1349, 1357–58 (9th Cir. 1989)). In such cases, a

defendant’s Sixth Amendment right hinges on whether the asserted closure contravenes the values

advanced by the public trial guarantee, “which include (1) ensuring a fair trial; (2) reminding the

government and the judge ‘of their responsibility to the accused and the importance of their

functions’; (3) encouraging witnesses to come forward; and (4) discouraging perjury.” United

States v. Greene, 431 F. App’x 191, 195 (3d Cir. 2011) (quoting Peterson v. Williams, 85 F.3d 39,

43 (2d Cir. 1996)).

In Greene, the Third Circuit dealt with a “closing” similar to this one. There, a court

security officer—unbeknownst to the court—temporarily excluded the defendant’s brother from

the courtroom. Id. at 193–94. In concluding that the closing was sufficiently limited that it did

not implicate the Sixth Amendment, the Third Circuit focused on the facts that the partial closure

occurred unbeknownst to the district judge; the closure was limited in scope and therefore unlikely

to jeopardize the aims served by the Sixth Amendment; and the closure was not subsequently

ratified by any affirmative act of the court. Id. at 196–97. Here, too, the partial closure occurred

without the district judge’s knowledge—in fact, the district judge was not notified until after the

two spectators had already been excluded. At that point, the district judge instructed the defense

-17- Nos. 19-6148/6186/6253/6352, United States v. Lewis, et al.

counsel to notify Tyson and her companion that they could return to the courtroom, which defense

counsel ultimately declined to do. In addition, the district judge specifically admonished the

Government for its actions, indicating that it was not ratifying that action. Although the

Government’s actions in this circumstance are troubling, based on the entire record, we cannot say

that the incident implicated Defendants’ Sixth Amendment rights because the incident did not

undermine the values advanced by the public trial guarantee.

C. Evidentiary Challenges

Turner and Nesby both raise several evidentiary challenges, which they contend warrant

reversal of their convictions. We address the challenges in turn.

In general, evidentiary rulings are reviewed for abuse of discretion. See United States v.

Johnson, 581 F.3d 320, 326 (6th Cir. 2009). However, a district court’s ultimate legal conclusion

as to admissibility is reviewed de novo. United States v. Maliszewski, 161 F.3d 992, 1007 (6th

Cir. 1998). Any evidentiary error is also subject to harmless error analysis. See United States v.

Kettles, 970 F.3d 637, 643–45 (6th Cir. 2020).

2. Turner’s Challenges

Turner raises four evidentiary challenges. First, he contends that the district court abused

its discretion by admitting a post-arrest jail call between Lewis and an unidentified individual to

whom Lewis made admissions about the July 5, 2017, robbery and mentioned Turner’s

involvement by referring to his nickname, “Star.” At trial, Lewis invoked his Fifth Amendment

right not to testify and therefore was unavailable under the Federal Rules of Evidence. Turner

objected, arguing that the jail-cell records were inadmissible against him and that the admission

violated the Confrontation Clause of the Sixth Amendment. The Government maintained that the

-18- Nos. 19-6148/6186/6253/6352, United States v. Lewis, et al.

statements were admissible against Lewis as admissions of a party opponent under Federal Rule

of Evidence 801(d)(2)(3) and admissible against Turner as statements against penal interest under

Federal Rule of Evidence 804(b)(3), and also requested a limiting instruction stating that the

evidence could be used only against Lewis, not Turner. The district court agreed to the limiting

instruction, telling the jury to disregard any reference to Turner in the records and that the records

should not be used for any purpose other than to determine Lewis’s guilt.

Turner continued to maintain that the records were inadmissible against him, but retracted

his Sixth Amendment argument, asserting instead that the statement was inadmissible under the

Federal Rules of Evidence and should result in a mistrial because the curative instruction was

inadequate. The district court disagreed, concluding that the limiting instruction was an adequate

curative measure. When the jury later retired to deliberate, the court again reiterated its instruction

that the jail call between Lewis and the unidentified individual could only be used “in deciding

whether the government proved [Lewis] guilty” and the jury could not “consider it in any way

against any of the other defendants.”

On appeal, Turner maintains that the district court erred when it allowed hearsay to be

admitted under the “co-conspirator” exception. Turner also argues that the admission of the

statements was not harmless, but cites caselaw under the Confrontation Clause, because the jury

instruction was inadequate to limit the jury’s use of such an incriminating statement. The

Government responds that the court did not abuse its discretion because the judge issued a limiting

instruction to the jury, the statements could have been admitted against Turner as a statement

against penal interest by Lewis under Federal Rule of Evidence 804(b)(3), and the admission

constituted harmless error.

-19- Nos. 19-6148/6186/6253/6352, United States v. Lewis, et al.

Regarding prejudice, the district court issued limiting instructions to the jury on two

occasions to limit the jury’s consideration of the calls as to Lewis only, and not Turner. Juries are

generally presumed to follow their instructions. See United States v. Johnson, 803 F.3d 279, 282

(6th Cir. 2015). The district court therefore did what the Federal Rules of Evidence require: it

“restrict[ed] the evidence to its proper scope and instruct[ed] the jury accordingly.” Fed. R. Evid.

105.

As to harmless error, moreover, despite Turner’s concerns about the effectiveness of the

jury instructions, the other evidence that Turner committed the July 2017 robbery was

substantial—and a sufficient basis for a reasonable jury to conclude that Turner was implicated in

the robbery. The record includes the following. Turner was apprehended near a dumpster near

the CVS following the robbery. He was wearing grey sweatpants and blue sneakers, and a red

sweatshirt was located near the dumpster—all of which matched one of the perpetrators shown by

the security camera. A gun and latex gloves were also found in the dumpster area. And finally,

the clothes that Pinkney—who was also apprehended in the dumpster area with Turner—matched

the clothes that were worn by the other perpetrator in the security camera. In short, these facts

would permit a reasonable jury to conclude that Turner was a perpetrator in the July 2017 robbery.

Thus, the admission of the jail calls against Lewis did not have “a substantial and injurious effect

or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)

(quoting Kotteakos v. United States, 328 U.S. 750, 775 (1946)).

Turner’s reliance on Bruton v. United States, 391 U.S. 123, 135–36 (1968), a case

involving the Confrontation Clause, in his harmless error analysis is misplaced. There, the

Supreme Court found that “there are some contexts in which the risk that the jury will not, or

cannot, follow instructions is so great, and the consequences of failure so vital to the defendant,

-20- Nos. 19-6148/6186/6253/6352, United States v. Lewis, et al.

that the practical and human limitations of the jury system cannot be ignored.” Id. at 135. This

concern is particularly salient in testimonial situations, “where the powerfully incriminating

extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are

deliberately spread before the jury in a joint trial. . . . The unreliability of such evidence is

intolerably compounded when the alleged accomplice . . . does not testify and cannot be tested by

cross-examination.” Id. at 135–36. But as the district court concluded, and as Turner’s counsel

conceded, the Sixth Amendment is not implicated in this case because it does not involve

testimony. Thus, because the Sixth Amendment is not implicated, those concerns do not apply

with the same force here. And Turner points to no other error constituting prejudice in admitting

the statements against Lewis. For these reasons, and in reviewing the entire record, it is clear “that

the judgment was not substantially swayed by the error.” United States v. Warman, 578 F.3d 320,

340 (6th Cir. 2009) (quoting Kotteakos, 328 U.S. at 765).

Second, Turner challenges the district court’s admission of Lewis’s post-arrest statements.

At trial, during its direct examination of an arresting officer, the Government elicited the following

testimony regarding Lewis’s statements at the time of his arrest:

Q. And did the person say anything to you? A. Once the arrest was made? Q. Yes. A. He said a few words as far as being arrested or he don’t have anything on him at the time. Q. Did he say anything else to you specifically about if you were somebody else? A. Oh, yes. Once we was in the hospital and my bodycam at this time, it was going out, made a statement if I was a white person he probably would have killed me.

-21- Nos. 19-6148/6186/6253/6352, United States v. Lewis, et al.

Q. A white person or white cop? A. A white cop.

(R. 669, PageID 4939–40)

Following this exchange, Turner’s counsel—not Lewis’s counsel—objected to the

statement—“if I was a white person, he probably would have killed me”—contending that such a

statement was not relevant under Federal Rule of Evidence 401. The district court concluded that

it was “marginally” relevant as a statement of a party opponent that was made at the time he was

arrested. On appeal, Turner contends that because “the Government is seeking to prove a robbery

and, more broadly, a racketeering conspiracy, the officer’s testimony as to a co-defendant’s

potential racial prejudice or animus towards police officers is wholly unrelated, irrelevant, and in

fact highly inflammatory, such that the admission of said testimony by the district court was an

abuse of discretion.” Turner’s argument focuses on the prejudicial effect of the entry of that

statement, which implicates Fed. R. Evid. 403.

In general, a district court’s determination of relevance under Fed. R. Evid. 403 is given

substantial deference, and a district court’s “decision will not be disturbed if substantial injustice

did not result.” United States v. Cleveland, 907 F.3d 423, 436 (6th Cir. 2018) (quoting Kovacevich

v. Kent State Univ., 224 F.3d 806, 832 (6th Cir. 2000)).

Setting aside whether the statement was relevant under Fed. R. Evid. 401, and the analysis

of the probative value of the evidence, Turner has not pointed to any substantial injustice that

resulted from its inclusion on the record that would warrant exclusion under Federal Rule of

Evidence 403 or demonstrate that the admission of the statement did not constitute harmless error.

While he points out “the lack of diversity among the venire” and significant concerns of racial

prejudice and bias, all of which are well taken, he does not explain how the admission of this

-22- Nos. 19-6148/6186/6253/6352, United States v. Lewis, et al.

testimony alone led the jury to convict him on impermissible grounds. The testimony does not

nullify the other evidence that the Government presented against him, based on which the jury was

reasonably allowed to draw its own conclusions as to Turner’s guilt. Because Turner points to no

substantial injustice resulting from the admission of this statement, the district court did not err in

permitting the testimony.

Third, Turner contends that the district court “erred in allowing testimony related to the jail

fight that occurred between a cooperating witness and two co-defendants because there was

improper notice of the Government’s intent to introduce said evidence which resulted in severe

prejudice to Turner’s defense.” In so arguing, Turner relies on Federal Rule of Criminal Procedure

16, Brady v. Maryland, 373 U.S. 83 (1963), and Federal Rule of Evidence 403.

By way of background, shortly before trial, the Government learned that Turner and Nesby

had “physically attacked” McCalleum, a cooperating witness, in prison and called him a “snitch.”

On the same day, the Government informed Turner and Nesby’s counsel of the discovery and

directed the U.S. Marshal to investigate. On June 4, 2019, the Government received an e-mail

from the prison, which the Government disclosed to defense counsel, stating that the incident had

occurred and was captured on video. Thereafter, the Government learned that the prison was no

longer in possession of the video because videos are only retained for 90 days, and the incident

had occurred in February 2019. Turner sought to exclude evidence about the incident on the

grounds that he had received inadequate notice. The district court denied the motion, concluding

that the Government acted in good faith, with reasonable diligence, and that Defendants

themselves were present and involved in the incident and could testify about it.

We address in turn each argument raised by Turner regarding the jail fight. Federal Rule

of Criminal Procedure 16 requires the Government to disclose documents if they are “within the

-23- Nos. 19-6148/6186/6253/6352, United States v. Lewis, et al.

government’s possession, custody, or control” and material to a defendant’s defense, intended for

presentation during the government’s case-in-chief, or obtained from or belonging to defendant.”

Fed. R. Crim. P. 16(a)(1)(E). Alleged violations under Federal Rule of Criminal Procedure 16 are

reviewed by considering: “(1) the reasons for any delay in producing materials, including ill intent

or bad faith; (2) the degree of prejudice, if any to the defendant; and (3) whether any prejudice

may be cured with a less severe course of action like a continuance or a recess.” United States v.

Robinson, 272 F. App’x 421, 433 (6th Cir. 2007). “[S]uppression of evidence must be viewed as

an undesirable remedy reserved for cases of incurable prejudice or bad faith conduct demanding

punishment by the court.” United States v. Maples, 60 F.3d 244, 247 (6th Cir. 1995).

There is no dispute among the parties that the Government did not act in bad faith. While

Turner argues that the failure to disclose led to “incurable prejudice,” it appears, as the district

court concluded, that these concerns could have been addressed by rebuttal evidence. The

individuals implicated in the fight were co-Defendants at trial, and Turner could have testified

regarding his own knowledge of what transpired. Turner provides no response as to why his own

testimony would have been insufficient to rebut the testimonial evidence that the district court

permitted. Accordingly, the record does not show error under Federal Rule of Criminal Procedure

16.

Next, Turner relies on Brady v. Maryland, 373 U.S. 83 (1963), asserting that “the

Government had a duty to timely provide defendants with exculpatory evidence.” True, but here

the evidence—that Turner and Nesby attacked a cooperating witness because he divulged

confidential and incriminating information—does not aid in proving Turner’s innocence. To the

contrary, it points to his participation in the enterprise and the inner workings of that enterprise.

In other words, the evidence here is inculpatory, not exculpatory, and thus Brady is inapposite.

-24- Nos. 19-6148/6186/6253/6352, United States v. Lewis, et al.

Finally, Turner relies on Federal Rule of Evidence 403 to contend that the probative value

of the testimony was outweighed by the fact that other “testimony to that same effect had already

been produced for the jury’s consideration.” Turner concedes that the evidence here contains some

probative value, particularly regarding his participation in the enterprise and the inner workings of

that enterprise. Further, he does not provide any analysis as to why entry of this testimony was so

prejudicial, even if other testimony on the record had been produced on the point, as to outweigh

that probative value. Accordingly, the district court did not abuse its broad discretion in permitting

the testimony under Rule 403. See United States v. Paulsen, 655 F.3d 492, 509 (6th Cir. 2011)

(describing the district court’s broad discretion under Rule 403).

The fourth and last evidentiary challenge by Turner is his assertion that the district court

“erroneously admitted jail calls into evidence because the Government failed to establish an

evidentiary foundation and failed to properly authenticate the jail calls.”

At trial, the Government introduced recordings of jail calls through Officer Ruben

Ramirez, the investigator at the Shelby County Sheriff’s Office, who was assigned to monitor

detainee phone calls. Officer Ramirez explained that each detainee is assigned a unique “RNI

number” which each detainee is required to enter when making a phone call. To identify calls by

a specific detainee, he uses the detainee’s RNI number, and information from other databases, such

as arrest histories, emergency contacts, and frequently dialed numbers. In addition, detainees are

instructed to state their names at the beginning of calls, but sometimes they use nicknames or street

names. At trial, Officer Ramirez testified that he identified phone calls from Turner using Turner’s

RNI number and the fact that the caller identified himself as “Star.” Several witnesses at trial

testified that “Star” was Turner’s nickname.

-25- Nos. 19-6148/6186/6253/6352, United States v. Lewis, et al.

Turner objected to the admission of the calls, contending that they lacked foundation

identifying him as the caller. The district court denied the objection, concluding that the use of

Turner’s RNI number to identify the calls and the use of the caller identification as “Star” was

sufficient foundation.

Turner now contends that the use of the nickname “Star” is not enough to authenticate the

call under Federal Rule of Evidence 901. He argues that the nickname “is not a form of reliable

self-identification because there are countless individuals who could likely go by the same

nickname.” And “Turner’s voice was never identified by an individual who knew his voice [so] .

. . it is possible that another inmate could have used Turner’s PIN number to make phone calls in

question or rather use [sic] an alias associated with someone else in order to avoid the detection

by authorities.”

Federal Rule of Evidence 901(a) states that “the proponent must produce evidence

sufficient to support a finding that the item is what the proponent claims it is.” The rule demands

only enough proof to allow that “a reasonable juror could find in favor of authenticity or

identification,” and “[t]he rest is up to the jury.” United States v. Jones, 107 F.3d 1147, 1150 n.1

(6th Cir. 1997) (quoting 5 JACK B. WEINSTEIN ET AL., WEINSTEIN’S EVIDENCE ¶ 901(a)[01], 901–

19 (1996)). Other circuits have held that self-identification on a call, alone, is not sufficient to

authenticate the caller’s identity. See United States v. Khan, 53 F.3d 507, 516 (2d Cir. 1995);

United States v. Pool, 660 F.2d 547, 560 (5th Cir. Unit B 1981).

Turner has provided no reason to conclude that the combination of circumstances—the use

of Turner’s RNI number to make the call and the statement of his nickname at the beginning of

the call—was insufficient to provide the jury with reasonable facts from which to draw a

conclusion. And in a similar case, the Eleventh Circuit found that the combination of the caller’s

-26- Nos. 19-6148/6186/6253/6352, United States v. Lewis, et al.

self-identification and the detainee’s unique identification number was sufficient to authenticate

the call. See United States v. Harris, 338 F. App’x 892, 895 (11th Cir. 2009) (per curiam). On

this record, the district court did not abuse its discretion in admitting the calls into evidence.

3. Nesby’s Challenges

Nesby raises one evidentiary challenge. He contends that the district court impermissibly

allowed “other-acts evidence” under Fed. R. Evid. 404(b). Specifically, he argues that the

Government improperly introduced evidence of: (1) robberies committed by other Defendants (not

Nesby); (2) Nesby and Turner’s altercation with McCalleum in prison; and (3) Rayford’s

participation in two shootings.

Federal Rule of Evidence 404(b)(1) provides that “[e]vidence of any other crime, wrong,

or act is not admissible to prove a person’s character in order to show that on a particular occasion

that person acted in accordance with the character.” The district court rejected Nesby’s assertion

because “the evidence was direct proof of the criminal charges against defendants.”

“Rule 404(b) is not implicated when the other crimes or wrongs evidence is part of a

continuing pattern of illegal activity.” United States v. Barnes, 49 F.3d 1144, 1149 (6th Cir. 1995)

(emphasis added). As here, a continuing pattern of illegal activity may include a criminal

conspiracy, United States v. Tripp, 782 F.2d 38, 41 (6th Cir. 1986), or a racketeering enterprise,

United States v. Nicholson, 716 F. App’x 400, 420 (6th Cir. 2017). Thus, Nesby is mistaken in

relying on Rule 404(b) because the Government sought to use evidence of his crime not to prove

character, but to establish an ongoing, continuing pattern of illegal activity. Barnes, 49 F.3d at

1149.

-27- Nos. 19-6148/6186/6253/6352, United States v. Lewis, et al.

D. Conviction and Sentencing Challenges

Alexander raises a challenge regarding his conviction, and Turner raises a challenge

regarding his sentence. We address these challenges in turn.

1. Conviction Challenge (Alexander)

Alexander contends that his convictions under 18 U.S.C. § 924(c)—which requires that he

knowingly use, carry, brandish and discharge a firearm—must be vacated because Hobbs Act

robbery under 18 U.S.C. § 1951(b)(1) is not a “crime of violence” as defined in § 924(c)(3)(A).

Relying on United States v. Davis, -- U.S. --, 139 S. Ct. 2319 (2019), Alexander contends that “it

is unclear whether [he] was convicted under the elements clause of § 924(c)(3)(A) or the residual

clause of § 924(c)(3)(B) . . . [and] a conviction under the residual clause is unconstitutionally

vague.” Based on the statutory definition for “robbery,” Alexander also argues, “robbery can be

defined in such a way that robbery does not necessarily contain an element the use, attempted use,

or threatened use of physical force.”

But as Alexander concedes, in United States v. Gooch, 850 F.3d 285, 292 (6th Cir. 2017),

we specifically held that a conviction under § 1951(b)(1) constitutes “a crime of violence” under

§ 924(c)(3)(A). And after Davis was decided, we held that “Gooch remains good law.” United

States v. Holmes, 797 F. App’x 912, 918 (6th Cir. 2019); see also Porter v. United States, 959 F.3d

800, 804 (6th Cir. 2020). Because Alexander was convicted under § 924(c)(3) in relation to a

crime of violence—Hobbs Act Robbery—that conviction satisfies the elements clause.

Accordingly, vacatur is not warranted on these grounds.

2. Sentencing Challenge (Turner)

Turner challenges his sentence on three grounds. First, he contends that using acquitted

conduct to determine a sentence violates Turner’s Sixth Amendment rights and his Fifth

-28- Nos. 19-6148/6186/6253/6352, United States v. Lewis, et al.

Amendment right to due process. Second, he contends that the acquitted conduct used to enhance

his offense level was not proven by a preponderance of the evidence. Finally, Turner asserts that

the acquitted conduct used was not relevant conduct under § 131.3(a)(1) of the Sentencing

Guidelines.

Turner was acquitted of the counts associated with the CVS robbery on June 18, 2015. On

that day, three men—armed and wearing masks—entered a CVS drugstore around 11 p.m. and

ordered everyone down on the floor. One of the men jumped over the counter and handed a piece

of paper to the pharmacist containing a list of drugs demanded. The armed man held the

pharmacist at gunpoint, ordering her to place the drugs on the list in his bag. Once the pharmacist

had done so, and placed money in the bag from the cash register, the men fled. But the men left

the paper that listed the drugs at the pharmacy.

Police found another member of the Concrete Cartel, Arterrious Tate, driving in the

vicinity. When asked why he was in the area, Tate averred that he was coming from a Taco Bell,

but there was a “divided roadway” that blocked the Taco Bell from the area where Tate was

stopped, but that explanation made little sense. Later, a forensic examiner recovered Turner’s

fingerprints from the piece of paper demanding drugs. When police questioned Turner about his

fingerprints on the note, Turner responded that he had written on a lot of “notebook paper” even

though the police had not revealed that the note was written on notebook paper. At sentencing,

the district judge found that these facts established by a preponderance of the evidence that Turner

was involved in the June 18, 2015, robbery.

The district judge thereafter found the conduct relevant under USSG § 1B1.3(a)(1) and

used the acquitted conduct in determining Turner’s sentence to calculate the offense level for

Turner’s RICO conspiracy pursuant to USSG § 2E1.1(a). The court’s ruling resulted in a

-29- Nos. 19-6148/6186/6253/6352, United States v. Lewis, et al.

combined offense level of 35 for Turner’s convictions on Counts 1, 32, and 33, and with a criminal

history category of I, yielding an advisory range of 168 to 210 months of imprisonment. Turner’s

§ 924(c) conviction on Count 33 carried a mandatory sentence of 120 months of imprisonment.

The court ultimately varied downward from the advisory range and sentenced Turner to 120

months of imprisonment on Counts 1, 32, and 34 (to run concurrently) and a consecutive sentence

on Count 33 of 120-months, resulting in 240 months of imprisonment.

The district court’s finding of fact at sentencing are reviewed for clear error and its legal

conclusions de novo. United States v. Donadeo, 910 F.3d 886, 893 (6th Cir. 2018).

We begin with Turner’s constitutional challenge to the use of acquitted conduct. Our

binding precedent in United States v. White, which held that a district court’s consideration of

acquitted conduct in sentencing under an advisory guidelines system does not violate the Sixth

Amendment, constrains us to conclude that the use of acquitted conduct in sentencing is not a

violation under the Constitution. 551 F.3d 381, 383–84 (6th Cir. 2008) (en banc).

As to the substantive merits of the district court’s determination, the district court clearly

set forth its reasoning for the findings of fact that led it to conclude that a preponderance of the

evidence supported Turner’s involvement and also explained why that conduct was relevant under

the Guidelines. The court relied on the findings that: Turner’s fingerprint was found on the note;

Turner made a statement regarding notebook paper to the investigator without anyone ever telling

him that his fingerprint was on notebook paper; Tate—a fellow Concrete Cartel member—was in

the area and driving suspiciously; and Tate turned out to be Turner’s “right-hand man.” The court

concluded that this evidence showed it was “more likely than not” that Turner was involved, or at

least “aided, abetted, willfully caused, counseled, commanded [the robbery], or [the robbery was]

jointly under[taken] activity that was reasonably foreseeable” to Turner. That Turner now raises

-30- Nos. 19-6148/6186/6253/6352, United States v. Lewis, et al.

an alternative, and arguably plausible, explanation of the events does not render erroneous the

district court’s conclusion and weighing of evidence. See Anderson v. Bessemer City, 470 U.S.

564, 574 (1985). Based on those facts, we perceive no error in the district court’s legal conclusion

that a preponderance of the evidence supported Turner’s involvement.

Finally, with respect to Turner’s challenge to the district court’s conclusion that these facts

constitute relevant conduct under the Guidelines, USSG § 1B1.3(a)(1) provides two avenues for

defining relevant conduct. First, under USSG § 1B1.3(a)(1)(A), “all acts and omissions

committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the

defendant” is relevant conduct that could be used to enhance a sentence. Second, under USSG

§ 1B1.3(a)(1)(B), relevant conduct is also defined as conduct “in the case of a jointly undertaken

criminal activity . . . , all acts and omissions of others that were (i) within the scope of the jointly

undertaken criminal activity; (ii) in furtherance of that criminal activity; and (iii) reasonably

foreseeable in connection with that criminal activity.” Critically, as to both subsections, the

conduct must have “occurred during the commission of the offense of conviction, in preparation

for that offense, or in the course of attempting to avoid detection or responsibility for that offense.”

Id.

The district court found that the conduct was relevant under both § 1B1.3(a)(1)(A) and

§ 1B1.3(a)(1)(B), but that either one would be sufficient to sustain the sentence determination. As

to Section (A), which Turner does not address, the record evidence supported the district court’s

conclusion that it was more likely than not that Turner himself was involved in the robbery and

that the robbery was relevant conduct related to the RICO conspiracy, given the similarities

between this robbery and the other robberies implicated in the RICO conspiracy. Based on this,

we therefore find no error in the district court’s consideration of the robbery as relevant conduct

-31- Nos. 19-6148/6186/6253/6352, United States v. Lewis, et al.

under § 1B1.3(a)(1)(A). Because the district court’s findings under § 1B1.3(a)(1)(A) support the

sentence, we need not address Turner’s argument that his conduct was not relevant under

§ 1B1.3(a)(1)(B).

III. CONCLUSION

For the reasons set forth above, we AFFIRM the judgments of the district court in their

entireties.

-32-